Niall Moran: Elections in Northern Ireland – moving forward while appearing to retreat

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Niall Moran examines the outcome of this month’s historic elections to the Northern Ireland Assembly and the implications for the Northern Ireland Protocol.

The results of the Northern Ireland Assembly elections in May 2022 were a historic and positive outcome for supporters of the Protocol on Ireland and Northern Ireland.

Sinn Féin won the poll, a first for a nationalist party in Northern Ireland. The centrist Alliance party increased its first-preference vote share by 50% (from 9% to 13.5% of first-preference votes) and more than doubled its number of seats (from eight to 17) . Three-fifths of the deputies (54 out of 90) were elected on terms of support for the Protocol. (Sixty percent would typically be a deal breaker number in many other voting contexts; several U.S. states require a 60 percent supermajority for constitutional amendments, while 60 percent of the vote in the U.S. Senate is needed to overcome a filibuster. .)

While this bodes well for the medium term and the 2024 Democratic Consent Vote which will be put to MPs, there is currently an impasse in terms of the short term outlook for the Northern Ireland executive. The DUP and its leader Jeffrey Donaldson made it clear on May 9 that they would not appoint a deputy prime minister unless the UK government took “decisive actionon the Protocol. On May 13, the NI Assembly failed to elect a speaker.

During a visit to Belfast on May 16, Boris Johnson said he did not want the protocol to end, but rather wanted to see “meaningful” changes to it. He warned the UK government would make unilateral changes to parts of the Brexit deal unless the EU engages in “genuine dialogue”. The next day, Foreign Secretary Liz Truss confirmed legislative plans to “make changes” to the protocol in the coming weeks. Later in the day, Simon Coveney said the decision to unilaterally remove parts of “a binding international agreement undermines trust” and would only make it more difficult to find lasting solutions. Despite the fact that the proposed bill would rewrite an international treaty through domestic law, Truss insisted it would be “consistent with our obligations under international law.” It remains to be seen what mix of carrots and sticks the EU will adopt over the coming weeks in response to the UK’s legislative plans. The EU will no doubt bear in mind the doubts about the adoption of such legislation and the possibility that it is a tactic used to get the EU to go further than its proposals for October 2021.

Consent and the vote itself

Democratic consent is at the heart of the Protocol and the Good Friday Agreement of 1998. Article 18 of the Protocol provides that the continued application of its economic provisions – Articles 5 to 10 – will be subject to the vote of elected members of parliament in the Legislative Assembly (MLA) before the end of 2024. It is important to emphasize that Section 18 requires a simple majority of support, rather than cross-community support, for the Protocol to continue to apply. Based on the May 5 vote, this simple majority would certainly be reached.

Articles 5 to 10 mainly concern customs and the movement of goods (Article 5); technical regulations (7); VAT and excise (8); the single electricity market (9); and state aid (10). Clause 5, in particular, applies all EU customs law, including the EU Customs Code, to the United Kingdom in respect of Northern Ireland, subject to limited exceptions. Subsequent consent votes would take place after four more years, or eight years if a vote demonstrated cross-community support for these provisions. Since the cross-community support threshold requires that at least 40% of the designated union representatives vote in favor of the Protocol (18.6(b)), this threshold would not be met based on the terms of the unionist deputies in this election.

The short term

The Northern Ireland Assembly maintains a unique arrangement whereby a significant amount of power is in the hands of the larger parties of two specific sections of the community (Unionists and Nationalists). Members must designate themselves as belonging to one or the other of these categories, failing which the designation “other” applies to them. Those with the “other” designation, such as the Alliance party, cannot hold the roles of Premier or Deputy Premier. Thus, the largest unionist and nationalist party has an effective right of veto over the formation of an executive. Cross-community support is also needed for the passage of budgets, votes of confidence, etc., and MPs in the “other” category are also second class in this respect.

The Democratic Unionist Party (DUP) saw its vote drop by a quarter (from 28% in 2017 to 21.3% in 2022) in this election. Nevertheless, it remains by far the largest Unionist party, having won 25 seats compared to its nearest rival, the more pragmatic Ulster Unionist Party, which won nine seats and 11.2% of the first preference vote. . Despite this decline in support, the DUP retains a veto over the formation of an executive as the largest unionist party.

While the DUP’s opposition to the protocol was clear ahead of the May 5 election, their manifesto made no reference to the condition that their entry into government be conditional on such action by the UK government. Their 60-page manifesto contained a single reference to the British government in the protocol section, stating that “the government knows that the protocol does not have Unionist support” and that “the time has come to send a clear signal that The Irish Sea border must go and the protocol must be replaced by arrangements that restore Northern Ireland’s place within the UK‘s internal market His April 2022 document “Remove the NI Protocol” contained the same paragraph, briefly explaining that “the UK government’s command document last summer was a step in the right direction, but we need an agreement or unilateral action”.

The medium term

The DUP appears to have obtained at least some of the decisive action it demanded of the British government. The two aforementioned DUP documents contain 7 tests for any new EU-UK deal, including that they must “avoid any diversion of trade” and result in “no checks on goods going… from Britain to Ireland North”. These 7 tests appear to go considerably further than the UK Command Paper of July 2021, which for example recognized the need for risk-based checks for agri-food consignments entering Northern Ireland (paragraph 50). The EU rejected the prospect of renegotiating the protocol on the day the British command document was published. The DUP must bear in mind that going beyond the positions expressed in the command document can realistically only be done on a unilateral basis. This position is said to be opposed by nationalist and centrist parties in the NI Assembly, not to mention the lack of support to move beyond the position set out in David Frost’s command document in the rest of the UK.

Regarding the formation of an NI executive, the Alliance Party has long sought to end the nominating system and replace the cross-community voting system with a weighted majority system, which could see the exclusion of the largest unionist or nationalist party of the executive. The case for the current arrangement depends on those exercising this right of veto acting in good faith and with full transparency. If an NI executive cannot be formed within the next few months because DUP demands of another actor (the UK government) are not met, the power-sharing process loses credibility and voters will be naturally frustrated. This is particularly the case when these demands were not openly expressed to the electorate before the May 5 election.

It is not certain that a party obtaining 21% of the vote will have a perpetual right of veto on the formation of an executive of NI. The DUP’s position would be further weakened if it failed to negotiate seriously and if a stalemate persisted. Nevertheless, the current and unique power-sharing arrangements in Northern Ireland represent a balanced institutional compromise in response to long-standing intercommunal divisions. For those who wish to preserve the system in its current form, it is the responsibility to engage openly and constructively on issues surrounding the protocol with all stakeholders, including other NI parties, the UK government, the EU and, above all, with the voters. If the DUP persists in its current position, the parties may well split over who wishes to maintain different unique arrangements – the Protocol or the designation system and accompanying vetoes.

Despite short-term uncertainty over UK legislative plans as well as the formation of an NI executive, the election of 54 MPs with a mandate to support the protocol is reassuring ahead of the 2024 consent vote.

  • Niall Moran is an assistant professor of economic law at the DCU School of Law and Government. This article first appeared on the DCU Brexit Institute blog.

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