Why did the EU agree with a Stormont vote when the Assembly might not even meet?

Question

The breaking news seems to be that Boris Johnson has struck a new deal with the EU. But the DUP is not on board. One interesting aspect is that

Northern Ireland representatives will be able to decide whether to continue applying union rules in Northern Ireland or not every four years

Mr Barnier told a press conference in Brussels that the final point - allowing for votes in the Northern Ireland Assembly - was "a cornerstone of our newly agreed approach".

The decision would be based on a simple majority, rather than requiring a majority of both unionists and nationalists to support the rules in order for them to pass.

About a week ago the EU had rejected this idea altogether

A “third party”, like the Northern Ireland Assembly, could not be allowed to impose a time limit on the arrangements set out in the proposed withdrawal agreement, commissioner Guenther Oettinger told journalists.

So clearly the EU made a concession. But so did the UK, the majority vote basically denies the DUP a veto they current have in Stormont, assuming the Northern Ireland Assembly actually meets; it hasn't in almost 3 years. But even with that British concession (on foregoing the "double lock" on this matter), why did the EU agree with a Stormont [majority] vote that might not even happen? Did the EU get any guarantees what would happen in the alternative, in which (four year) deadlines pass, but no vote is held at all in Northern Ireland on the matter?

Answer 1

The EU commission website has the full text, but I think in relation to the exact nature of this question, as to why the EU would agree to this being dependent on a parliament that may not meet, it is because if Stormont does not meet, then the NI in EU customs situation will not lapse.

Article 18:4

Where the process referred to in paragraph 1 (NI Consent Vote) has been undertaken and a decision has been reached in accordance with paragraph 2 (Decision required based on GFA), and the United Kingdom notifies the Union that the outcome of the process referred to in paragraph 1 is not a decision that the Articles of this Protocol referred to in that paragraph should continue...

Bold brackets are my additions.

So Article 18 : 4 states that a vote must be held, it must meet the GFA requirement (which in this case I think is a majority overall and a majority of both communities) and it must be a vote to not continue to apply this protocol.

So the EU have agreed it even if the NI assembly doesn't meet, because if the NI assembly doesn't meet the protocol of NI in EU will continue to apply indefinitely.

Answer 2

The previous rejection was because the requirement for a supermajority would have give the DUP an effective veto. If the DUP vetoed the arrangement it would open up the Irish border problem again, with no backstop to protect it.

With the current agreement only a simple majority is required to keep Northern Ireland under EU rules and thus with a border down the Irish Sea with the UK rather than with Ireland. Since the majority of members of the NI Assembly support it and would only get rid of it if there was some workable solution to the border problem the EU is willing to accept that.

Realistically there would probably be a "border poll", i.e. a vote on re-unifying Ireland, before a majority of the NI Assembly agreed to end the arrangement set out in the deal. That's partly why the DUP has already rejected it - having a border with the UK but not Ireland is only likely to push NI towards reunification.

Answer 3

The BBC now has an article that translates the legalese, and it is confirming what Jonitia said:

Because Northern Ireland will be set apart from the rest of the UK when it comes to customs and other EU rules, the deal gives its assembly a chance to vote on these provisions.

After four years, Northern Ireland will have the opportunity to vote on customs and state aid rules.

If the Northern Irish Assembly votes against them, they would lose force two years later during which time the "joint committee" would make recommendations to the UK and EU on "necessary measures".

If the Assembly accepts the continuing provisions by a simple majority, they will then apply for another four years. If the deal has "cross-community support" then they will apply for eight years, or until a new agreement on the future relationship is reached if that comes sooner.

The deal defines cross-community support as at least 51% each of unionist and nationalist Assembly members voting in favour, or at least 40% of members from each designation if in total at least 60% of members have voted in favour.

Basically the old UK proposal that "if consent is not secured, the agreements will lapse" has been replaced with the opposite default, i.e. the agreement continues unless there's an explicit vote to "NIexit" Northern Ireland from it. So there's little wonder why the DUP doesn't like Johnson's [latest] deal.