BELFAST — The results of the Northern Ireland Assembly election have answered a key post-Brexit question: most lawmakers in Belfast’s Stormont want the trade protocol to stay, not go away.
This matters because the protocol – part of the 2019 Withdrawal Agreement that the UK government has refused to fully implement for the past year and threatens to further disrupt — contains an easily misunderstood “consent” section.
On the face of it, it gives the newly elected assembly a bona fide chance to shoot the whole thing by 2024.
But in reality, the results of Thursday’s election mean that there is no longer any chance of this happening. The new 90-seat assembly will have no more than 37 union members hostile to the protocol. Unionists lost three seats and now have at least nine less than the required absolute majority.
The text of the protocol gives Stormont lawmakers the theoretical power to vote to ditch the treaty in 2024, leaving Northern Ireland within the EU’s single market for goods when the rest of the UK left the country in early 2021. This arrangement required new customs and sanitary controls on British goods when they arrive at Northern Ireland ports, not when crossing the land border into the Republic of Ireland, an EU member state.
Since that agreement, unionists who abhor the protocol’s creation of a so-called “Irish Sea Border” within the UK have hopefully pointed to 2024 as the time when they could lawfully torpedo the deal. But their “consent” is not required. This is why.
“Consent” in Northern Ireland’s power-sharing politics is universally understood to mean that both sides of the assembly — the British Unionist and Irish Nationalist blocs — must agree to important decisions. Both sides of the house can veto it.
The US-brokered Good Friday Agreement of 1998 presented this balanced compromise as essential to fostering peace after a three-decade conflict over the British region that left more than 3,600 dead.
The community’s consent to major decisions was intended to ensure that neither side of the house could impose its will on the other — a fundamental reassurance in a Northern Ireland that for the first half-century of its existence was run solely by trade unionists and its Irish Catholic minority suffered discrimination in terms of employment, housing and suffrage.
Yet this high “consent” threshold has made it extremely difficult to sustain such forced coalitions of natural enemies.
In the 24 years since the Good Friday breakthrough, unionists and nationalists have taken turns pulling the plug on power-sharing, most recently in 2017 when Sinn Féin’s Irish Republicans walked away for three years over still unresolved disputes with their alleged Democratic Unionist. partner.
The political institutions in Northern Ireland are often in the hands of caretakers, with appointed mandarins, unelected officials, in charge. Even today, the outgoing government is crippled by the Democratic Unionists’ pre-election decision to resign from the top office of prime minister, making decisions requiring full executive approval impossible.
Aware of this chronic dysfunction, the London and Brussels technocrats who drafted the protocol understood that their painstakingly negotiated treaty should not be vulnerable to rejection by either side. They acknowledged that Brexit itself had already trampled the concept of ‘consent’ in Northern Ireland, where 56 percent of voters, including the overwhelming majority on the Irish nationalist side, had rejected it in the 2016 referendum.
To defuse the expected trade union opposition, Article 18 of the protocol foresaw that Stormont would be asked in 2024 to show “democratic agreement” on the continuation of EU import controls on British goods. But that Article 18 supports inter-community Belfast as an optional extra – nice but not essential. To pass, the vote would require only a simple majority, allowing one party to vote out the other: an everyday occurrence in Westminster; the stuff of sectarian spirals in Belfast.
The newly elected assembly is even more pro-protocol than the last. While the outgoing assembly elected in 2017 had 40 union members, six less than a majority, the new group retains just 37.
Even that diminishing total is misleading. Lawmakers from the moderate Ulster Unionist Party, which opposed Brexit, are not determined to join Democratic Unionists in a vote against the protocol.
This means that if a Stormont vote is ever cast under the terms set out in the protocol treaty, the union members will lose it. Irish nationalists (35 seats) and pro-EU politicians from the growing cross-community Alliance Party (17 seats) form an unassailable pro-protocol majority.
Reflecting his party’s weakened but still crucial role as the largest unionist party, Democratic Unionist leader Jeffrey Donaldson warned on Saturday that the DUP would use the intercommunal consent rule to block the formation of a new government. Donaldson said he would only yield if British Prime Minister Boris Johnson first complies with the DUP’s demands to end EU controls at local ports.
“The Prime Minister and the government must act on this,” Donaldson said. “If he doesn’t perform, he must recognize that this means eternal political instability.”