Democratic consent mechanism and the Northern Ireland Assembly

David Torrance

On 31 October, the Secretary of State for Northern Ireland has to notify certain individuals of the start of the democratic consent mechanism. This will allow the Assembly to decide whether or not certain European Union (EU) laws will continue to apply in Northern Ireland.

This Insight explains how the consent mechanism vote will work later this year.

What is the Northern Ireland Protocol?

The Protocol on Ireland and Northern Ireland formed part of the UK’s Withdrawal Agreement from the EU and took effect on 1 January 2021.

Article 18 sets out the process by which the Northern Ireland Assembly’s 90 MLAs (Members of the Legislative Assembly) can provide “consent” for Northern Ireland to continue to abide by articles 5 to 10 of the Protocol. These are:

arrangements for customs and movement of goods (article 5)
protection of the UK internal market (article 6)
technical regulations, assessments, registrations, certificates, approvals and authorisations (article 7)
VAT and excise (article 8)
the single electricity market (article 9)
state aid (article 10)

These all relate to the EU’s single market and provide for the direct application of EU law in Northern Ireland.

In a vote which has to take place by 27 December 2024, MLAs will decide whether or not to consent to the continued application of relevant EU law.

The UK left the EU on 31 January 2020 and the Protocol came into force on 1 January 2021. A majority of MLAs returned at the May 2022 Assembly election supported the Northern Ireland Protocol.

How will the consent vote work?

The consent mechanism was given binding legal effect in the UK by The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020. These inserted a new schedule 6A into the Northern Ireland Act 1998 (the act that established Northern Ireland’s devolved institutions). Parts of the Protocol were amended in March 2023 and is now known as the Windsor Framework. These changes did not affect article 18 of the Protocol.

Under schedule 6A, on 31 October 2024 the Secretary of State for Northern Ireland must notify the First Minister and deputy First Minister and the Assembly Speaker that the democratic consent process has begun. The Speaker then brings this notification to the attention of MLAs.

Majorities and cross-community support

Consent only requires a simple majority in the Northern Ireland Assembly. There is no Petition of Concern (veto) mechanism or requirement for cross-community support. The latter is defined in the 1998 act as a majority of both designated Nationalists and Unionists voting, or 60% support from MLAs voting, including 40% of designated Nationalists and Unionists voting.

At the first Assembly meeting following an election, MLAs “designate” themselves “Nationalist”, “Unionist” or “Other”. The Petition of Concern mechanism allows 30 or more MLAs to petition the Assembly for a vote to require cross-community support rather than a simple majority.

Tabling of the motion

Under the “default” consent process, the motion on the continuation of articles 5 to 10 should be proposed by the First Minister and deputy First Minister acting jointly. If this does not happen by the end of November, the motion can be tabled by any MLA between 1 and 6 December inclusive. If that also does not happen, then the Assembly Speaker must table the motion. Schedule 6A prescribes the precise wording of the motion to be voted on by the Assembly, and this wording cannot be amended.

Schedule 6A also provides for an “alternative” process if there is no functioning Assembly and Executive. In this case, the Assembly must elect an interim Speaker by a simple majority. The interim Speaker would only hold office to enable MLAs to consider a consent motion during the two-month period.

What happens after the vote?

What happens next depends upon how the Assembly votes.

The Assembly Speaker must notify the Secretary of State of the outcome by 27 December, and, in turn, the Secretary of State must notify the European Commission by or on 31 December 2024.

Voting against the motion

If the Assembly votes against the motion, Northern Ireland’s alignment with EU law would automatically end two years later, allowing time for the EU and UK to seek to agree alternative arrangements.

At a press conference introducing the deal, the EU’s then chief negotiator Michel Barnier described this as a “cooling off” period. The EU-UK Joint Committee (which oversees implementation and application of the Withdrawal Agreement) may then consult Northern Ireland’s devolved institutions and provide recommendations to the EU and UK “on the necessary measures” to be taken.

Voting for the motion

If the motion is passed by a majority of MLAs, the next vote will be held four years later. If the motion is passed by a majority of MLAs and has cross-community support, the next vote will be held eight years later.

If the motion is passed only with a simple majority (without cross-community support), the UK Government has said it will commission an independent review on “the implications of any decision to continue or terminate alignment [with the EU] on social, economic and political life in Northern Ireland”.

The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 stipulated certain requirements for this review. It has to be commissioned within one month of the vote and report within six months.

Other parts of the Windsor Framework

Other parts of the Windsor Framework will remain in force regardless of the vote outcome. These include provisions on rights of individuals and the Common Travel Area, which do not require EU law to apply directly in Northern Ireland.

The UK Government’s 2019 unilateral Declaration on Consent (PDF) affirmed that the democratic consent process has no implications for the constitutional status of Northern Ireland, as governed by the Belfast/Good Friday Agreement.