Written evidence submitted by Professor Katy Hayward[1] (TTC 10)


Post-Brexit Northern Ireland is in a highly complex legal, constitutional and governance environment. It now follows UK legislation (in reserved matters), retained EU legislation (through the Protocol on Ireland/Northern Ireland), amended EU legislation (including through UK Government Ministers’ regulations), and NI (devolved) legislation. Amid this complexity, it is of paramount importance that procedures in Westminster ensure that the NI Assembly is informed of amendments to legislation that affect its competence and that there is sufficient means and time given for such legislation to be scrutinised effectively, including by the legislature for the affected region.


  1. Northern Ireland is in a unique position in the UK, primarily because of the 1998 Good Friday (Belfast) Agreement. This is of consequence for the territorial constitution of the UK as a whole.
    1. The ‘three strands’ of the 1998 Agreement are interlocking and interdependent. The success of power-sharing within Northern Ireland, for instance, is connected to that of North-South cooperation and, indeed, British-Irish relations.
    2. Policy-making and legislation in Northern Ireland (NI) has to be made in recognition of the potential knock-on effects for North-South and British-Irish cooperation. This has been significantly complicated by withdrawal from the EU and by the Protocol on Ireland/Northern Ireland.
    3. The 1998 Agreement affects the scope of legislation that can be passed by UK Government Ministers under the EU Withdrawal Act (2018).


  1. Weakness and flaws in the process by which consent is given from Northern Ireland to the UK Parliament have been exposed in the past year. There are now major UK Acts, with a direct impact on NI devolved powers, which the NI Assembly has either not given its consent to or has not been formally informed about.
    1. The NI Assembly has not given its consent to major pieces of UK legislation that fundamentally affect the territorial constitution of the UK and the governance of NI.


  1. The use of secondary legislation to manage potential legislative deficiencies in the UK’s withdrawal from the EU has compounded the problems regarding scrutiny and consent from the NI Assembly.
    1. The EU Withdrawal Act (2018) and EU Withdrawal Agreement Act (2020) grant powers to UK Government (UKG) Ministers to make regulations in devolved areas of competence by way of statutory instrument (SI), where those powers intersect with EU law. This in order to ensure that the statute books across the UK continued to function properly after the end of the transition period.
    2. It is for the UK Parliament to scrutinise the powers or exercise of functions by UKG ministers, not the NI Assembly, even where these powers affect the legislative or executive competence of the DAs.
    3. However, where such SIs are deemed to be necessary, the UK Minister is to inform the NI Minister. It is then for the relevant Minister to decide whether or not they wish to give consent. Where an NI Minister agrees that such an SI should apply to NI, legislation on devolved matters is then made without the opportunity for the Assembly to carry out its usual scrutiny
    4. The NI Assembly has no formalised procedure for scrutiny of Statutory Instruments (SIs) as it only requires LCMs in respect of Bills.
    5. In further contrast to the Senedd and Scottish Parliament, there was no amendment to the Standing Orders of the NI Assembly to enhance the process for scrutiny of regulations made under the 2018 Act, where UK Ministers lay before the UK Parliament regulations in areas within the legislative competence or executive competence of the DAs.
    6. The scale and speed of the passing of secondary legislation in the last few months of the transition period also caused difficulties for the NI Assembly.


  1. Some things can be done differently by the House of Commons in order to address some of the deficiencies in scrutiny and consent from the NI Assembly.
    1. Westminster should allow sufficient time for scrutiny by devolved legislatures and committees.


