Democratic Consent Mechanism

A Democratic Consent mechanism is provided in Article 18 of the Protocol. It addresses the continued application in Northern Ireland of the Protocol provisions relating to customs and the movement of goods, VAT (Value Added Tax) and excise, the Single Electricity Market and State Aid (Articles 5-10).

The UK Government set out proposals on the workings of the Democratic Consent mechanism in a Unilateral Declaration on Consent.

Draft Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 were laid before both Houses of the UK Parliament on 2 November 2020. It was a draft affirmative instrument, meaning that both Houses had to give their approval before it could come into force.

The Draft Regulations were approved in the House of Commons on 30 November and in the House of Lords on 3 December.

The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 now implement in domestic law the mechanism for obtaining democratic consent in Northern Ireland to the continued application of Articles 5 to 10 of the Protocol.

The regulations insert a new Schedule 6A into the Northern Ireland Act 1998 and contain two distinct parts:

• • Provision for the operation of the consent mechanism where there is a functioning Northern Ireland Executive (Part 3 of Schedule 6A); and
  • Provision for the operation of the consent mechanism where there is not a functioning Northern Ireland Executive (Part 4 of Schedule 6A).^[1]

There is also an important distinction between whether the motion is passed by majority or by cross-community support – if it is passed by a simple majority, then the arrangements will apply for four years, after which consent must be sought again.

If the motion to continue is passed with cross-community support, then no further vote on the matter is required for eight years.

The Regulations also make provision for circumstances where:

• • The First and deputy First Minister do not move the motion for the consent mechanism; and
  • The Assembly does not make a decision on the motion.

Where Assembly Standing Orders clash with the provisions of Schedule 6A, then the Schedule takes precedence.

Figure 1 below provides an outline of the process that will be followed in circumstances where there is a First Minister and deputy First Minister in post – the default democratic consent process. Please note that the information contained in Figure 1 is not a substitute for reading the Regulations.

In its Unilateral Declaration on Consent, the UK Government committed to providing an alternative method of seeking the consent of the Assembly if a functioning Executive was not in place. This involves the Secretary of State informing the Speaker and Clerk of the Assembly rather than the Speaker and First Minister and deputy First Minister. The mechanics of seeking consent largely remain the same as the default democratic consent process.