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Post-Brexit Governance NI

The Protocol/Windsor Framework and the 2024 Democratic Consent Vote

David Phinnemore and Lisa Claire Whitten [1]

 

August 2024

Download a copy of this Explainer here.

 

Introduction

An important feature of the Protocol on Ireland/Northern Ireland – now widely referred to as the Windsor Framework – is the ‘democratic consent mechanism’. It obliges the UK government to provide members of the Northern Ireland Assembly (MLAs) with the opportunity to grant their ‘democratic consent’ to the continued application of core provisions of the Protocol/Windsor Framework. These provisions – Articles 5-10 – concern arrangements for the free movement of goods on the island of Ireland and therefore the location and requirements of post-Brexit customs and regulatory checks on goods entering Northern Ireland (NI), including those from Great Britain (GB). A first ‘democratic consent’ vote is scheduled to take place in late 2024.

Assuming MLAs grant ‘democratic consent’, the current Protocol/Windsor Framework arrangements will continue to apply but MLAs will be provided with a further opportunity to vote on Articles 5-10 after four or eight years, depending on whether their vote in favour of consent is by a simple or cross-community majority. Where a democratic consent vote is held, and there is no majority in favour of consent, Articles 5-10 of the Protocol/Windsor Framework cease to apply after two years.

The existence of the democratic consent mechanism means that there is an element of uncertainty about the medium- to long-term future of the post-Brexit arrangements for Northern Ireland. The outcome of the 2024 vote – as well as any democratic consent votes thereafter – will therefore be of vital importance for the UK as a whole, for Ireland, and for UK-Ireland and UK-EU relations.

The existence of the democratic consent mechanism raises a range of questions. Why is such a mechanism included in the Protocol/Windsor Framework? What does the mechanism involve? How will MLAs vote in 2024? What happens if MLAs do consent for Articles 5-10 to continue to apply? And what if they do not?

This explainer considers these and other questions regarding the first use of the democratic consent mechanism in 2024.[2] It provides background on the mechanism’s presence in the Protocol/Windsor Framework and considers the legal and political texts that underpin it. It then reviews inf more detail the participants in and the substance of a democratic consent vote before setting out the process for the 2024 democratic consent vote and outlining the possible outcomes for the vote: namely consent and no consent. The final section considers the anticipated outcome of the 2024 vote given the current composition of the NI Assembly. Concluding comments are followed by several annexes containing key documents.

1. Why a Democratic Consent Mechanism?

The Protocol/Windsor Framework places Northern Ireland in a unique position in the UK-EU relationship. Although formally ‘part of the customs territory of the United Kingdom’ (Article 4) and occupying an ‘integral place in the [UK] internal market’ (Article 6(2)), a range of EU acts continue to apply in Northern Ireland, including on customs and the free movement of goods. Moreover, the Protocol/Windsor Framework requires that amendments and replacements to those EU acts apply automatically in Northern Ireland (Article 13(3)). Also applicable in Northern Ireland are specified EU acts relating to VAT and excise (Article 8), wholesale electricity markets (Article 9) and state aid (Article 10). For disputes concerning the application of applicable EU law relating to the movement of goods, the United Kingdom in respect of Northern Ireland falls under the jurisdiction of the Court of Justice of the EU (CJEU) (Article 12).

The purpose of these – and other – arrangements in the Protocol/Windsor Framework is to deliver on a set of shared UK and EU objectives agreed as part of the UK’s withdrawal from the EU. The objectives are listed in Article 1(3) of the Protocol/Windsor Framework which forms an integral part of the UK-EU Withdrawal Agreement:

‘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 and to protect the 1998 [Belfast/Good Friday] Agreement in all its dimensions’

However, the differentiated treatment of Northern Ireland within the post-Brexit UK-EU relationship has always been contested, especially by unionists fearful of its impact on Northern Ireland’s constitutional status as part of the UK and on Northern Ireland’s position in the UK internal market. Although others were unconvinced, critics also argued that the imposition of the original Protocol arrangements in the absence of a consent vote ran counter to the spirit, if not necessarily the letter, of the 1998 Agreement, a central element of which is the principle of consent. This principle is reflected in the requirement for the people of Northern Ireland to give their consent for any change in the constitutional status of Northern Ireland – i.e. Northern Ireland leaving the United Kingdom for a united Ireland – and the provisions regarding a ‘petition of concern’ according to which certain legislation can only be adopted by the NI Assembly where there is ‘cross-community’ support among the MLAs.

