Table of contents

1. What is the relationship between the draft regulations and the Windsor Framework?

The House of Lords is due to consider the draft Windsor Framework (Democratic Scrutiny) Regulations 2023 on 29 March 2023. The regulations are intended to implement the ‘Stormont brake’ mechanism in domestic law. The Stormont brake is one element of the Windsor Framework, an agreement reached between the UK and the EU on 27 February 2023 to make changes to the Northern Ireland Protocol. While this briefing focuses on the Stormont brake, the House of Commons Library briefing ‘Northern Ireland Protocol: The Windsor Framework’ contains a detailed analysis of the overall Windsor Framework agreement.

The Windsor Framework is a package of measures that will be implemented through a variety of means. The UK and the EU have agreed to make legally binding changes to the existing text of the protocol. The mechanism for making these changes is by a decision of the Withdrawal Agreement Joint Committee, the joint UK-EU body that oversees implementation of the Withdrawal Agreement, including the Northern Ireland Protocol. The Joint Committee decision is accompanied by a series of ‘soft law’ measures in the form of recommendations, joint UK-EU declarations and unilateral declarations to be made in the Joint Committee. On the EU side, the European Commission has put forward legislative proposals for amendments to EU law on sanitary and phytosanitary measures, human medicines and tariff rate quotas to implement changes agreed in the Windsor Framework. On the UK side, the government said in its command paper presenting the Windsor Framework that it would legislate to codify the Stormont brake in domestic law, amend the United Kingdom Internal Market Act 2020 and change VAT rates on certain goods in Northern Ireland.

The Joint Committee met on 24 March 2023 to formally adopt the decision and make the recommendations and declarations. This means that legally binding changes to the protocol, including some changes relating to the Stormont brake, are set to apply as of 25 March 2023, before the House of Lords debates the regulations. The House of Commons debated and approved the regulations on 22 March 2023, before the Joint Committee meeting took place.

When Prime Minister Rishi Sunak announced the Windsor Framework agreement in the House of Commons on 27 February 2023, he said that “Parliament will of course have its say and there will be a vote […] at the appropriate time in order to give people the time and space to consider the detail”. The prime minister’s official spokesperson later indicated the government considered the vote on the draft regulations as “essentially the vote on the entire deal”, arguing that the Stormont brake “is at the heart of the framework”. The spokesperson said the vote “honours the prime minister’s commitment to provide MPs with the opportunity to vote on the new arrangements”.

2. Why does the government say the Stormont brake is needed?

One of the criticisms of the Northern Ireland Protocol is that it has created a ‘democratic deficit’ because it requires certain EU laws to apply to Northern Ireland on an ongoing basis without UK or Northern Ireland politicians having a say over them.

EU law measures that continue to apply to Northern Ireland are listed in annexes to the protocol. This includes over 300 pieces of EU legislation, covering rights of individuals (annex 1), single market goods regulations and customs (annex 2), VAT and excise duties (annex 3), whole electricity markets (annex 4) and state aid (annex 5). If the EU amends or replaces any of these measures, under article 13(3) of the protocol, the changes apply to Northern Ireland automatically. This is known as dynamic alignment.

The government has said that in the first 18 months of the protocol’s operation, the EU informed the UK of over 4,000 measures it had adopted within the scope of the protocol. The government argued there was no mechanism to adapt these EU laws for the Northern Ireland context, and in some cases they uniquely disadvantaged Northern Ireland. It said this “undermine[d] political stability, with a fundamental sense of unfairness and feeling of separation from the rest of the UK in Northern Ireland”.

There are some mechanisms within the existing protocol that limit dynamic alignment and address the issue of democratic consent. Firstly, if the EU adopts a new law in an area that falls within the scope of the protocol but does not amend or replace an EU act already listed in an annex to the protocol, there is no automatic dynamic alignment. Instead, the procedure set out in article 13(4) of the protocol applies. Under this, the UK and the EU can discuss in the Joint Committee whether the new EU act should apply to Northern Ireland. The Joint Committee can decide to add the newly adopted EU act to the relevant annex to the protocol. If agreement cannot be reached, the Joint Committee can examine “all further possibilities to main the good functioning” of the protocol and take any necessary decision. The EU can take “appropriate remedial measures” if the Joint Committee cannot reach a decision within a reasonable time. The EU’s remedial measures could not take effect until at least six months had passed since the EU informed the UK that it had adopted a new act within the scope of the protocol, and not before the act is implemented within the EU.

