The Protocol on Ireland/Northern Ireland Contents

Chapter 13: Democratic consent (Article 18)

Overview

288.Article 18 of the Protocol provides a mechanism for the UK to “provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5 to 10”, namely the Articles on: customs and movement of goods; protection of the UK internal market; technical regulations etc.; VAT and excise; the Single Electricity Market; and State aid. The other Articles of the Protocol, including on: the rights of individuals; the Common Travel Area; the customs territory of the UK; North-South cooperation; implementation, application, supervision and enforcement; common provisions; the Specialised Committee and Joint Consultative Working Group; safeguards; and protection of financial interests; are not subject to the consent mechanism, and, other than where they relate to Articles 5–10, will therefore continue to apply (unless, in line with Article 13(8), any of these provisions are superseded by a subsequent UK-EU agreement).

289.The democratic consent mechanism works as follows. Two months before the end of an “initial period”234 of four years after the transition period expires, the UK will seek the Northern Ireland Assembly’s view on these arrangements, “in a manner consistent with the 1998 Agreement”. In other words, assuming the transition period ends on 31 December 2020, the UK Government will have to seek the Assembly’s views on extension of the Protocol’s provisions no later than 31 October 2024.

290.The Protocol states that the UK retains the unilateral right to decide the precise decision-making process.235 Alongside the Protocol, the Government published a ‘unilateral declaration’ detailing its interpretation of the consent mechanism. Its provisions are set out in Box 1.

Box 1: Declaration by the Government concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland

At the time that the Government published the revised Withdrawal Agreement it also issued a ‘unilateral declaration’ detailing its interpretation of the consent mechanism set out in the Protocol. It includes contingency arrangements if, at the time that the deadline arrives for the Northern Ireland Assembly to express its view, Northern Ireland’s devolved institutions are suspended.

The unilateral declaration affirms that the “objective of the democratic consent process” in the Protocol “should be to seek to achieve agreement that is as broad as possible in Northern Ireland and, where possible, through a process taken forward and supported by a power sharing Northern Ireland Executive which has conducted a thorough process of public consultation”. It continues that this should “include cross-community consultation, upholding the delicate balance of the 1998 Agreement, with the aim of achieving broad consensus across all communities to the extent possible”.

The Government undertakes to provide appropriate assistance to the Northern Ireland Executive in “any prior consultation with businesses, civil society groups, representative organisations (including of the agricultural community) and trade unions; and to do the same for Members of the Legislative Assembly, if at the time that consent is sought, neither the Northern Ireland Executive or the Legislative Assembly are operating”.

The declaration emphasises that the process for seeking consent to the ongoing operation of the Protocol on Ireland/Northern Ireland will have no bearing on the “constitutional status of Northern Ireland”, which remains subject to the provisions of the 1998 Belfast/Good Friday Agreement.

Paragraph 1 commits the Government to legislate for the requisite “democratic consent process”. Paragraph 2 sets out the Government’s promise to notify the relevant Northern Ireland officials of the date of any vote and the outcome to the EU. Paragraph 3 reflects the process set out in the Protocol. Paragraph 4 sets out a mechanism under which “any Member of the Legislative Assembly” can table a motion for the consent process where one “has not been proposed by the First Minister and deputy First Minister, acting jointly”.

Paragraphs 5 and 6, headed ‘Alternative process’, enjoin the UK Government to “provide for an alternative democratic consent process in the event that it is not possible to undertake the democratic consent process in the manner provided”. Such an alternative process must permit “democratic consent to be provided by Members of the Legislative Assembly if the majority of the Members of the Legislative Assembly, present and voting, vote in favour of the continued application of Articles 5 to 10 of the Protocol on Northern Ireland and Ireland in a vote specifically arranged for this purpose”.

Source: HM Government, Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland (19 October 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840232/Unilateral_Declaration_on_Consent.pdf [accessed 28 May 2020]

291.If a “majority of Members of the Northern Ireland Assembly” vote in favour of continued application of Articles 5–10 of the Protocol, they will be extended for a “subsequent period” of four years.236 If the Assembly’s decision in addition reflects “cross-community support”, the arrangements will be extended for a “subsequent period” of eight years. The Protocol defines “cross-community support” as either “a majority of those Members of the Legislative Assembly present and voting, including a majority of the unionist and nationalist designations”, or a “weighted majority (60%) of Members … including at least 40% of each of the nationalist and unionist designations present and voting”.237 Further votes will follow at the end of each subsequent period.

292.Paragraphs 7–9 of the unilateral declaration state that, in the event that consent is provided by a simple majority but without cross-community support, the UK Government will also commission an “independent review into the functioning of the Northern Ireland Protocol and the implications of any decision to continue or terminate alignment on social, economic and political life in Northern Ireland”. Such a review will make recommendations on a way forward and will conclude within two years of the vote.

293.If the Assembly does not express its consent, then Articles 5–10 of the Protocol will cease to apply to Northern Ireland two years after the “initial” or, as the case may be, “subsequent” period expires. In this eventuality, the Joint Committee will make recommendations to the UK and the EU on necessary measures, which must take into account the obligations imposed by the 1998 Belfast/Good Friday Agreement. In so doing, the Joint Committee may seek an opinion from the institutions created under that Agreement.

