What is the Democratic Consent Mechanism?

Read an explainer on the Democratic Consent Mechanism.pdf (443.87 kb)

The Northern Ireland Assembly pictured during a vote on the Withdrawal Agreement in January 2020. The Assembly's first vote on Articles 5-10 of the Windsor Framework will take place in 2024.

• In 2020, following the UK’s vote to leave the EU, the EU and UK signed the Withdrawal Agreement and Protocol on Ireland/Northern Ireland, now called the Windsor Framework. Article 18 of the Windsor Framework contains what is known as ‘the democratic consent mechanism’.

• This is a vote by the Northern Ireland Assembly on Articles 5 to 10 of the Windsor Framework – these are the parts of the Framework under which Northern Ireland applies regulations relating to the EU single market. This was agreed to avoid a hard border on the island of Ireland, and to protect the EU’s single market.
  
  [Read more about the Windsor Framework in our Q&A]

• The legislative basis for the democratic consent mechanism is a regulation made in December 2020.

Assembly vote before the end of 2024

• The vote is to be held before the end of 2024 (four years after the end of the transition period).

• The motion on the continuation of Articles 5 to 10 should be proposed by the First Minister and deputy First Minister. If this does not happen, the motion can be tabled by any Member of the Legislative Assembly (MLA).

• If the Assembly votes against the motion, Articles 5 to 10 shall stop applying after two years. Exactly what would happen in this case is uncertain: the Joint Committee will make recommendations to the EU and UK on the necessary measures or alternatives.

•  If the motion is passed only with a simple majority (i.e. without cross-community support), the UK Government has stated it will commission an independent review into the Windsor Framework and its implications.

• The other articles in the Windsor Framework will remain in force regardless of the outcome of the democratic consent vote. These include provisions on rights of individuals, and the Common Travel Area.

• If the motion is passed by a majority of MLAs, the next vote will be held 4 years later. If the motion is passed by a majority of MLAs and has cross-community support, the next vote will be held 8 years later.

• The flowchart below sets out the possible outcomes of the vote.

If you experience any issues with the flowchart, you can read this text version.

Cross-community support

• Cross-community support is defined in the Northern Ireland Act 1998 as:

  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

  b) the support of 60% of the members voting, 40% of the designated Nationalists voting and 40% of the designated Unionists voting.

The democratic consent vote process

The flowchart below summarises the process and deadlines for the democratic consent vote. It should be read in conjunction with the relevant legislation and documents. The dates relate to the first democratic consent vote in 2024 and are set out in the Explanatory Memorandum for the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.

If you experience any issues with the flowchart, you can read this text version.

Independent review

• The independent review will make recommendations to the UK Government, including on “any new arrangements it believes could command cross-community support”. The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, in effect since 20 February 2024, place in law certain requirements for the review, including that it must be raised in the EU-UK Joint Committee. 

• The review must be commissioned within one month of the democratic consent vote; presented to the Government within six months; and laid before Parliament and the Assembly. Within six months, the Secretary of State must publish a written response to any recommendations made by the review.

• The Government has also stated it would will appoint an Independent Monitoring Panel (IMP) for the Windsor Framework, which would support the work of the independent review.

Alternative process

• The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020, which give legal effect to the consent mechanism, provide for an alternative process. This would apply if the offices of First Minister and deputy First Minister are vacant at the start of the democratic consent process.

• If the Assembly has not elected a Speaker, it must elect an interim Speaker by a simple majority. The interim Speaker would only hold office to enable the Assembly to consider the consent motion.

Background

Prime Minister Boris Johnson and Taoiseach Leo Varadkar met in October 2019. Shortly after this, the UK and EU reached a deal, including the democratic consent mechanism. Source: Number 10 Downing Street

• The Protocol (renamed the Windsor Framework in March 2023) was agreed between the EU and UK following the UK’s vote to leave the EU. Its objectives are “to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions.”

• To achieve these objectives, Articles 5 to 10 of the Windsor Framework contain provisions on customs, movement of goods, EU single market regulations, VAT and excise, the single electricity market, and state aid. Essentially this means Northern Ireland continues to align with many EU rules and maintains access to the EU single market for goods (unlike the rest of the UK). This removes the need for checks and controls on the island of Ireland.

• Initially, the UK Government had put forward proposals which would have required the consent of the Northern Ireland Assembly before the Protocol entered into force. [Source: Explanatory Note on UK Proposals for an Amended Protocol On Ireland/Northern Ireland] In the end, it was agreed that this consent provision will only commence after four years as above.

Further reading

Article 18 of the Windsor Framework, which contains the democratic consent mechanism, can be read on the UK Government's website

• NI Assembly ‘Brexit and Beyond’ - Q&A on Brexit and Northern Ireland
• UK Government declaration on the operation of the democratic consent provision
• Queen’s University Professor David Phinnemore on the process of arriving at the democratic consent mechanism and discussion of some potential scenarios
• NI Assembly Research Service on the Democratic Consent Mechanism
• House of Lords Library briefing on the Democratic Consent Regulations This is the legislation (statutory instrument) which puts the provisions for the democratic consent vote into domestic law.