Secondly, article 18 of the protocol contains a democratic consent mechanism that gives the Northern Ireland Assembly a vote on whether articles 5 to 10 of the protocol should continue to apply. These are the provisions covering customs, goods, VAT and excise, the single electricity market, and state aid. The first vote is due to take place by the end of 2024. If the Northern Ireland Assembly voted not to give consent, then articles 5 to 10 of the protocol would cease to apply from 31 December 2026. The protocol does not specify what would replace these parts of the protocol if that happened. If the Northern Ireland Assembly gave its consent to the continued application of the protocol by a simple majority of those present and voting, another vote would be held in four years’ time (by the end of 2028). If consent was given on a cross-community basis, the next vote would be held in eight years (by the end of 2032). This democratic consent mechanism will continue under the Windsor Framework.

However, in its command paper on the Windsor Framework, the government said that this existing democratic consent mechanism “is not sufficient in and of itself to tackle the democratic deficit challenge across Northern Ireland, or to provide an answer to how to build support that is as broad across the community as possible”. It said the Stormont brake established as part of the Windsor Framework would be a “powerful new democratic safeguard” to address these key challenges. It would “redress the democratic deficit” by “rewriting the dynamic alignment provision in article 13, so that it provides a firm guarantee of democratic oversight, and a sovereign veto for the United Kingdom on damaging new goods rules”.

3. How will the Stormont brake work?

The joint UK-EU political declaration on the Windsor Framework explains that the two sides have agreed on a “new emergency brake mechanism”, known as the Stormont brake. Its purpose is:

[…] to allow members of the Legislative Assembly in Northern Ireland to stop the application in Northern Ireland of amended or replacing EU legal provisions that may have a significant and lasting impact specific to the everyday lives of communities there. This mechanism would be triggered under specific circumstances in a very well-defined process. The government of the United Kingdom would operate the mechanism in a way that is consistent with the safeguards set out in the 1998 agreement [the Belfast (Good Friday) Agreement] and its subsequent implementation agreements.

The Stormont brake consists of:

The unilateral declaration sets out that the Stormont brake will only become operational once the Northern Ireland executive and Assembly have been restored. After that, members of the Northern Ireland Assembly (MLAs) could use the brake only if they were “individually and collectively seeking in good faith to fully operate the institutions”.

To trigger the brake, a minimum of 30 MLAs from at least two parties (excluding the speaker and deputy speakers) would need to notify the UK government they wanted to apply the brake. This threshold is based on the existing petition of concern mechanism in the Northern Ireland Assembly.

The notification would need to demonstrate in writing that it met a series of requirements:

  • The notification is being made “in the most exceptional circumstances and as a last resort, having used every other available mechanism”.
  • The conditions set out in the new article 13(3a) are both met. These are:
    • the content or scope of the amendment or replacement EU act “significantly differs” from the EU law it is amending or replacing
    • the application of the amendment or replacement EU act in Northern Ireland would “have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”
  • The MLAs have had “substantive discussion” with the UK government and the Northern Ireland executive about the amendment or replacement EU act, have consulted businesses, traders and civic society, and have made “all reasonable use” of consultation processes with the EU.

If the UK government was satisfied all the conditions were met, it would have to notify the EU through the Joint Committee, without delay, that it was triggering the brake.

Article 13(3a) sets out what would happen once the UK made the notification. The notification would have to be made within two months of the EU act’s publication. The amendment or replacement EU act would not apply in Northern Ireland with effect from two weeks after the UK had made the notification. The notification would have to include a detailed explanation of how the amendment or replacement EU act met the ‘significantly different’ and ‘significant impact’ conditions, and the procedural steps taken within the UK prior to the notification. The EU would have two weeks in which it could request further information about how the conditions were met, and the UK would have a further two weeks in which to respond. In that case, the non-application of the amendment or replacement EU act in Northern Ireland would take effect three days after the UK had provided the further explanation.