Analysis

294.The then Secretary of State for Exiting the European Union, Rt Hon. Stephen Barclay MP, described the inclusion of a consent mechanism as the “overarching change” the Government had secured in its renegotiation of the Protocol. In his view, it created a “shared incentive to minimise [the] burdens and impacts” created by the application of the trade rules proposed in the Protocol.238 He argued that “there is a strong interest” for the EU to make the trade rules set down in the Protocol “work in the most proportionate and pragmatic way because it is subject to consent by the Northern Ireland Assembly at the end of four years”.239

295.The Government’s Command Paper developed this point:

“The Protocol is not codified as a permanent solution; it is designed to solve a particular set of problems and it can only do this in practice as long as it has the consent of the people of Northern Ireland … The implementation of the Protocol must therefore reflect the reality that the alignment provisions may not be in place for ever. The only arrangement that is likely to be enduring is one that is flexible and can adapt.”240

296.On the other hand, Colin Murray said that “there is almost an unreality to the question in that the call is massive for the Northern Ireland economy. It is a one-stop question. There are no gradations of being in or out; you take this call and potentially everything changes as soon as that happens.” He believed that there was thus “almost a chimera of democratic accountability in the process”.241 Dr Viviane Gravey stressed that the perpetual prospect of changes to arrangements for trade “could be very problematic for all businesses here, not knowing which way to turn”.242

297.Professor David Phinnemore said that there was a lack of awareness that the democratic consent provisions only applied to Articles 5–10 of the Protocol. He said that the consent mechanism meant that the Protocol would remain a politically sensitive issue in Northern Ireland, particularly in the lead-up to votes. He was concerned that the Protocol would become “very politicised, particularly in the context of increasing discussion about the constitutional future of Northern Ireland”. While the assumption was that there was likely to be a majority in favour of keeping the Protocol, “we have the lived experience of the implications of checks, controls and differentiation between Northern Ireland and the UK to come. We do not know what the economic implications of those arrangements will be.”243

298.The Government has stated that, in the event that the Northern Ireland Assembly withdrew its consent to Articles 5–10, “the default in these circumstances would be standard EU-UK arrangements”.244 However, Professor Phinnemore was concerned as to what would happen in practice:

“You then have a two-year period in which the provisions continue to apply, but there is no clarity about what happens at the end of that period. The default position is that Northern Ireland would simply be covered, in relation to the free movement of goods, by whatever arrangements are in place for the UK and the EU. Given where we are currently with UK ambitions for the future relationship and the UK’s refusal to contemplate signing up to a single market and customs arrangement with the EU, the consequence is that you are back to the prospect of checks and controls on the movement of goods on the island of Ireland … That simply moves us back to a position in which the Irish border question is centre stage. If there is one benefit of the Protocol, it is taking the Irish border question out of the debate at the moment.”245

299.Dr Sylvia de Mars said that the Joint Committee’s consideration of what to do if the Assembly votes against retention of the Protocol would be “the world’s most unpleasant discussions”:

“This goes back to the pre-Withdrawal Agreement situation when we said that we needed an alternative to replace the backstop. We did not get very close to finding an alternative to the backstop when that was the goal. This is saying that we have something that resolves the border issue, but Northern Ireland does not want it any more, so now please find us something that avoids all borders for ever. I wish the politicians the best of luck.”246

300.Given the sensitivity of the Protocol, we welcome the inclusion of a mechanism for members of the Northern Ireland Assembly to express democratic consent to the continued application of Articles 5–10 of the Protocol.

301.We note, however, that the democratic consent mechanism could exacerbate political division in the lead-up to each vote. It guarantees that the Assembly will be required repeatedly to debate the arrangements for trade within the UK and across the island of Ireland. The mechanism also creates the potential for significant economic instability and dislocation every four or eight years.

302.It is therefore incumbent upon the UK Government, the EU, the Irish Government, and the political parties in Northern Ireland to handle this process with care, taking full account of the political, economic and societal impact of the Protocol upon Northern Ireland. To that end, we welcome the provisions in the Government’s unilateral declaration to facilitate consultation with Northern Ireland businesses and civil society in the lead-up to each vote.

303.There has been an assumption that, given the uncertainties that would result from a vote against continuation of Articles 5-10, the Assembly is almost certain to vote for their continued operation. But much depends on the implementation and operation of the Protocol, underlining how important it is that the UK and the EU, through their discussions in the Joint Committee, ensure that the Protocol is implemented in a proportionate way that protects, rather than damages, the Northern Ireland economy.


234 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 18(5)

235 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 18(2)

236 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 18(5)

237 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 18(6)

238 Oral evidence taken on 21 October 2019 (Session 2019), Q 5 (Rt Hon. Stephen Barclay MP)

239 Oral evidence taken on 21 October 2019 (Session 2019), Q 6 (Rt Hon. Stephen Barclay MP)

243 Ibid.

244 HM Government, Explainer for the new Ireland/Northern Ireland Protocol and the Political Declaration on the future relationship (18 October 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840653/EXPLAINER_FOR_THE_NEW_IRELAND_NORTHERN_IRELAND_PROTOCOL_AND_THE_POLITICAL_DECLARATION_ON_THE_FUTURE_RELATIONSHIP.pdf [accessed 19 May 2020]




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