The originally proposed ‘backstop’ version of the Protocol, bitterly opposed by unionists during 2018-19 for its differentiated treatment of Northern Ireland, contained no democratic consent mechanism. Such a mechanism was proposed, however, by the UK Government under Boris Johnson when insisting on revised terms for the UK’s withdrawal from the EU. The hope was that subjecting the differentiated treatment of Northern Ireland to consent votes on a regular basis would secure unionist support for a revised Protocol. It did not, but the revised Protocol with the democratic consent mechanism did secure the support of a majority of MPs at Westminster when they approved the UK-EU Withdrawal Agreement in December 2019.[3] The Withdrawal Agreement entered into force on 31 January 2020; the revised Protocol entered into force on 1 January 2021 when the UK’s post-withdrawal ‘transition period’ ended.

2. Providing for Democratic Consent

The arrangements for the democratic consent vote are set out in six documents:

    • Protocol on Ireland/Northern Ireland (2020)
    • 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 (2019)
    • The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 (SI 2020/1500)
    • Northern Ireland Act (1998)
    • Safeguarding the Union (2024)
    • The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 (SI 2024/164)

In the Protocol on Ireland/Northern Ireland (2020), Article 18 is dedicated to ‘Democratic Consent’ (see Annex 1 for full text). It states that ‘the United Kingdom shall provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5 to 10’ with a first ‘opportunity’ being provided before the end of the fourth year of the Protocol’s application, i.e. before the end of 2024. In providing such an opportunity, the United Kingdom ‘shall seek democratic consent… in a manner consistent with the 1998 Agreement’ (emphasis added).

Article 18 then sets out what happens if consent is not provided. This is discussed more below (see section 7), but essentially Articles 5-10 will cease to apply after two years. In the meantime, the EU-UK Joint Committee which oversees implementation of the Protocol/Windsor Framework will make recommendations to the UK and the EU on ‘necessary measures’. If consent is provided, however, Articles 5-10 continue to apply, although Article 18 states that a further opportunity for democratic consent will be provided after four years where there is a simple majority of MLAs providing consent or eight years where there is ‘cross-community support’ (see section 6).

Article 18 also refers to a second document. This is the 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 that was issued on 17 October 2019 (see Annex 2). Although only a political statement, Article 18 states that any ‘decision expressing democratic consent shall be reached strictly in accordance with the unilateral declaration’. The Declaration sets out how the UK government will provide the opportunity for democratic consent and what the process will entail. It also contains a ‘commitment to legislate for a democratic consent process’ (see section 3).

The third document follows from this commitment and is Statutory Instrument 2020/1500.[4] Entitled The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 (SI 2020/1500), it amends a fourth document, the Northern Ireland Act 1998, by inserting a new section 56A and new Schedule 6A. These establish the legal basis for delivering ‘the opportunity for democratic consent in Northern Ireland’ provided for in Article 18 and the accompanying UK government Declaration. It is accompanied by an explanatory memorandum.

The fifth document is the Safeguarding the Union Command Paper published by the UK government in January 2024 (see Annex 4). It contains the ‘deal’ on the basis of which the Democratic Unionist Party (DUP) agreed to return to the NI Assembly and to the formation of a new NI Executive. On the consent vote, it commits the UK government to introduce ‘stronger statutory requirements’ for the operation of the independent review following the democratic consent vote. The aim is to make the operation ‘robust, independent and timely’.

Finally, there is Statutory Instrument 2024/164 containing The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024. It amends Schedule 6A of the Northern Ireland Act 1998 to give legal force to UK government commitments in Safeguarding the Union. It is accompanied by an explanatory memorandum.

Together these documents set out how and when the democratic consent mechanism will operate, who votes and on what. They also set out post-vote processes on the outcome of each vote.

