Dan Boucher: Lord Murphy must see that the Windsor Framework is putting the Belfast Agreement in jeopardy

The failure of the vote to secure cross-community consent has triggered a review of the operation of the Windsor Framework which is being conducted by the former Northern Ireland secretary, Lord Murphy.

It will only be possible to really appreciate the far-reaching consequences of the December 10 vote if we understand why majority voting on matters of great controversy had stopped.

In July 1971 nationalist MPs at Stormont decided they were no longer prepared to be part of the Northern Ireland Parliament where they found majority voting effectively made them the minority of a nation that had made decisions they felt constituted an existential threat to them.

That October they broke away to form their own unofficial Parliament to represent the nationalist people of Northern Ireland. This obviously made the governance of Northern Ireland very difficult and the following March the UK government terminated the Parliament of Northern Ireland and imposed direct rule.

From March 1972 until December 2024 there was never again a majority vote on a matter of deep controversy at Stormont. It was only possible for devolution to be re-established in 1998 because of the Belfast Agreement commitment to cross-community consent.

This did not mean that henceforth all Stormont decisions were made on the basis of cross-community consent. Most are taken by simple majority.

Cross-community consent, however, has provided an important safeguard for each community in the sense that if they ever felt a proposition constituted an existential threat to them - and was likely to pass by a majority vote - they could invoke cross-community consent, and the proposition could not pass without the consent of both unionists and nationalists.

While this mechanism can be abused if not reserved for existential threats, it is hard to make the legislature of a divided society work without it.

When the UK government said the Northern Ireland Assembly should vote on whether to accept the application of the Northern Ireland Protocol, the EU was unhappy because they realised that as the protocol proposition had the effect of partitioning the UK in 300 areas of law, it would constitute an existential threat to unionists and that, on the basis of the Belfast Agreement cross-community consent provision, it would inevitably be rejected.

They only consented on the condition that that safeguard was disapplied from the vote. The UK government agreed and took the necessary legislation through Parliament in November 2020.

The EU and UK government sought to justify their actions by saying that the vote was on an ‘excepted matter’ which the Belfast Agreement does not cover. This is nonsense.

The Belfast Agreement does not define the competence of the assembly. It just mandates that decisions made at Stormont should have recourse to cross-community consent.

Moreover, once you have said there is no need for cross-community consent in the context of the most controversial proposition to have ever come before the assembly (transferring law making in 300 areas to Dublin and the EU for four years, for the purpose of creating an all-island economy for goods, disenfranchising the people of Northern Ireland in those areas), what possible justification can there be for demanding it in relation to less controversial matters?

If we are to really appreciate the assault on this central plank of the Northern Ireland political settlement, however, we must recognise two further difficulties.

First, although the December 10 vote was just one occasion on which cross-community consent was swept away, it has effectively disabled it on multiple occasions in relation to all the votes in the 300 areas over the next four years that would have otherwise taken place at Stormont.

Second, having facilitated the overruling of cross-community consent on December 10, the government has since overruled it on two further occasions, dismissing the first attempt to pull the Stormont Brake (January) and in refusing to honour the first attempt by the assembly to block an Applicability Motion (April).

Lord Murphy must face up to the way in which the operation of the Windsor Framework is placing the Belfast Agreement in jeopardy, undermining cross-community consent and much else besides.

This is, in turn, placing the Windsor Framework in jeopardy because its underlying objective to is ‘protect the 1998 agreement in all its dimensions’, Article 1 (3), and because it is supposed to operate within the safeguards of Article 16.

By contrast, mutual enforcement would uphold the Belfast Agreement and avoid a hard border.

Dr Dan Boucher is an ex-DUP policy director and now aide to the TUV leader Jim Allister MP