  1. The Protocol on Ireland/Northern Ireland in the Withdrawal Agreement has transformed the conditions for governance in Northern Ireland, including vis-à-vis Westminster.
    1. The Protocol sets out some 325 pieces of EU legislation that are applicable in Northern Ireland, approximately half of which fall within, or partially within, the devolved powers in Northern Ireland. When these are amended or updated by the EU, the NI statute book will have to be adjusted accordingly
    2. The UK authorities are responsible for implementing and applying the provisions of EU law that will be applied to Northern Ireland by the Protocol (Art 12.2).
    3. Sections 21 and 22 of the 2020 EU Withdrawal Agreement Act state that a UK Minister or a devolved authority (including a Northern Ireland Executive Minister), either acting alone or jointly, may make regulations to give effect to the Protocol.
    4. The House of Lords EU Committee Report on the Protocol (June 2020) called on the “Government to set out the process by which it will consult and notify the Northern Ireland Executive and other devolved authorities on its proposed approach to making domestic regulations required under the Protocol.”[5] The Government has so far failed to answer this clearly.
      • The Government has instead stated that  it is “working closely with the Executive”, that there is “regular engagement at official level and Ministerial level where appropriate”, that there will be no Joint Committee decision on Northern Ireland “without sufficient consultation with the Northern Ireland Executive” and that it will “provide as much information in Explanatory Memoranda (EMs) as feasible”.[6]
    5. In correspondence of 6 January 2021 to the Committee for the Executive Office, Michael Gove said in respect of the Withdrawal Agreement that, “Much of the legislation that will apply to Northern Ireland falls under the exclusive competence of its institutions, and it is important that oversight of devolved policy responsibilities continues to rest primarily with the Assembly.”[7]  However, the Process as to how this happens is still unclear.
    6. Also unclear is the matter of what will happen if NI Ministers are unwilling or unable to make regulations necessary to implement the Protocol or if the Assembly chooses either to annul or not to approve any such regulations that are made.
    7. As things stand, there is much potential for inter-parliamentary tension, and confusion over competence, between Westminster and the NI Assembly regarding the Protocol.


[1] Professor of Political Sociology, Queen’s University Belfast. This evidence is being submitted in a personal capacity and to supplement the oral evidence given on 3 March 2021.

[2] NI Assembly debate on the European Union (Withdrawal Agreement) Bill, 20 January 2020. http://aims.niassembly.gov.uk/officialreport/report.aspx?&eveDate=2020-1-20&docID=291366 (accessed 8 March 2021).

[3] On 30 December 2020, the First and Deputy First Minister moved a motion, That this Assembly takes note of the trade and cooperation agreement between the United Kingdom and the European Union. However, no NI Minister laid a memorandum before the Assembly and there was no Executive position on the LCM and none was brought to the Assembly. The Assembly subsequently resolved the amendment moved by the SDLP, which included the statement that callsfor this Assembly to decline legislative consent to the British Government to impose the European Union (Future Relationship) Bill, their inferior trade deal and their Brexit against the will of the people of Northern Ireland. The Speaker said it was his ‘intention to convey the results of today's sitting to the relevant authorities’ (http://aims.niassembly.gov.uk/officialreport/report.aspx?&eveDate=2020/12/30&docID=320953) (accessed 6 March 2021).

[4] See, for example, the record of the Committee on Agriculture, Environment and Rural Affairs on those amended regulations it was being asked to note; ‘The Committee wishes it to be clearly understood that due to a lack of information on […] and the limited time that it has had to consider it, it has been unable to fully explore and understand the potential impacts and implications to this jurisdiction’; see http://www.niassembly.gov.uk/globalassets/documents/committees/2017-2022/agriculture-environment-and-rural-affairs/minutes-of-proceedings/2020---2021/mops-8-october-2020.pdf (accessed 6 March 2021).

[5] House of Lords European Union Committee, The Protocol on Ireland/Northern Ireland, Ninth Report of Session 2019-21, 1 June 2020, HL Paper 66; https://publications.parliament.uk/pa/ld5801/ldselect/ldeucom/66/6614.htm#_idTextAnchor140 (accessed 6 March 2021).

[6] Government response to the Committee's report on the Protocol on Ireland/Northern Ireland, 4 September 2020; https://committees.parliament.uk/publications/2362/documents/23310/default/ (accessed 6 March 2021).

[7] http://www.niassembly.gov.uk/globalassets/documents/committees/2017-2022/executive-office/brexit-scrutiny/other-correspondence/20210106-michael-gove-mp-response---future-relationship-with-the-eu2.pdf (accessed 8 March 2021).