3. Who votes… on what… and when?

Democratic consent as provided for in Article 18 of the Protocol/Windsor Framework is not derived directly from the people of Northern Ireland but indirectly through their MLAs in the NI Assembly. For as long as consent is granted, MLAs will potentially be asked to hold a democratic consent vote every four years.[5] 

Importantly the democratic consent mechanism does not apply to the Protocol/Windsor Framework as a whole. In voting against consent, MLAs would not therefore be voting for ‘scrapping the Protocol’ as has on occasion been mistakenly assumed.[6] Rather, the democratic consent vote covers specifically Articles 5-10 and so those provisions covering the regulatory alignment that permits for the free movement of goods between Northern Ireland and the EU, thereby avoiding physical infrastructure or related formalities, checks and controls on goods moving across the land border on the island of Ireland. Also covered are the arrangements agreed in the Windsor Framework to ease the GB-NI movement of goods as well as the regulatory alignment allowing for the continued free flow of electricity supply on the island of Ireland (see Figure 1).

The democratic consent mechanism does not therefore apply to the objectives (Article 1) of the Protocol/Windsor Framework or its provisions on, for example, the rights of individuals (Article 2), the Common Travel Area (Article 3), continued North-South cooperation (beyond the movement of goods and the Single Electricity Market) (Article 11) or implementation and governance arrangements (Articles 12-15).

Democratic Consent Coverage

Figure 1: Democratic Consent and Article 5-10

Of note too is that Articles 5-10 come as a package. MLAs do not vote on whether they wish to see individual provisions retained. For example, MLAs cannot choose to give democratic consent to the retention of Article 9 on the Single Electricity Market while withholding consent for the continued application of articles on the movement of goods.

The first democratic consent vote is scheduled for 2024. And, assuming consent is granted, the next opportunity to hold a democratic consent vote will be after either four or eight years (see Section 6). Of note is that democratic consent votes are not mandatory under the Protocol. The reference in Article 18 is to the UK government providing an ‘opportunity’ for a democratic consent vote. Whether a vote will be held depends on decisions taken by the NI Executive and MLAs; it is indeed technically possible that MLAs may decide not to hold a vote (see Section 5).

4. What does consent look like?

Democratic consent can come in two forms: consent by a simple majority or consent with a cross-community majority. The form of majority achieved is important since it determines when the democratic consent mechanism can next be used. The requirements of each majority are set out in Article 18 of the Protocol/Windsor Framework and in Schedule 6A of the Northern Ireland Act 1998.

The first type of majority – a ‘simple’ majority – requires 50%+1 of the MLAs present and voting to support a ‘motion for consent’ (see Figure 2). To note here is that the ‘Presiding Officer’ (i.e. Speaker or Deputy Speaker) does not have a vote in Assembly debates. Therefore, if 86 of the 89 MLAs eligible to vote took part in a democratic consent vote, a simple majority would be 44 MLAs (43+1). If there is an even number of MLAs present and the vote splits 50-50 then the motion is not carried and so there would be no consent. If a simple majority is secured, the next democratic consent opportunity will be after four years. Under the Standing Orders of the NI Assembly, 10 MLAs including the Speaker must be present for the Assembly to be quorate.

The second type of majority – a ‘cross-community’ majority – can be secured through:

(a) a simple majority (50%+1) of MLAs present and voting where this includes a majority of designated unionists and a majority of designated nationalists, or

(b) a 60% majority of MLAs present and voting where this includes 40% of designated ‘nationalists’ and 40% of designated ‘unionists’

The thresholds are the same as those that apply when MLAs vote on legislative matters requiring ‘cross-community support’, for example following a ‘petition of concern’. The exact number of MLAs required to meet the majorities required for cross-community consent therefore depends on how many MLAs have designated as ‘nationalist’ and ‘unionist’. In its current [2022-27] composition, the NI Assembly comprises 35 MLAs who have designated as ‘nationalist’ and 37 MLAs who have designated as ‘unionist’. The remaining 18 MLAs are formally considered as ‘other’.

NIA Designations

Figure 2: The NI Assembly and Community Designations (August 2024)

In any vote requiring a cross-community majority, the votes of MLAs designating as ‘other’ contribute to the 50%+1 and the 60% majority requirements but play no role in the remainder of the calculation. If a cross-community majority is secured, the next democratic consent opportunity will be after eight years.[7]

    5. From ‘opportunity for democratic consent’ to a democratic consent vote

    Article 18 of the Protocol/Windsor Framework states only that the UK ‘provide the opportunity for democratic consent’. Technically, MLAs could forego a vote. However, it is widely expected that the first opportunity for a democratic consent vote in 2024 will see a vote being held. This is the consequence of two things: first, how the democratic consent vote has been presented as a means for the NI Assembly to exercise democratic oversight of the Protocol/Windsor Framework; and second, how UK legislation for the democratic consent mechanism has been written to allow ultimately a single MLA to table the relevant motion that would require a vote to be held.

