Thread by @governmentalite

Leaving aside the Acts of Union (and "same footing" treatment between GB and NI), this raises some other points around the petition of concern, the consent vote and law-making 🧵

https://twitter.com/SJAMcBride/status/1363829338051903489

1: under the Protocol, Stormont gets to consent to the continued application of Arts 5-10 of the Protocol. This is made part of the Northern Ireland Act by specific Regulations authorised by section 8C of the 2018 EU Withdrawal Act.

2: the petition of concern (under section 42 of the Northern Ireland Act) does not apply to the consent vote

3: the language of section 42 itself makes it pretty universal, making petitions of concern apply to anything on which Stormont votes

4: so, do the new Regulations amend the Northern Ireland Act? Or do they supplement Stormont's capabilities? 👇

https://twitter.com/AileenMcHarg/status/1363838318832742403?s=19

5: either way, can the petition of concern be disapplied to the consent vote in the way the Regulations have seemingly done?

6: the challenge says that the petition, as a mode of cross community decision-making is part of the core of NI's constitutional arrangements and can only be changed by an Act of Parliament. The Regulations from earlier were authorised by s.8C EUWA 2018

6b: is "authorised by an Act" enough? The challengers say an Act itself has to make the desired changes, but anyway they say the Regulations are unlawful under the EUWA.

7: why would the Regulations be unlawful? Section 10 of the *same* Act makes it unlawful to act incompatibly with the terms of the Northern Ireland Act

8: is a Minister making regulations which disapply the petition for the consent vote "acting incompatibly" with the Northern Ireland Act?

9: Depends on whether the petition is so fundamental to the functioning of devolved government that only clear words from the highest law-making body (Parliament) will do. The Regulations were authorised and endorsed by Parliament, but are *not* an Act (and made by a Minister).

10: and as for the petition, its use has generated its fair share of controversy over the years, to the point that Stormont returned last year under a mandate to reform its use

11: ofc there is a difference between reforming the use of the petition and disapplying it. But how importantly it's viewed in law depends on the purpose of the Northern Ireland Act as the foundation of (modern) devolution:
🚨 ROBINSON 🚨

12: even if the petition was a fundamental part of constitutional arrangements in NI (and it is, even with problems in its use), section 8C of the EUWA is *extremely* broad in its language (authorising pretty much anything needed to implement the Protocol)

13: so are two sections of the same Act in conflict with each other? Has Parliament reached the limits of its powers? Will the courts shock and awe? No 😑