Consent, cross-community support and the Ireland/Northern Ireland Protocol

John Locke once wrote, ‘we should have a great many fewer disputes in the world if words were taken for what they are, signs of our ideas only, and not for things themselves’. In Northern Ireland, this advice is particularly pertinent when we talk about mechanisms for expressing consent. Consent, to most people, means agreement or permission, but in Northern Ireland when we talk about consent in a political context, we are talking about a range of specific mechanisms designed to evidence consent in a specific set of circumstances.

Since the introduction of the Ireland/Northern Ireland Protocol (the Protocol) there have been discussions around the importance of consent. At the same time, there are a number of local definitions of consent which are easy to conflate. For example, there is the concept of consent under the Belfast/Good Friday Agreement, (the 1998 Agreement), cross-community support, consent to UK legislation, and then there is the concept of consent under the Protocol. These processes are very different, but share a similar aim in providing an opportunity to express or withhold consent to significant change. This article looks at the ways in which Northern Ireland is asked to consent to political, legal and constitutional change, and how consent is expressed in those contexts.

Consent – the 1998 Agreement and Northern Ireland Act

The ‘consent’ principle referred to when discussing the 1998 Agreement can be found in Section 1 of the Northern Ireland Act 1998.

Simply put, this section (together with Schedule 1 of the Act) recognises that the status of Northern Ireland as part of the UK, or as part of a united Ireland, shall be based on consent as expressed in a (border) poll.

This provision has been considered by the Supreme Court in relation to the UK’s exit from the EU. In the Supreme Court case Miller (No.1) the applicants sought to argue that a change in Northern Ireland’s status could not be effected without consent, and that leaving the EU had caused such a change. In that case the Supreme Court held that Section 1 of the 1998 Act only applies to a border poll, excluding other changes in the constitutional status of Northern Ireland. This approach was followed in the judicial review case Allister and Ors, which challenged the Ireland/Northern Ireland Protocol on the same basis.

It is useful to review the operation of the consent mechanism. In terms of when such a poll might be called, the 1998 Act specifies that the Secretary of State will call a poll when it appears to him or her likely that a majority of those voting would vote in favour of a united Ireland. There are no published criteria for this decision, or a published process for next steps.

The Agreement states that consent for a united Ireland must be ‘freely and concurrently given’ in both Northern Ireland and the Republic of Ireland. It is assumed that this would be via referendum, but some commentators have identified complexities around holding such a vote at the same time in two different jurisdictions. Assuming that procedural and practical considerations are dealt with, and the electorate votes in favour of a united Ireland, the UK and Irish governments would negotiate on how this outcome can be implemented.

Consent Mechanism – the Ireland/Northern Ireland Protocol

If the key features of the 1998 Act’s consent mechanism are uncertain timing, direct democracy, undefined implementation and clearly defined long-term consequences, the key features of the Protocol’s consent mechanism are precisely the opposite. The timing of the vote is scheduled in the Protocol, with the first vote due to happen around the end of 2024, and, rather than directly to the public by way of referendum, the question is put to the Assembly. In the event that the Assembly votes to refuse consent, parts of the Protocol would cease to apply to Northern Ireland after two years, but it is not clear what would replace it.

The consent mechanism in the Protocol specifically applies to the continued operation of Articles 5-10, and the procedure was included in the Northern Ireland Act 1998, via the Protocol in Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020. These Regulations created Schedule 6A to the 1998 Act, and lay out the terms of the consent resolution to be taken by the Northern Ireland Assembly.

This mechanism works very differently from that which applies in the context of a border poll. First, the vote is a motion of the Assembly, which means that only MLAs will vote on it. Importantly, it will not be subject to a petition of concern.

Although there is no requirement to get cross-community support, there are consequences if the motion is passed only by simple majority. If consent is granted on a cross-community basis, a further vote on the continued application of the Protocol will not be required for another eight years. If the motion is passed on a simple majority, the arrangements will be voted on again in four years. If cross-community support is not achieved, Part 6 of the new Schedule 6a also requires the Secretary of State to commission an independent review into the functioning of the Protocol.