    Prior to any vote, the UK Government Declaration envisages a ‘thorough process of public consultation’ (see Annex 2). The commitment has never been made legally binding, however. Nevertheless, a consultation is expected to take place prior to the 2024 vote and is the responsibility of the NI Executive. It is to involve ‘businesses, civil society groups, representative organisations (including of the agricultural community) and trade unions’. It is also expected that the North South Ministerial Council and British-Irish Intergovernmental Conference ‘should’ be involved. Should the NI Executive decide to hold a consultation, for any consultation to take place before the start of the Democratic Consent Process, a launch date in September 2024 would be anticipated.

    On the timing of a democratic consent vote, this is set out in SI 2020/1500 through the introduction of Schedule 6A to the Northern Ireland Act 1998 (see section 2). It states that the ‘Default Democratic Consent Process’ is to be initiated by the Secretary of State for Northern Ireland two months before the end of 2024, so on 1 November.[8]

    Once the process has been started, it falls in the first instance to the First Minister and deputy First Minister in the NI Executive ‘acting jointly’ to decide whether to table such a ‘democratic consent motion’ in the NI Assembly. They must act before 30 November. They need not draft any text as the required wording of the ‘resolution’ for a motion is set out in SI 2020/2500:

    ‘That Articles 5 to 10 of the Protocol on Ireland/Northern Ireland to the EU withdrawal agreement should continue to apply during the new continuation period (within the meaning of Schedule 6A to the Northern Ireland Act 1998)’

    If the First Minister and deputy First Minister do table a motion for a consent resolution, it must be accompanied ‘with such explanatory materials as it is reasonable to provide in order to assist [MLAs] when deciding the question’. It is for the First Minister and deputy First Minister to determine what form ‘such explanatory materials’ shall take.

    If the First Minister and deputy First Minister do not table a motion, then ‘any’ MLA may do so. They have until ‘the start of the final 25 days of the current period’. The ‘current period’ is the four-year period since the original Protocol entered into force on 1 January 2021. The deadline therefore for an MLA to table a motion is 6 December 2024. It then falls to the Secretary of State to take ‘reasonable steps’ to provide MLAs with ‘such explanatory materials as it is reasonable to provide in order to assist them when deciding the question’.

    If no motion is forthcoming from an MLA, the democratic consent process ends. And if a motion is tabled and then withdrawn, it is treated as not having been tabled. In the absence of a motion being tabled, Articles 5-10 continue to apply. Consent is assumed.

    Where a ‘motion for a consent resolution’ is tabled, the vote is organized in line with normal NI Assembly procedures. However, the vote does need to take place before the start of ‘the final 15 days of the current period’ (i.e. 17 December). Also, the motion can only be adopted without amendment, and there can only be one motion on which MLAs vote. And Schedule 6A is explicit: ‘Section 42 does not apply in relation to a motion for a consent resolution’. A petition of concern cannot therefore be applied.

    If before the start of ‘the final 15 days of the current period’ MLAs have not held their vote on a tabled motion, there will be a ‘required sitting day’ when MLAs will hold a vote. On such a day, the consent resolution will be the first business of the day. The session will start at noon and MLAs will vote no later than six hours after the motion has been moved and the Assembly may not be adjourned until the result of the vote has been declared. If the motion is not put as required, a further ‘required sitting day’ will be held.[9]

    Once the MLAs have voted and the outcome has been declared, the Presiding Officer notifies the Secretary of State of the outcome. This must happen ‘before the start of the final 5 days of the current period’ (i.e. 26 December). The Secretary of State then communicates the outcome to the European Commission on or before 31 December.

    The schedule, with dates for the expected 2024 vote, is set out in Figure 3.

    Democratic Consent Timeline

    Figure 3: The Democratic Consent Process in 2024

    6. What happens if there is a majority for democratic consent?

    If MLAs vote in favour of democratic consent the provisions of Article 5-10 of the Protocol/Windsor Framework will continue apply and the UK ‘in respect of Northern Ireland’ will remain aligned with applicable EU law.

