The EU and UK have agreed a new mechanism for post-Brexit trading rules in Northern Ireland that gives the Northern Ireland Assembly a say in new EU laws applying in the North.
Why has this been agreed?
When the UK’s departure from the EU came into effect in 2021, Northern Ireland was left under EU rules for goods and a trade border was established in the Irish Sea to avoid a politically divisive land border with the Republic, an EU member state. Unionists and the British Conservative government complained that the protocol left a “democratic deficit” – Northern Ireland would be subject to new and existing EU rules without having a say in influencing them.
On Monday, British prime minister Rishi Sunak said the new Windsor Framework would give the Northern Ireland Assembly a “clear process” to pull “an emergency brake” to stop any new EU laws or law changes that would have “significant and lasting effects on everyday lives”.
How will the Stormont Brake work?
It will allow 30 MLAs (out of the 90 who sit in the Assembly) from at least two parties to ask the UK government to apply an emergency brake that would block, or at least temporarily delay, a new EU law from applying in Northern Ireland.
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Could this effectively give unionists a veto on EU laws applying in Northern Ireland?
Yes. The 30 MLAs could come from two unionist parties so the brake does not require cross-community support. This is a variation on the controversial “petition of concern” mechanism that operates at Stormont where 30 MLAs sign the petition, but – unlike the brake – it requires, in a cross-community vote, a majority of unionists and a majority of nationalists to pass the Assembly.
The Democratic Unionist Party (DUP), the largest unionist party, has 25 seats at the currently stalled Stormont Assembly but there are 37 unionists in the parliament so the DUP could join forces with another unionist party to ask for the brake to be pulled.
Are there conditions attached before pulling the brake?
Yes, strict conditions. The 30 MLAs must show the request is being made “in the most exceptional circumstances and as a last resort, having used every other available mechanism.”
The handbrake cannot be pulled for trivial reasons; there must be something “significantly” different about a new EU law, whether in its content or scope, and MLAs will need to show that the rule has a “significant impact specific to everyday life that is liable to persist.”
The MLAs must have gone through a series of steps first before making the request to the UK government. They must have sought “prior substantive discussion” with the UK government and within the Northern Ireland Executive to “examine all possibilities” about the new EU law.
They must also taken steps to consult businesses, other traders and civic society affected by the new EU law and “made all reasonable use of applicable consultation processes” in relation to how the law affects Northern Ireland. The British government will determine whether the demanding criteria for request for the brake to be pulled have been met.
Once the UK notifies the EU that the brake has been triggered, the EU law is automatically suspended from coming into effect in Northern Ireland and it can only be applied if the UK and the EU both agree to that in their joint committee that oversees the working of the Brexit trade agreement.
A UK government document setting out the details of the deal says the mechanism “would give the UK an unequivocal veto – enabling the rule to be permanently disapplied – within the joint committee”.
How might the brake work in practice?
This is not clear right now. In theory unionists could seek to trigger the brake with every piece of new EU legislation – as, after all, they oppose the operation of any EU law in Northern Ireland – which could leave the mechanism unworkable or mired in legal challenges.
An EU source said that triggering the brake for each and every amended piece of EU legislation wouldn’t be appropriate under the terms of the Windsor Framework deal.
Can the European Court of Justice veto the veto in the brake?
Not according to the British government. The UK document says the “new safeguard” is “not subject to ECJ oversight and any dispute on this issue would be resolved through subsequent independent arbitration to international, not EU, law”. EU officials said it wouldn’t be appropriate for the ECJ to judge whether the brake had been used according to the agreed parameters, as its remit is the interpretation of EU law.
But how can the brake work if the Northern Ireland Assembly is not sitting?
Yes, the Stormont Brake requires the Stormont government to be operating as normal. The Windsor Framework says that the emergency brake mechanism will operate solely and exclusively after the Northern Ireland Executive has been restored and is operational with a First Minister and Deputy First Minister in position and the Assembly is in regular session.
The DUP have refused to form a new powersharing government unless there are significant changes to the protocol, suspending the Assembly for the past 10 months. Donaldson has said the party will “take our time” to come to a “collective decision” on the new agreement.
The brake could be viewed as a carrot to tempt the DUP to restore power sharing and get Northern Ireland’s political institutions up and running again given that it provides for a mechanism that could hand unionists a veto on the automatic roll-out of new EU goods laws applying in Northern Ireland.