Academics Lisa Claire Whitten and Viviane Gravey from Queen’s University Belfast have raised the question of what law would apply in Northern Ireland after the Stormont brake had been applied. They suggest that it could be “problematic” if the unamended or non-updated “stagnant, legacy EU laws” continued to apply in Northern Ireland while the amended version applied in the EU, and when Great Britain could apply its own law. They argued this would risk placing Northern Ireland “in a position of dual divergence with its two largest external markets” and creating a lack of clarity about oversight and enforcement in Northern Ireland.

The unilateral declaration and article 13(3a) set out that once the Stormont brake had been applied to a replacement or amendment EU act (or a part thereof), that act would then be subject to the existing process in article 13(4) that currently applies only to new EU acts. In other words, the UK and the EU would discuss in the Joint Committee whether the replacement/amendment should apply to Northern Ireland or whether another solution could be found to maintain the “good functioning” of the Windsor Framework. If the Joint Committee could not reach a decision in “reasonable time”, the EU would be able to take “appropriate remedial measures”.

These “appropriate remedial measures” are not further defined. Steve Peers, professor of EU law at the University of Essex, has argued it is not clear whether “appropriateness” is an objective standard or a subjective assessment by the EU. However, he points out that “proportionality is a general principle of EU law, and the word ‘remedial’ suggests that the measures must be limited to remedying the effect of the use of the brake”.

The Stormont brake does not apply to all areas of EU law covered by the protocol. Article 13(3a) specifies that it will apply only to amendments/replacements of certain entries in the annexes, covering some EU customs rules, most of the EU goods rules, and reliefs from customs duty on personal property. As Steve Peers has pointed out, this means that the brake will not apply to other areas of EU law within the scope of the protocol, including:

  • some EU customs rules
  • some EU goods rules (covering fraud against the EU, trade statistics and various laws on international trade in goods)
  • rights of individuals
  • VAT and excise
  • wholesale electricity markets
  • state aid

In these areas, if the EU amended or replaced the EU acts referred to in the Windsor Framework version of the protocol, the changes would continue to apply automatically to Northern Ireland. If the EU proposed adding new EU laws in these areas to the protocol, the UK would continue to have a veto under article 13(4) (see section 2 of this briefing).

The UK and the EU have also agreed some points around arbitration should any disputes arise over the Stormont brake. In a joint declaration adopted by the Joint Committee, the two sides have agreed that for the UK to exercise the Stormont brake in good faith, it must fulfil all the requirements set out in the unilateral declaration (in other words, restoration of the devolved institutions, minimum thresholds of MLAs and the parties they represent, and written explanation by the MLAs that they have met the specified conditions). If an arbitration panel ruled that the UK had not acted in good faith in relation to triggering the Stormont brake, the UK would undertake to achieve “swift compliance” with the panel’s ruling. A recommendation adopted by the Joint Committee sets out that if an arbitration panel ruled the UK had failed to comply with the ‘significantly different’ and ‘significant impact’ conditions, the EU and the UK will agree no later than 30 days after the ruling that the amended/replacement EU act would apply from the first day of the second month after the ruling. (Further information about arbitration panels under the Withdrawal Agreement is available in the House of Commons Library briefing, ‘The UK-EU Withdrawal Agreement: dispute settlement and EU powers’, 2 October 2020).

The House of Commons European Scrutiny Committee identified the Stormont brake as one of its “significant areas of concern” about the Windsor Framework. It questioned whether the mechanism would “act effectively as a full stop on new EU law which amends or replaces EU law applicable in Northern Ireland”, or whether it “merely amounts to the insertion of an additional process into the current schema”. The committee also argued that the Commons should have “the opportunity for meaningful input into the shape of the deal” without the threat of “artificial government or EU deadlines” for it to be signed off in the Joint Committee.