    MLAs will, however, be given a further opportunity to vote depending on the nature of the majority. If the vote in favour of consent is a simple majority, the next opportunity for a vote is after four years. If consent is granted by a ‘cross-community’ majority, the next opportunity is after eight years (see Figure 4).[10] If no motion is tabled and no vote is held, cross-community support for the continued application of Articles 5-10 is deemed to exist. The next opportunity for a democratic consent vote would therefore be after eight years.

    Where consent is by a simple majority, the UK government will commission an independent review into the ‘functioning’ of the Protocol/Windsor Framework and ‘the implications of any decision to continue or terminate alignment on social, economic and political life in Northern Ireland. The review will involve ‘close consultation’ with political parties in Northern Ireland, businesses, civil society groups, representative organisations (including of the agricultural sector) and trade unions. It is charged with making recommendations ‘including with regard to any new arrangements it believes could command cross-community support’.

    Democratic Consent - 2024 Onwards

    Figure 4: The 2024 Democratic Consent Vote and What Next

    Originally, the review was to be completed within two years of the democratic consent vote, so before the end of 2026. With the Safeguarding the Union deal in 2024, the UK government agreed to bring forward the review. Through SI 2024/164 it is now therefore legally bound to appoint the chairperson of the independent review within one month of being formally notified of the outcome of the democratic consent vote, so before the end of January 2025. The review is to be completed within a further six months, so before the end of July 2025.

    A further consequence of the Safeguarding the Union deal is that the scope of the review could be wider than originally envisaged. It ‘may’ now include ‘consideration of any effect of the Windsor Framework’ on the ‘constitutional status of Northern Ireland, and… the operation of the single market in goods and services between Northern Ireland and the rest of the United Kingdom’.

    Once the report has been received by the Secretary of State, the UK government must lay a copy of the report before Parliament and ‘transmit’ a copy to the NI Assembly as well as raise ‘any issues raised or recommendations made’ in the EU-UK Joint Committee. Of note here is that the review is an internal UK process, not a joint exercise involving the EU and so there is no obligation on the part of the EU-UK Joint Committee even to consider the report and its recommendations let alone act on them.

    It is expected, however, that time will be made available in Parliament for the report to be debated and that this will be preceded by a debate on the report in the NI Assembly. Within six months, so before the end of January 2026, the Secretary of State must publish a written response to any recommendations from the report as well as ‘information’ about responses to any representations about the report from Parliament or from the NI Assembly.

    7. What happens if MLAs do not support a democratic consent motion?

    If MLAs do not vote in favour of a democratic consent motion, Article 18(4) of the Protocol/Windsor Framework states that the provisions of Article 5-10 ‘shall cease to apply after 2 years’, i.e. on 31 December 2026.[11] The same fate would befall ‘other provisions… to the extent that [they] depend on [Articles 5-10] for their application’.

    The effect would be that from 1 January 2027 EU acts applicable in Northern Ireland under the Protocol/Windsor Framework relating to the movement of goods, state aid, VAT and excise, and the Single Electricity Market would cease to apply; dynamic regulatory alignment in these areas would also cease, as would the jurisdiction of the Court of Justice of the EU. This would take Northern Ireland out of its current position of being de facto part of the EU customs territory and its internal market for goods. Consequently, there would no longer be a legal basis in the Protocol/Windsor Framework for the free movement of goods across the Irish border. The single electricity market on the island of Ireland would also be disrupted.

    A further effect would be that legal obligations in the Protocol/Windsor Framework to operate post-Brexit formalities, checks, and controls on the movements of goods from GB to Northern Ireland would also cease to apply. The conditions for the movement of goods between Great Britain and Northern Ireland would thus in principle be restored to what they were before the Protocol entered into force on 1 January 2021.[12]

    While many opponents of the Protocol/Windsor Framework would most likely welcome such an outcome, a majority of MLAs rejecting a democratic consent motion would not see arrangements for the movement of goods in and out of Northern Ireland simply reverting to what they were pre-Brexit. With Articles 5-10 ceasing to apply from 1 January 2027, as arrangements currently stand, the free movement of goods across the Irish border would cease.

