Roderick Crawford edited Parliamentary Brief 1992-2012 and currently works in conflict resolution. He is director of If You Are Safe I Am Safe.
The Prime Minister has negotiated a deal that puts consent back at the heart of decision-making about the future economic regulatory framework for Northern Ireland. The principle of consent was the cornerstone of the Good Friday Agreement, and it is the cornerstone of this new deal. Whereas the people of Northern Ireland were to be subject to substantial changes in economic governance without their consent being sought, their consent is now the key condition on which any long-term regulatory system must rely.
This changes the power balance from technocrats to democrats and makes sure that, even in the periods between votes, the views of the people and their elected representatives must and will be listened to seriously. No-one can assume that there will not be a Unionist majority in future assemblies: whilst a requirement for Unionist consent is not going to be institutionalised that does not mean that a Unionist majority won’t materialise, particularly if the arrangements prove unsatisfactory.
The argument for cross-community support
Despite statements that the consent mechanism is not that which is authorised by the Good Friday Agreement it is hard to see how this can be so. The arrangements for ‘parallel consent’ and weighted majorities are designed as safeguards when the Assembly is making decisions on matters that are devolved to it. This does not apply here, where we have an international treaty that affects Northern Ireland. A simple majority vote is thus appropriate, as it was in 1998, albeit then through a referendum rather than an assembly vote which, in these circumstances, is both far more practical and appropriate to the scale of change to be decided on.
In arguing for cross-community support for continuation of the alignment with the single market rules, the DUP are pointing to the arrangements for voting set out under Stand One, Democratic Institutions in Northern Ireland, paragraph 5 (‘Safeguards’), which reads as follows:
(d) ‘arrangements to ensure key decisions are taken on a cross community basis.
‘(i) either, parallel consent, i.e. a majority of those members present and voting, including a majority of unionist and nationalist designations present and voting’;
‘(ii) or a weighted majority (60%) of members present and voting, including at least 40% of each of the nationalist and unionist delegations present and voting.
‘Key decisions requiring cross-community support will be designated in advance, including election of the Chair of the Assembly, the First Minister and deputy First Minister, standing orders and budget allocations. In other cases such decisions could be triggered by a petition of concern brought by a significant minority of Assembly members (30/108).’
However, there is a fundamental problem with this argument. The special arrangements set out above relate to the executive and legislative authority of the democratically elected devolved assembly (paragraph 1 of the same section), which exercises full legislative and executive authority in respect of matters that are devolved (paragraph 3 and 4). These safeguards exist solely for devolved matters in order to ensure that each community has safeguards against legislative or executive action being imposed on it by the other community.
The revised Protocol (‘the new deal’) agreed between the UK and the EU is an international treaty and the matters for which the DUP are seeking to have consent subjected to cross-community support are not matters that are devolved to the assembly: they are matters for Westminster.
The case for a ‘Unionist veto’ was rejected by nationalists, the Republic and the EU, whilst UK-wide Unionists failed to mount a defence of it because, under examination, they could not find the grounds for doing so.
The case for simple majority consent
The rationale for a democratic vote on continued Single Market alignment is that leaving Northern Ireland under a system of economic regulation from which the rest of the UK will be departing represents a change in economic regulation from that of the rest of the UK and that it will be governed by rule makers that are not accountable to the people of Northern Ireland. This democratic deficit needed to be addressed: requiring consent for the continuation of EU regulatory alignment achieves this.
These circumstances were not foreseen in 1998, and so the exact consent formula is not set out in that agreement. David Trimble has pointed to the Constitutional Issues section of the Belfast (Good Friday) Agreement, 1(iii) which states ‘it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people’, which suggests a majority vote or referendum — certainly not a vote under one of the safeguard formulas set out above. Others would argue that ‘any change in status’ refers to the earlier sentences of this paragraph and so is a reference to Northern Ireland being incorporated into the Republic.
Two things are certain: this is not a matter that the Good Friday Agreement anticipated, and the Good Friday Agreement is founded on and runs on the principle of consent. Therefore, the spirit of the agreement requires consent and the ‘safeguard’ clauses not applying, the vote, as for the Good Friday Agreement or for a border poll, would be based on a simple majority vote; for all practical purposes such a majority vote in the Assembly provides the only means of providing that consent. It also has the merit of making reforms to the assembly a priority, to ensure that the devolved administration can function as envisaged in the Good Friday Agreement — a priority that will now have the full support of both governments.
The new deal’s achievement
When the Belfast Agreement was negotiated there were deep divisions in the Unionist community, and those grew in the following years as the peace process made its convoluted, painful and sometimes unjust journey. Yet the Belfast Agreement now has majority and cross-community support, including from many of its former opponents. The new deal and its implementation are straightforward and painless in comparison.
The Belfast Agreement brought stability to Northern Ireland and secured its place in the United Kingdom. The revised Protocol had not only to address the democratic deficit inherent in the backstop, but also to ensure stability in Northern Ireland and secure its place in the United Kingdom in the decades to come (as well as meet all the wider-UK objectives and those of the EU).
It has achieved this. These negotiations have demonstrated again that the United Kingdom is capable of providing the delicate constitutional balance that benefits all communities and their interests in Northern Ireland. The government has to work for all communities in Northern Ireland, and the new deal represents a successful outcome for the whole.
This in no way understates the concessions that have been made to the EU in these negotiations: the immediate price of a deal that can pass the Commons has been paid by Northern Ireland Unionists more than any others. However, rather than see it as a cost or a loss, it should be understood as an investment — an investment in the Union, in Northern Ireland’s stability, and in securing consent in the decades ahead for maintaining the Union; the new deal also gives Northern Ireland a unique selling proposition for inward investment, one that Northern Ireland should prosper from in the decades to come.