The right of local Northern Ireland politicians to block new EU laws under the Brexit deal just announced by Rishi Sunak and the European Commission president can only be used in exceptional circumstances, it has emerged.
How the so-called Stormont brake can be used is just one of four big questions about the revised Northern Ireland protocol pact, known as the Windsor framework.
How can the Stormont brake be used?
The prime minister and Ursula von der Leyen have been widely commended for the imaginative mechanism that allows local politicians in Northern Ireland to block any new EU laws coming into force in the region, thereby addressing concerns over the country being a rule taker rather than rule maker.
But on closer scrutiny the conditions for its application are so strict it will not give the Democratic Unionist party or any other a carte blanche to block mountains of legislation they do not like, say experts.
The emergency brake is modelled on the “petition of concern” mechanism in the Good Friday agreement, which allows legislation to be halted if 30 members of the legislative assembly (MLAs) from two parties oppose it.
The Windsor version goes further, allowing 30 MLAs to object, regardless of political affiliation. If they pull the emergency cord, the new EU law is automatically disapplied.
“The Stormont brake was good, better than anyone could have thought,” says Catherine Barnard, a professor of EU law at the University of Cambridge. “It was a surprise to see it there but if you look under the bonnet the conditions for its use are so strict it makes it virtually unusable.”
MLAs must demonstrate that their objection is not “trivial” and the new law will have a “significant impact” on people’s lives. Their decision must then be assessed by the UK-EU joint committee, a body set up under the withdrawal agreement to implement and enforce the post-Brexit regime.
In unprecedented powers, the UK would have an unequivocal veto – enabling the rule to be permanently disapplied. This decision does not need to be agreed by the joint committee.
According to the command paper: “It can then only be subsequently applied in Northern Ireland if the UK and EU both agree to that jointly in the joint committee”.
Disputes will be assessed by an arbitration panel of UK and EU judges without any oversight of the European court of justice.
But, as a quid pro quo, the EU retains rights to take remedial action if it disagrees with the UK government – putting the two sides back into trade war territory.
What happens if the DUP are not on board?
The government is intent on implementing the Windsor framework with or without DUP backing.
Government sources say the Stormont brake would not apply unless the Northern Ireland assembly has been restored but most of the remainder of the deal could be enacted.
The deal must be ratified on both sides of the Channel with a joint EU-UK committee meeting scheduled for March to start that process. At the same time, the UK government will start the process of putting the deal on the British statute books.
The government has yet to lay out the legislative process but there has been talk of the government using statutory instruments, which is feasible under the original European Union Withdrawal Act 2018.
What is the timeline for businesses?
Now that the deal has been unveiled, the government plans to phase in the measures over the coming year, in effect a transition period for industry.
Businesses will have to go through an official assessment for a trusted trader system, for instance, and will also need time to ramp up new labelling with “not for EU” stickers required on pallets or individual product packaging. For this they will be reimbursed by the government.
What about loose ends
The DUP MP Ian Paisley Jr raised objections over veterinary rules that require animal breeders who fail to sell their cattle at pedigree shows in Scotland to leave their animals, at their own cost, in the country for six months.
This is among the many loose ends not explicitly covered by the Windsor framework.
However, government sources have emphasised that unlike the protocol, which was a hard-stop fixed arrangement, the framework allows for a dynamic relationship between the UK and the EU with capacity for future updates.