    This is because for matters covered by Articles 5-10 the terms of the UK-EU Trade and Cooperation Agreement (2020) would apply. The essential consequence of this would be to subject the movement of goods from Northern Ireland to and from the EU – and so across the land border on the island of Ireland – to the same regime as goods currently moving between the rest of the UK and the EU. This would necessitate capacity for physical checks and controls at the border. This is the default situation.

    What exactly the situation would be on 1 January 2027 would be for the UK and the EU to determine. Just as Article 18(4) provides for Articles 5-10 no longer to apply, so too it envisages the UK and the EU receiving recommendations from the EU-UK Joint Committee on what ‘necessary measures’ might be taken. The fact that these would be recommendations of the EU-UK Joint Committee means that they would be jointly agreed by the UK and the EU. It can be reasonably assumed that the recommendations would then be taken forward and a formal agreement concluded between the UK and the EU governing their adoption and implementation.[13]

    Recommendations from the EU-UK Joint Committee would be ones ‘taking into account the obligations of the parties to the 1998 Agreement’ and ones adopted having potentially sought the views of ‘institutions created by the 1998 Agreement’. The list of institutions that could be consulted include: the NI Executive, the NI Assembly, the North-South Ministerial Council, and the British-Irish Council.[14]

    Given the continued application of Article 1, the ‘necessary measures’ would presumably have the same objectives as the Protocol/Windsor Framework, i.e. ‘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 and to protect the 1998 Agreements in all its dimensions’. Commitments made in the preamble would also continue to apply and so the UK’s ‘guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls’ and the shared UK and EU position of ‘no customs and regulatory checks or controls and related physical infrastructure at the border between Ireland and Northern Ireland’.[15]

    This all begs the question as to what those ‘necessary measures’ might be. It could be that the UK and EU agree to the re-application of selected provisions, e.g. on maintaining the single electricity market. They could go further. Indeed, it has been suggested that the UK government would not rule out simply agreeing to minor alterations to and essentially retaining Articles 5-10.

    Whether the UK and the EU could agree new replacement arrangements that deliver on the obligations of the parties to the 1998 Agreement very much depends on the extent to which they are willing to agree measures that manage formalities, checks and controls on the movement of goods across the land border any differently to goods moving across the sea border between the rest of the UK and the EU. And here not only will the EU’s stance on protecting the integrity of its internal market be crucially important, but so too will the position of the UK government to the question of regulatory alignment with the EU as far as the movement of goods is concerned.

    Essentially, if in its pursuit of improved trade relations with the EU and preventing ‘unnecessary border checks’ the current Labour government secures an enhanced relationship with the EU that involves the type of regulatory alignment provided for in the Protocol/Windsor Framework then this could reduce the need for wholly separate NI-specific arrangements to reduce frictions on the movement of goods across the land border if Articles 5-10 of the Protocol/Windsor Framework were no longer in force. However, is unclear whether the UK government would agree to such regulatory alignment and, if it did, an agreement with the EU could be reached with the EU and be in force by 1 January 2027.

    Either way, if MLAs reject the continued application of Articles 5-10, the question of the post-Brexit nature of the land border in effect moves back to 2017-19 and the search for agreement on how to avoid a hard border on the island of Ireland with the UK having left the EU customs union and single market. Negotiators back then could find no viable alternative to the Protocol’s arrangements and no viable alternative has since emerged. The UK and the EU would face a major challenge: how to square existing commitments to avoid a hard border on the island of Ireland with rejection of the Protocol/Windsor Framework arrangements that have allowed them to meet those commitments.

    8. What is the anticipated outcome of a 2024 Democratic Consent vote?

    Given its current composition and the positions that political parties have taken on the Protocol/Windsor Framework it is more likely than not that there will be a simple majority of MLAs in favour of the continued application of Articles 5-10 in a 2024 democratic consent vote.

    Based on manifestos for the 2022 NI Assembly elections and on public statements since by the political parties, particularly following the adoption of the Windsor Framework (2023) and Safeguarding the Union (2024), 53 of the 90 MLAs currently appear likely to vote in favour of continued application of Articles 5 to 10 of the Protocol/Windsor Framework in 2024. These are MLAs that either designate as ‘nationalist’ – i.e. those from Sinn Féin and the Social Democratic and Labour Party (SDLP) – or do not designate and are considered as ‘other’ – i.e. those from Alliance and People before Profit (PBP) (see Figure 5).

