On 20 January 2020, Stormont’s MLAs declined to give their consent to the terms of the United Kingdom’s withdrawal from the European Union (EU). The outcome mattered little, however. MPs in Westminster had already voted in favour of the European Union (Withdrawal Agreement) Bill and the House of Lords approved it three days later. Stormont had been ignored.
Before the end of 2024, MLAs are set to vote again on the terms of the UK’s withdrawal from the EU, specifically the trade provisions of the Protocol/Windsor Framework. And the outcome will matter. The continuation of current arrangements that avoid checks and controls on the movement of goods across the land border and provide Northern Ireland with access to the EU single market for goods – but also contribute to the ‘Irish Sea border’ – requires the ‘democratic consent’ of MLAs.
If in a vote there is no majority of MLAs in favour of ‘democratic consent’, then Articles 5–10 of the Protocol/Windsor Framework – which also include those that allow the post–Brexit operation of the Single Electricity Market on the island of Ireland – will cease to apply at the end of 2026.
This raises the question of what will happen from 1 January 2027 if, later this year, there is no majority in favour of ‘democratic consent’. This will depend on whether the UK and EU could reach agreement on new arrangements to avoid a hard border. Absent an agreement, the terms of the UK–EU Trade and Cooperation Agreement will apply at the land border. The movement of goods into Northern Ireland from the rest of the UK would revert essentially to how they were pre–Brexit but the movement of goods between Newry and Dundalk would be subject to the same formalities, checks and controls as between Dover and Calais.
Democratic consent and cross–community divisions
Given stated positions on the Protocol/Windsor Framework, the current assumption is that MLAs from Alliance, the Social Democratic and Labour Party, and Sinn Féin will vote in favour of ‘democratic consent’, while most unionist MLAs will oppose. This would be enough for ‘democratic consent’ and so the status quo would continue.
However, with unionist votes against ‘democratic consent’, there will be no ‘cross–community’ majority, only a ‘simple’ majority. This is significant as it determines what happens next.
If there is a cross–community majority in favour of ‘democratic consent’, then current arrangements simply continue to apply and MLAs will be offered a further opportunity to give their ‘democratic consent’ to the arrangements in eight years’ time, i.e. in 2032. A cross–community majority would essentially require an overall majority of MLAs voting to be in favour and for that number to include majorities of ‘nationalist’ and ‘unionist’ MLAs. For the purposes of determining whether a ‘cross–community’ majority exists, the votes of MLAs designated as ‘other’ do not count.
If only a simple majority of MLAs – i.e. 50% + 1 of those voting – vote in favour of ‘democratic consent’, then the next opportunity to vote on the continued application of current arrangements will be after four years, so in 2028. And in the meantime, there will be an independent review of the operation of the Protocol/Windsor Framework.
Ostensibly this review could cover those elements whose continuation is not subject to ‘democratic consent’, notably the objectives (e.g. ‘to avoid a hard border and to protect the 1998 Agreement in all its dimensions’) (Article 1), the rights of individuals (Article 2), the Common Travel Area (Article 3), continued North–South cooperation (Article 11), and implementation and governance arrangements (Articles 12–16). However, these remain in place irrespective of the outcome of the vote.
The review will take place almost immediately after MLAs have voted at the end of 2024. Within a month, the Secretary of State for Northern Ireland is to have appointed an independent chairperson who then has six months to conduct the review. That review is expected to involve ‘close consultation‘ with political parties in Northern Ireland, businesses, civil society groups, representative organisations (including of the agricultural sector) and trade unions.
The focus of the review will be the functioning of the Protocol/Windsor Framework and ‘the implications of any decision to continue or terminate [regulatory] alignment on social, economic and political life in Northern Ireland’. It ‘may‘ also include, however, consideration of any effect of the Protocol/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’.
The review is expected to produce a report with recommendations ‘including with regard to any new arrangements it believes could command cross–community support’. The report will then be laid before Parliament and a copy ‘transmitted’ to the Northern Ireland Assembly with the expectation that a debate will be held. Any ‘issues raised or recommendations made’ in the report are to be forwarded to the EU–UK Joint Committee. Within six months, so before the end of January 2026, the Secretary of State must then publish a written response to the report’s recommendations as well as ‘information’ about responses to any representations about the report from Parliament or from the Northern Ireland Assembly.
Consequences
Whether any changes to the Protocol/Windsor Framework or how it is to be implemented will follow from the review remains to be seen. Of particular 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 a report and its recommendations let alone for the EU to act on them.
The review may therefore have very limited – if any – substantive effect on the Protocol/Windsor Framework. It will nevertheless provide an opportunity for views from a wide range of interests to be collected and an independent report produced. This could assist in easing tensions over Northern Ireland’s post–Brexit trading arrangements. Equally, the review could simply highlight once again the divisions within Northern Ireland that exist over the Protocol/Windsor Framework.
A ‘democratic consent’ vote later this year will not therefore be without consequence. MLAs will have a formal say on the most contested of consequences to date of Brexit. They will determine whether current arrangements under the Protocol/Windsor Framework continue or whether the UK and EU will be forced once again to seek agreement on how to reconcile Brexit with shared commitments to avoid a hard border and protect the 1998 Agreement in all its dimensions.
Also importantly, a vote by a majority of MLAs to maintain the status quo will not be a definitive vote on the future of the Protocol/Windsor Framework. ‘Democratic consent’ is time–limited and requires renewal. Given the likely absence of cross–community support for ‘democratic consent’ later this year, MLAs seem set to be asked again in 2028 – and possibly not for the last time – on whether they wish current arrangements to continue.
David Phinnemore is Professor of European Politics at Queen’s University Belfast and leads the Post-Brexit Governance NI project exploring the multilevel dynamics of Implementing the Protocol on Ireland/Northern Ireland. This blog draws on the project’s recently published explainer on The Protocol/Windsor Framework and the 2024 Democratic Consent Vote
