Angela Merkel gave Boris Johnson 30 days to submit alternative proposals to replace the backstop. After a long wait (where it was speculated that the Prime Minister would merely amend the Withdrawal Agreement with tip-ex) the UK Government has finally submitted its plans.
Spanning seven pages, Johnson’s proposals are a mis-mash of different ideas. All the hits you know and love are back. Remember Max Fac? It’s there. Nostalgic for Customs checks? Want a border down the Irish Sea? The Johnson plan should keep you happy.
Essentially, the plans propose that Northern Ireland will remain aligned with EU rules on agriculture and industrial goods after the end of the one-year transition period. According to the Prime Minister, this provides for the “potential creation for an all-ireland regulatory zone on the Island of Ireland, covering all goods including agrifood.” At the same time, Northern Ireland will leave the Customs Union and remain fully in the UK Customs Territory.
The most intriguing part of of the government’s proposals is section three:
“ Consent
1.The zone of regulatory compliance will mean that Northern Ireland will be, in significant sectors of its economy, governed by laws in which it has no say. That is clearly a significant democratic problem. For this to be a sustainable situation, these arrangements must have the endorsement of those affected by them, and there must be an ability to exit them. That means that the Northern Ireland institutions – the Assembly and the Executive – must be able to give their consent on an ongoing basis to this zone (and to the Single Electricity Market, which raises similar issues).
2.Our proposal is that, before the end of the transition period, and every four years afterwards, the UK will provide an opportunity for democratic consent to these arrangements in the Northern Ireland Assembly and Executive, within the framework set by the Belfast (Good Friday) Agreement. If consent is withheld, the arrangements will not enter into force or will lapse (as the case may be) after one year, and arrangements will default to existing rules.”
Under Johnson’s plan, the Northern Ireland Assembly will be asked to consent to single market arrangements. Significantly, this consent will first be given “before the end of the transition period.” Stephen Barclay stated yesterday that this could happen in June 2020.
If Northern Ireland consents to the proposed arrangements, alignment will continue for a further four years. The Assembly will then have to give “consent on an ongoing basis” every four years after that.
The proposals raise many questions: can the Assembly consent to align with some EU rules and not others? The EU publishes thousands of regulations and directives a year. Won’t Northern Ireland always be lagging behind? What happens if there’s no Assembly?
A more pertinent question is this: if the Assembly is functioning, how is it going to give consent?
This is where it gets tricky. The proposals say consent it to be given “within the framework of the Good Friday Agreement.”
The language in the government’s paper is interesting. The British Government says that it will provide an “opportunity” for the Assembly to consent to alignment before the end of the transition period. The use of the phrase “if consent is withheld,” suggests, but doesn’t confirm, that we’re possibly talking about a Legislative Consent Motion. We usually talk about the devolved institutions withholding consent in relation to the Sewel Convention.
If we are talking about a Legislative Consent Motion, what does that involve?
Standing Order 42A governs Legislative Consent Motions (LCMs) A Consent Motion is usually prepared if the UK Government intends to legislate on a matter that falls within the remit of the Assembly. The Assembly will usually be asked to provide consent when the proposed legislation is in its final stages at Parliament.
The Assembly has only withheld consent once: for the Enterprise Bill in 2015.
Let’s say the EU accepts Johnson’s plan and, somehow, Stormont is sitting next year. If so, you would expect Westminster to start the process of passing a Bill next year for the Northern Ireland to remain aligned to EU single market rules. The Assembly could be asked to consent to the arrangements when the Bill is on its third reading.
The process of getting a Legislative Consent Motion starts when an Executive Minister submits proposals to the Executive for a motion to be laid. The Minister will do so when Westminster intends to legislate on a matter that relates to their Department. Once the Minister submits the proposal it is passed to the Office of the First and Deputy First Minister. The Minister must then get approval before bringing the motion to the Assembly.
Section 2.12 of the Ministerial Code outlines how decisions should be taken by the Executive
“2.12. In accordance with Section 28A (8) it is the duty of the Chairmen of the Executive Committee to seek to secure that decisions of the Executive Committee are reached by consensus wherever possible: if consensus cannot be reached, a vote may be taken, and if any three members of the Executive Committee require the vote on a particular matter which is to be voted on by the Executive Committee to require cross community support, any vote on that matter in the Executive Committee shall require cross community support in the Executive Committee. ”Cross community support” shall have the same meaning as set out in Section 4(5) of the Act. A quorum of seven members will be required for any vote. The requirement for cross-community support must be requested prior to a vote actually commencing.”
When we talk about the ‘Stormont lock,’ we think immediately of the Petition of Concern. People forget that cross community voting also happens in the Executive.
Cross community voting is defined under the Northern Ireland Act 1998, s4(5):
“a) the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or
When Sinn Fein talk about a ‘DUP veto,’ they are talking about Executive decision making.
When Devolution Matters looked at Consent Motions in Northern Ireland it noted:
‘However, few legislative consent motions have been considered in the Northern Ireland Assembly, and in practice the power to give assent is usually exercised by the Northern Ireland Executive.’
The Northern Ireland Assembly has only considered 79 LCM’s compared to 173 in Scotland and 88 in Wales.
If the Assembly is going to consent to EU or UK rules via a LCM, the first battle will be fought in the Executive, not the Assembly. There have been a number of controversies involving consent motions over the years, not least over OFMDFM declining to bring matters to the Executive to allow consent to be given.
When the Executive agrees to bring forward a LCM Memorandum, it is laid before the Assembly. It is then scrutinised by the appropriate Statutory Committee. The Committee then has 15 working days to consider the provisions of the Westminster Bill and report its opinion to the Assembly. The LCM can then be moved five working days after the Committee report or 20 working days after the date of referral to the Committee.
When the Legislative Consent Motion hits the Assembly floor, MLAs can use the Petition of Concern to call a cross-community vote on the issue if they want. As we all know, that’s when the real fun begins.
The Petition of Concern isn’t, on its own, a block to legislation. A Petition is a notice signed by 30 MLAs which expresses “concern” about any matter that the Assembly is due to vote on. The Petition is significant in terms of its effect on voting in the Assembly. Once a Petition has been presented, a vote will take on a cross community basis instead of a simple majority vote. If a motion or a piece of legislation can’t get cross community support, it fails.
The Petition of Concern means that if enough MLAs from a particular block agree, they can exercise a veto over the Assembly.
As it stands, the DUP can’t wield the Petition of Concern on its own. Talk of a DUP veto on those terms is misleading. Things could change if there’s another election. Interestingly, the DUP said in 2018 that it wanted to scrap the mechanism. Reform has been suggested and has been discussed with the British Government.
You don’t have to know the ins and outs of procedure to know that getting the Assembly to consent to alignment is going to be problematic. The Good Friday institutions aren’t built to handle decisions of this magnitude. The Assembly is there because of the peace process, set up in the spirit of trust and reconciliation.
It’s highly unlikely that there will be any cross community consensus on Brexit. There won’t be cross community support for alignment or non alignment. What happens then?
I’m in favour of Northern Ireland having some sort of say over EU and UK rules but whatever the Prime Minister has in mind, it’s obvious that he hasn’t thought this through.
“Stormont” by stevelavo is licensed under CC BY-ND
Sarah is a writer and lawyer from Belfast.
Discover more from Slugger O'Toole
Subscribe to get the latest posts sent to your email.