Northern Ireland is the part of these islands likely to be most affected by Brexit. As Parliament is currently debating the Government’s proposed new approach to the EU, issues about Northern Ireland require detailed consideration, especially in light of the Good Friday / Belfast Agreement.

Bearing in mind the Agreement, the political and constitutional implications for Northern Ireland of the proposals in the Johnson letter to the EU are worrying.

Cross-community agreement and the petition of concern

The Good Friday / Belfast Agreement envisages that the Assembly takes certain decisions on a cross-community basis. The Agreement and the Northern Ireland Act 1998 specify certain decisions where this is required and also provide for the possibility of a petition of concern whereby 30 members of the Assembly can require a decision be made on a cross-community basis.

The standing orders of the Assembly permit the petition of concern procedure to  be used for any matter. This has led to it being used frequently and often for purposes arguably not imagined at the time of the Agreement.

Some reports refer to the notion of giving the DUP a veto. This is slightly misleading. Under the previous Assembly the DUP had more than 30 MLAs and so could trigger a petition of concern. They also constituted the majority of unionists in the Assembly and so in this context could veto any matter. In the most recent Assembly elections the DUP secured 28 seats and so their ability to use the petition of concern without support from other parties has ended. Of course it is difficult to predict the seat allocation after any future election.

Nevertheless the petition system envisages cross-community voting rules that create mutual vetoes for nationalists and unionists. This is understandable given the jurisdiction’s history. At the same time it is a recipe for getting nothing approved.

And this means it is critical to know what question would be before the Assembly and what the default position would be in the event of a veto being deployed.

The letter to the EU

Prime Minister Johnson’s letter to the EU indicates that the default is that NI should be subject to the same regulatory framework as the rest of the UK; this is the implication of his fourth element. The letter proposes that the Executive and Assembly should have the opportunity to endorse the position whereby NI would be subject to a different regulatory regime than the rest of the UK: ‘If consent is not secured, the arrangements will lapse. The same should apply to the Single Electricity Market, which raises the same principles.’

The letter does not say whether the petition of concern rules would apply to these decisions. Nigel Dodds, DUP MP speaking on various media on the morning of 3 October, clearly implied they would. He indicated that there would be regulatory divergence from Great Britain only if unionists agreed.

Formally of course both nationalists and unionists would have a veto due to the cross-community rules but the question posed and the default position favour the presumed DUP position.

This is all very problematic. The Government and the DUP do not suggest that cross-community rules should apply to decisions like whether the UK brexits or whether the UK brexits on a no-deal basis or whether NI leaves the Single Market and Customs Union.

The context is that  Northern Ireland voted against Brexit (56% majority), and that in the most recent European Parliament elections 2/3 of 3 the NI seats went to pro-Remain parties (Sinn Féin and the cross-community Alliance).

Polls from Lucid Talk consistently show that a majority of NI opinion favours the backstop arrangements. According to the polls this is the overwhelming position among both nationalists and ‘others’. The contrary is true for unionists: an overwhelming majority of DUP voters oppose the backstop and the majority of UUP voters also oppose (a quarter of UUP supporters support the backstop).

The views expressed by Nigel Dodds assumes that the standing order petition of concern rules apply to these decisions mentioned in the Johnson letter. We could imagine other procedures. For instance the Assembly could be asked to approve changes to the default position in 1998.

The justification for this proposal may be about respecting the promises in paragraph 50 of the Joint Report adopted in December 2017; in that paragraph the UK commits to ensuring no new regulatory barriers will develop between NI and the rest of the UK unless the NI Executive and Assmebly agree. But there are other ways to secure this.

For instance, were the backstop  operational, the UK could adapt the legislative consent procedure to give effect to. Under the Sewel convention the Westminster Parliament does not normally legislate with regard to devolved matters without the consent of the relevant legislature. When Westminster proposes to do so it is normal to seek a legislative consent motion from the relevant legislature.

If the backstop in the Withdrawal Agreement were operational, then NI would be part of the customs territory of the EU and for many purposes part of the single market. To safeguard legitimate concerns about access to the GB market it should be possible to adapt the legislative consent procedure so that if the Westminster Parliament were proposing to adopt regulations which impeded NI access to the GB market then Westminster should seek a legislative consent motion from the NI Assembly approving the divergence. Alternatively, Westminster could adopt a procedure whereby legislation creating such impediments could be vetoed by the NI Assembly.

Rigorous impartiality?

Instead of any discussion of developing cross-community rules or other procedures to protect all the legitimate interests involved, the Johnson letter implies one that seems to, in practice, create a unionist veto.

It is difficult to square this with the Agreement’s requirement that ‘the power of the sovereign government with jurisdiction there shall be exercised  with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions’.

Even more troubling is the four-year rolling consent proposal. This seems a recipe to make every election and much of political debate about Brexit, relations with Ireland and the EU and potentially the ‘constitutional question’. The 1998 Agreement provided nuanced solutions to difficult issues of borders, identity and sovereignty which meant the constitutional question did not need constant discussion. As research from BrexitLawNI and others suggest, Brexit changes that. The four-year proposal risks making  the constitutional question omnipresent.

This in the context that NI has not had devolved  government for more than 1000 days. Thanks to a breakdown in trust, disagreement over specific issues (Irish Language Act, equal marriage) and Brexit, a restoration of devolved government has been difficult to achieve. The proposals in the Johnson letter would add to the challenge.

There is much speculation that the Johnson letter proposals are not intended to be taken seriously; perhaps that is the best that can be said for them. At the moment the practical effect of the proposals would seem to prioritise giving one of the two main communities in NI an effective veto. This is a highly selective interpretation of the principles in the Good Friday/ Belfast Agreement.

I am grateful to Jeff King (UCL) and Colm O Cinneide (UCL) for comments on a draft of this blog.

Rory O’Connell, Professor of Human Rights and Constitutional Law and Director of the Transitional Justice Institute, Ulster University

(Suggested citation: R. O’Connell, ‘The Johnson Letter and Cross-community Agreement in Northern Ireland’, U.K. Const. L. Blog (4th Oct. 2019) (available at https://ukconstitutionallaw.org/))