If the Assembly decides to withhold consent to the continued application of the Protocol, Articles 5-10 (the parts of the Protocol that deal with customs, state aid, VAT, technical regulations and electricity) will cease to apply after two years.

Consent vs Consensus – cross-community support for the Protocol

In the Allister judicial review hearing (above) the judge stated that, “the fact that consent can be provided by a simple majority of the Northern Ireland Assembly as opposed to a vote with cross-community support is at the heart of the challenge to the Regulations and has been a particularly controversial aspect of the Protocol.”

A requirement to obtain cross-community support does not automatically apply to all issues which come before the Assembly. Most are only subject to such a vote when a petition of concern is raised. The intention of the 1998 agreement[1] was that key decisions would have cross-community support, sometimes specified in advance (for example, electing the First and Deputy First Ministers, or budget allocations) or identified by MLAs, via the petition of concern process. However, this applies to matters which are within the devolved competence of the Assembly. This type of consent is different to consent in a border poll, and different again to the consent mechanism contained in the Protocol.

The petition of concern procedure focuses on consensus, creating the ‘chance for broad-based legitimacy among both unionists and nationalists’. Ultimately, it allows individual Members of the Assembly to ensure that a more stringent requirement for consensus be set, rather than a simple majority. This then gives effect to the principle of consent as contained in Strand 1 paragraph 5(d)  of the 1998 Agreement, which lists the cross-community vote as one of the safeguards which allow ‘all sections of the community (to) participate and work together successfully in the operation of these institutions and that all sections of the community are protected’.

This process can be easily conflated with the consent principle but there are some key distinctions. As above, the petition of concern, as expressed in the 1998 Agreement, only applies to matters on which the Assembly can make a decision, is restricted to MLAs, and comes in the form of a veto. The consent principle, on the other hand, relates to an excepted matter, applies to the entire electorate, and is most likely to be expressed via referendum.

Legislative consent motions

Another way in which the Assembly gives consent to legislation applying in Northern Ireland is via a legislative consent motion. These motions allow the Assembly, and other devolved administrations, to consent to Westminster legislation dealing with areas of devolved competence (‘transferred‘ matters). There are two important differences between legislative consent motions and the democratic consent mechanism in the Protocol. These differences are connected – the first is the difference in terms of Assembly competence, and the second is the consequences of granting or withholding consent.

In the case of legislative consent motions, the subject matter of legislation falls within the competence of the Assembly – the scope of authority granted in the devolution statutes. A legislative consent motion is requested by Westminster as part of the Sewel Convention, which states that the UK Government will not ordinarily legislate in areas of devolved competence without the consent of the devolved legislatures. ‘Ordinarily’ is a term that has never been fully defined. During the UK’s exit from the EU many pieces of legislation were passed which affected areas of devolved competence and, although consent was withheld, the legislation was passed over the objections of the devolved governments. In other circumstances, the UK Government has not proceeded with the legislation, but there are no clear rules which indicate how a government will respond to any specific refusal of consent.

By comparison, although the Protocol deals with a variety of devolved and non-devolved areas, its existence and content as (part of) an international treaty is not a devolved issue. The Protocol seeks to respect and uphold the 1998 Agreement, but it is not a part of it and does not rely on its mechanisms unless and to the extent that they are specifically incorporated into the Protocol itself. Article 18, which contains the democratic consent mechanism, does borrow the concept of cross-community support, but deploys it in a slightly different way. The outcome of the vote is different too – if consent to the Protocol were to be refused, then the response to that is clearly laid out in the Protocol itself – Articles 5-10 would cease to apply, and the Joint Committee would make recommendations on the way forward.

Consent

Consent is a fundamental element of democracy, but it can be demonstrated in a variety of ways. In Northern Ireland alone, many different processes have different definitions of what constitutes ‘valid’ consent. Each process has certain advantages – simplicity; consensus; flexibility; certainty; and each has drawbacks – vague; remote; expensive; complex. This demonstrates the importance of understanding that consent in politics is not a fixed concept, but a way of expressing the requirement for democratic legitimacy in a variety of political and constitutional contexts.

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[1] Strand 1 paragraph 5(d) of the Good Friday/Belfast Agreement