The Assembly cannot simply vote and “the Protocol goes”. By December 2024, the Assembly will vote on whether to continue with or withdraw consent for Articles 5–10 of the Protocol (but not the whole Protocol).
On the 17 May 2021 edition of BBC Radio Ulster’s The Nolan Show (starts 06:44), the presenter Stephen Nolan asked DUP MLA Christopher Stalford:
“What is the Poot’s statement of intent? Because I’m seeing that mixed messaging from the government as well. So that’s why the question, what is the Poots/DUP policy on this? Are you going to tolerate the government, trying to tweak it, trying to change it, or from day one are you not going to cooperate with it at all?”
As part of his response, Stalford stated (07:38):
“There are basically three ways in which I can see the protocol being abolished. One is that the prime minister has a change of heart on the issue… Two, the legal challenge that has been launched succeeds, and I sincerely hope that it will. But if it doesn’t, then the third way in the law is to have 45 Unionists elected to Stormont. and if 45 members of the Assembly vote to revoke the protocol, then the protocol goes. And that’s where coming into the next Assembly election, I think that it’s important that unionists are working together and cooperating in order to achieve that number.”
What is the Protocol?
During Brexit negotiations, the UK and the EU agreed to prioritise the Belfast/Good Friday Agreement. The focus was on keeping the land border between the Republic of Ireland (in the European Union) and Northern Ireland (in the UK) open and avoiding any new infrastructure along the border on the island of Ireland. However, after Brexit, a new arrangement was needed, to enable an all-island economy functioning within the EU Single Market.
According to Article 1(iii) of the Protocol, it sets out arrangements necessary to meet the shared objectives of the UK and the EU:
- to address the unique circumstances on the island of Ireland;
- to maintain the necessary conditions for continued North-South cooperation;
- to avoid a hard border [on the island of Ireland]; and
- to protect the 1998 Agreement in all its dimensions.
As a result of the Protocol, Northern Ireland has in effect remained in the EU’s single market for goods, while England, Scotland, and Wales are outside it. This allows goods to flow to and from Northern Ireland to Ireland and the rest of the EU as they did while the UK was a member of the EU, without customs checks, tariffs or new paperwork. The EU’s rules on customs and regulation of products continue to apply to goods arriving in Northern Ireland from outside the EU (including Great Britain).
What is the “consent mechanism”?
Under the terms of the Withdrawal Agreement (Article 18 of the Protocol), the Northern Ireland Assembly will be periodically asked to consent to the trading arrangements in Articles 5–10 of the Protocol for as long as they are in place. It will give MLAs an opportunity to vote on whether to remain in the arrangements or choose to exit from them. The first consent vote is due to take place by December 2024.
How does the “democratic consent mechanism” work in practice?
This is the tricky part. As summarised by the House of Lords, Article 18 of the Protocol states that it provides a mechanism 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 “consent mechanism” can currently be actioned by the Northern Ireland Assembly in one of two ways:
- Consent can be given by a simple majority vote in the Assembly, and the Protocol will continue to apply. Consent will need to be sought again within four years.
- If the vote passes with cross community consent, then consent will only need to be sought again after eight years. A vote is classified as having cross community consent if either:
- a majority of total MLAs and a majority of both nationalist and unionists in attendance, vote in favour (known as “parallel consent”); or
- 60% of MLAs, including 40% of unionists and 40% of nationalists in attendance, vote in favour (known as a “weighted majority”).
If the consent is not given — it does not receive majority support — the Protocol will cease to apply after two years. In this case, the UK-EU Joint Committee established under the Withdrawal Agreement to oversee the Protocol will make recommendations to the UK and the EU on alternatives to Articles 5–10 of the Protocol for avoiding a hard border and protecting the Belfast/Good Friday Agreement. It is then up to the UK and EU to negotiate new arrangements that replace Articles 5–10 but which still meet the objectives of the Protocol, including avoiding a hard border on the island of Ireland.
Can 45 MLAs vote to revoke the Protocol, and in doing so “it goes”?
No. The consent mechanism only applies to articles 5–10 of the Protocol. Even if a simple majority votes against giving consent in the December 2024 vote, the remainder of the Protocol still stands (including the non-diminution of rights and maintaining the conditions for North-South cooperation).
Although all MLAs designate as unionist, nationalist or other, the Speaker is an apolitical role and does not participate in Assembly votes. 45 MLAs would be needed for a majority if the maximum 89 MLAs participated in a vote.
While, at the time of publication, all Unionist parties oppose the Protocol, MLAs who designate as unionist are a minority within the NI Assembly. The next Assembly elections are due to be held in May 2022, with the first consent vote due by December 2024.
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