The Institute for Government and UK in a Changing Europe have both published flowcharts that set out how the steps in the Stormont brake would work.

4. What would the draft regulations do?

The government said in its command paper on the Windsor Framework that it would legislate to codify protections around the Stormont brake in domestic law. The Windsor Framework (Democratic Scrutiny) Regulations 2023 are intended to fulfil this commitment.

The draft regulations would insert a new schedule into the Northern Ireland Act 1998, entitled ‘EU withdrawal: Windsor Framework democratic scrutiny’. This schedule would establish:

  • a new committee of the Northern Ireland Assembly, the Windsor Framework Democratic Scrutiny Committee
  • a procedure for MLAs to initiate the Stormont brake
  • a duty on the UK government to trigger the Stormont brake when a notification by MLAs meets the conditions set out in the Windsor Framework
  • a duty on the government to veto the application of a rule under the article 13(4) process unless there was cross-community support for its application, or unless there were exceptional circumstances

Arrangements for the Windsor Framework Democratic Scrutiny Committee are set out in part 2 of the new schedule. The committee would support MLAs in considering whether to seek to use the Stormont brake. Its focus would be on new or amended EU law that is relevant to either article 13(3a) or 13(4) of the Windsor Framework. The regulations include provision for the government to notify the committee when new or replacement acts have been proposed by the European Commission or published by the EU. The committee could undertake inquiries, publish reports and carry out engagement work. The government has stated in the explanatory memorandum accompanying the regulations that the committee’s engagement functions would support the engagement requirements set out in the unilateral declaration. It also stated that any use of the Stormont brake would ordinarily take place after the committee had conducted an inquiry, rather than pre-empting it, but this would not prevent MLAs drawing on other sources when deciding whether to use the brake.

Part 3 of the new schedule would set out in domestic law the procedure for MLAs to trigger the Stormont brake. This includes the requirement that a minimum of 30 MLAs from at least two parties (not including the speaker or deputy speakers) would be needed, and the timescales within which the MLAs would need to notify the secretary of state that they wanted to trigger the brake.

Paragraph 14 would oblige the secretary of state to accept any notification if they considered it met the relevant requirements in the regulations and the Windsor Framework. When deciding whether to accept a notification, the secretary of state could not take account of the possibility that the EU might take remedial measures in accordance with article 13(4).

If the secretary of state accepted a notification from a group of MLAs that they wanted to trigger the brake, the UK government would then be obliged to notify the EU of this, in accordance with the Windsor Framework (paragraph 15). If the secretary of state decided not to accept a notification, they would have to provide written reasons to the speaker of the Northern Ireland Assembly setting out why they considered the relevant conditions for triggering the Stormont brake had not been met.

Part 4 of the new schedule would prevent the UK from agreeing in the Joint Committee to the application to Northern Ireland of a rule under the article 13(4) process unless there was cross-community support for its application, or unless there were exceptional circumstances. This would apply to both:

  • New EU acts within the scope of the protocol/Windsor Framework. The UK has always had the ability under article 13(4) not to agree to these applying to Northern Ireland, but there has not previously been a statutory process that determines the position the UK will take in the Joint Committee.
  • Amendments/replacement EU acts to which the Stormont brake has been applied.

Part 4 sets out how the Assembly could give consent for the EU act to apply to Northern Ireland by passing an ‘applicability motion’. It sets out the procedural rules and timings that would apply to tabling such a motion. An applicability motion could only be passed with cross-community support. This would have the same meaning as elsewhere in the Northern Ireland Act 1998, therefore requiring:

  • the support of a majority of the MLAs voting, a majority of the designated nationalists voting and majority of the designated unionists voting; or
  • the support of 60% of the MLAs voting, 40% of the designated nationalists voting and 40% of the designated unionists voting.