    Democratic Consent - Anticipated Voting

    Figure 5: Anticipated Positions in the 2024 Democratic Consent Vote

    The remaining MLAs all designate as ‘unionist’ and most seem likely to vote against democratic consent given their long-standing opposition to and critical positions on the Protocol/Windsor Framework. This is the case for MLAs from the DUP and the Traditional Unionist Voice (TUV) and one independent. Whether they will be joined by MLAs from the Ulster Unionist Party (UUP) remains to be seen given the more pragmatic approach the UUP has adopted in its nevertheless critical approach to the Protocol/Windsor Framework.

    The majority for democratic consent would therefore only be a simple majority, and not one based on cross-community consent.

    A simple majority for democratic consent would be in line with public opinion. Polling since the original Protocol entered into force initially indicated that voters were almost evenly split on whether they wished MLAs to vote in favour of democratic consent. From October 2021 until February 2023, a narrow majority were in favour of MLAs granting democratic consent to the continued application of Articles 5-10 (See Figure 6). Two-fifths were opposed. That ten-percentage point gap almost trebled with the announcement of the Windsor Framework in 2023 as the majority in favour of democratic consent increased to 61% and opposition dropped to one third of voters. Since then, support for democratic consent has fallen slightly, but the majority of voters remain supportive and the proportion of voters opposed remains around one-third.

     

    TTT - Democratic Consent

    Figure 6: Views of NI Voters on the 2024 Democratic Consent Vote

     

    Concluding remarks

    The provisions on democratic consent in the Protocol/Windsor Framework are unique. Building on the principle of consent that underpins the 1998 Belfast (Good Friday) Agreement, they introduce a mechanism whereby MLAs can determine on a regular basis whether core provisions of an international legal text – the Protocol/Windsor Framework – should continue to apply. The democratic consent mechanism therefore breaks new ground in the UK constitutional context by providing MLAs with a vote on excepted matters, namely, relations with the EU.

    The democratic consent mechanism is also novel from an EU law perspective in that it enables a sub-state legislature in a non-member state to take a decision that has legal implications for the geographical extent of the EU internal market for goods and the application of the EU Customs Code.

    The democratic consent mechanism clearly draws on the spirit of the principle of consent contained in the 1998 Agreement. By providing for four-year periods between votes passed by ‘simple majority’ and eight-year periods between votes passed by ‘cross-community majority’, the mechanism places a greater premium on ‘cross-community’ consent but importantly does not require it to be achieved for the continued application of Article 5-10 of the Protocol/Windsor Framework.

    The inclusion of the democratic consent mechanism in the Protocol/Windsor Framework therefore provides MLAs in Northern Ireland from 2024 with an important role in the future of the arrangements that the UK and the EU agreed in 2019 for post-Brexit Northern Ireland, notably to avoid a hard border. That role is limited, however, to determining whether Articles 5-10 – and so the arrangements that avoid a hard border and maintain the single electricity market on the island of Ireland – should continue to apply or not. Article 18 is not a means to remove the Protocol/Windsor Framework in its entirety.

    Provisions relating to the rights of individuals, the Common Travel Area, and north-south cooperation will continue to apply irrespective of the outcome of a democratic consent vote. Article 1 on the objectives of the UK and the EU in agreeing the content of Protocol/Windsor Framework will also continue to apply, as will provisions regarding governance arrangements for the operation of the Protocol. The removal of Articles 5-10 would, however, strip the Protocol/Windsor Framework of much of its regulatory content and, to a significant degree, the more contested elements of its governance arrangements (e.g. dynamic regulatory alignment, jurisdiction of the CJEU). With this, the differentiated treatment of Northern Ireland within the post-Brexit UK-EU relationship would be dramatically reduced.

    However, withholding consent is no cure all to unionist concerns about the impact of Protocol/Windsor Framework. Disapplication of Articles 5-10 would simply force the UK and the EU back to addressing one of the most significant challenges of Brexit: how to avoid a hard land border on the island of Ireland and the economic, political and social consequences that would entail. Moreover, disapplication would herald a new era of uncertainty for Northern Ireland, for UK-EU relations and for relations between the UK and Ireland.

     

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