The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020

JurisdictionUK Non-devolved
CitationSI 2020/1500

2020 No. 1500

Exiting The European Union, Northern Ireland

The Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020

Made 9th December 2020

Coming into force 10th December 2020

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 8C(1) and (2) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 20181.

In accordance with paragraph 8F(1) of Schedule 7 to that Act, a draft of this instrument has been laid before and approved by a resolution of each House of Parliament.

S-1 Citation and commencement

Citation and commencement

1.—(1) These Regulations may be cited as the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.

(2) They come into force on the day after the day on which they are made.

S-2 Amendment of the Northern Ireland Act 1998: democratic consent process

Amendment of the Northern Ireland Act 1998: democratic consent process

2.—(1) The Northern Ireland Act 19982is amended as follows.

(2) After section 56 (Civic Forum) insert—

PART 5A

EU WITHDRAWAL: DEMOCRATIC CONSENT PROCESS

S-

Democratic consent process

Schedule 6A (EU Withdrawal: democratic consent process) has effect.”

(3) After Schedule 6 (standing orders: further provision)3insert Schedule 6A in the Schedule to these Regulations.

Brandon Lewis

Secretary of State

9th December 2020

Northern Ireland Office

SCHEDULE

Regulation 2

EU Withdrawal: democratic consent process

SCHEDULE 6A

Section 56A

EU WITHDRAWAL: DEMOCRATIC CONSENT PROCESS

PART 1

General

Introduction

Part 2 of this Schedule requires the Secretary of State to initiate the democratic consent process in relation to each new continuation period.

Part 3 of this Schedule establishes, for the purposes of Article 18 of the Protocol as read with the unilateral Declaration, the default democratic consent process referred to in paragraphs 3 and 4 of the unilateral Declaration.

Part 4 of this Schedule establishes, for the purposes of Article 18 of the Protocol as read with the unilateral Declaration, the alternative democratic consent process referred to in paragraphs 5 and 6 of the unilateral Declaration.

Part 5 of this Schedule makes provision about procedural matters and the outcome of the democratic consent process.

Part 6 of this Schedule makes provision about an independent review into the functioning of the Protocol.

To the extent that the standing orders of the Assembly are inconsistent with this Schedule, this Schedule (rather than the standing orders) is to have effect.

For the purposes of this Schedule, a motion that is tabled and then withdrawn is to be regarded, at times after its withdrawal, as not having been tabled.

In this Schedule—

“alternative democratic consent process” means the democratic consent process established by Part 4 of this Schedule;

“default democratic consent process” means the democratic consent process established by Part 3 of this Schedule;

“democratic consent process” means the process by which—

(a) democratic consent in Northern Ireland to the continued application of Articles 5 to 10 of the Protocol is to be sought, and

(b) a decision expressing that democratic consent is to be made;

“notification of the start of the democratic consent process” has the meaning given in paragraph 4;

“Protocol” means the Protocol on Ireland/Northern Ireland to the EU withdrawal agreement4;

“unilateral Declaration” means the declaration by Her Majesty’s Government concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol made on 17 October 2019.

Meaning of “consent resolution” and effect if consent resolution rejected

In this Schedule “consent resolution” means a resolution of the Assembly in this form—

That Articles 5 to 10 of the Protocol on Ireland/Northern Ireland to the EU withdrawal agreement should continue to apply during the new continuation period (within the meaning of Schedule 6A to the Northern Ireland Act 1998).

This Schedule ceases to apply at the end of a particular current period if—

by that time, the Assembly has decided the question on a motion for a consent resolution which relates to the new continuation period, but

the Assembly did not pass the consent resolution.

Meaning of “continuation period”, “current period” etc

In this Schedule—

“continuation period” means—

(a) the period of four years or eight years (as determined in accordance with sub-paragraph (2)) that begins with the day that follows the last day of the initial period;

(b) each subsequent period of four years or eight years (as determined in accordance with sub-paragraph (2)) that begins with the day that follows the last day of the preceding continuation period;

“current period”, in relation to a new continuation period, means—

(a) the initial period, in the case where that period immediately precedes the new continuation period, or

(b) the continuation period which immediately precedes the new continuation period, in any other case;

“initial period” means the period of four years that begins with the day that follows IP completion day5;

“new continuation period” means, at any particular time, the first continuation period that is to begin after that time.

The duration of a continuation period is to be—

four years if the consent resolution which relates to that continuation period was passed by a majority of the members voting but not with cross-community support6;

eight years if the consent resolution which relates to that continuation period was passed with cross-community support.

In this Schedule, a period set out in an entry in the first column of this table has the meaning given in the corresponding entry in the second column of the table—

Period

Meaning

“final two months of the current period”

the period of two months ending with the last day of that current period

“final one month of the current period”

the period of one month ending with the last day of that current period

“final 25 days of the current period”

the period of 25 days ending with the last day of that current period

“final 15 days of the current period”

the period of 15 days ending with the last day of that current period

“final 5 days of the current period”

the period of 5 days ending with the last day of that current period

PART 2

Duty of Secretary of State to initiate the democratic consent process

Duty to give notification of the start of the democratic consent process

The Secretary of State must give a notification of the start of the democratic consent process in relation to each new continuation period.

The notification relating to a new continuation period must be given on the day immediately before the start of the final two months of the current period.

The notification must be given in accordance with Part 3 (if that Part is applicable) or Part 4 (if that Part is applicable).

The “notification of the start of the democratic consent process” that relates to a new continuation period is a written notification that—

states the date of the first day of the new continuation period, and

states that, before that date, Her Majesty’s Government in the United Kingdom must notify the European Commission of the outcome of the democratic consent process established by this Schedule in relation to the continued application of Articles 5 to 10 of the Protocol during the new continuation period.

PART 3

Default Democratic Consent Process

Application

This Part applies if the First Minister and the deputy First Minister hold office (including if another Northern Ireland Minister is exercising the functions of either office in accordance with section 16A(11)7) at the beginning of the day on which the Secretary of State is required to give the notification of the start of the democratic consent process in relation to a new continuation period.

Giving the notification of the start of the democratic consent process

The Secretary of State must give the notification of the start of the democratic consent process to—

the First Minister and the deputy First Minister, and

the Presiding Officer.

The notification of the start of the democratic consent process must state that the default democratic consent process applies.

Presiding Officer to inform members of the Assembly

On receipt of a notification of the start of the democratic consent process under this Part, the Presiding Officer must take such steps as the Presiding Officer considers necessary to bring the notification to the attention of the members of the Assembly.

Consent resolution: motion by First Minister and deputy First Minister

This paragraph applies where the Secretary of State gives a notification of the start of the democratic consent process under this Part in relation to a new continuation period.

Before the start of the final one month of the current period, the First Minister and the deputy First Minister acting jointly may table notice of a motion for a consent resolution which relates to the new continuation period.

No other member of the Assembly may table notice of a motion for a consent resolution which relates to the new continuation period before the final one month of the current period.

If they have tabled notice of a motion under this paragraph, the First Minister and the deputy First...

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