However, the regulations would allow the UK government to agree in the Joint Committee to the application of an EU act under article 13(4) without a cross-community vote in favour, if the government considered that either:

  • There are exceptional circumstances that justify doing so. This includes circumstances in which the Assembly or the executive are not fully functioning. The explanatory memorandum states that this would ensure the absence of functioning institutions does not preclude the government’s ability to make decisions under article 13(4). The memorandum states that “exceptional circumstances” is not intended to cover “ordinary political or policy preferences”.
  • The new EU act would not create a new regulatory border between Great Britain and Northern Ireland. A “new regulatory border” would be defined as regulatory requirements relating to the movement of goods that would materially divert trade or materially impair the free flow of goods.

If the government intended to agree in the Joint Committee to the application of an EU act in either of these scenarios, a minister would first have to make a statement in Parliament explaining why they believed there were exceptional circumstance or that no new regulatory border would be created.

The government laid a draft of the regulations before Parliament on 20 March 2023. They cannot come into force without the approval of both Houses of Parliament. The regulations are being made using a power in the European Union (Withdrawal) Act 2018 that allows the government to make regulations “for the purposes of dealing with matters arising out of, or related to the protocol”. This is a Henry VIII power, meaning that it can be used to make secondary legislation that amends primary legislation.

The House of Lords Secondary Legislation Scrutiny Committee (SLSC) drew the draft regulations to the special attention of the House, on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House. The SLSC noted there were political concerns about the Stormont brake and its potential implications for Northern Ireland and the UK, but it did not comment on these issues. However, it did comment on the length of time between the laying of the draft regulations (20 March 2023) and the debate in both Houses (22 March 2023 in the Commons and 29 March 2023 in the Lords). The committee regretted that “this urgency has reduced the time available to the House to scrutinise this instrument, compared to the time usually available”. It hoped that further legislation to implement other aspects of the Windsor Framework would “adhere to the usual timescales and scrutiny arrangements”.

5. What did the House of Commons say about the draft regulations?

The House of Commons approved the draft regulations on 22 March 2023 by 515 votes to 29, a majority of 486. Six DUP MPs, 22 Conservatives and one independent voted against them.

Chris Heaton-Harris, secretary of state for Northern Ireland, said the Stormont brake was “at the heart of the Windsor Framework”. He also said it was one of the most significant changes to the protocol that the prime minister had secured. He characterised the benefits of the Stormont brake as follows:

It addresses the democratic deficit, restores the balance of the Belfast/Good Friday Agreement, and ends the prospect of dynamic alignment. It restores practical sovereignty to the United Kingdom as a whole, and to the people of Northern Ireland in particular.

Addressing possible criticisms of the Stormont brake, Mr Heaton-Harris said it did not give MLAs merely a consultative role, but “a robust power” to stop the application of amended EU rules. He said neither the UK nor the EU could override this provided the conditions in the Windsor Framework were met. He argued the regulations made it clear the government had no discretion to ignore the brake once MLAs had made a valid notification. He said the regulations also made it clear ministers would be legally prohibited from accepting an amended or new EU law that created a regulatory border between Northern Ireland and Great Britain, except in exceptional circumstances, the threshold for which was “unbelievably high”. He said it was “one of the strongest statutory constraints on the exercise of ministerial functions under a treaty ever codified in our domestic law”. He believed the regulations could “scarcely […] make clearer” that “the overwhelming presumption is that, unless the Assembly says yes, the government must say no”. Finally, he said if the EU considered the UK had improperly pulled the brake, it could initiate a dispute only after the rules had been disapplied in Northern Ireland and it would be for an arbitration panel, not the Court of Justice of the European Union, to resolve the dispute.

Mr Heaton-Harris argued that the regulations “make the case for functioning devolved institutions in Northern Ireland even more compelling”, as the Stormont brake would only become operable once the institutions were restored. He said the continued absence of functioning devolved institutions would “not only deny them the basic right to an effective, stable government, but will deny them full democratic input into the laws that apply to Northern Ireland”.

Peter Kyle, shadow secretary of state for Northern Ireland, said Labour would honour the pledge made by party leader Keir Starmer in January 2023 to support a deal reached between the UK and the EU. On the Stormont brake in particular, he declared it was “impossible to argue that this is not an improvement on the current situation”. He recognised there were concerns about how the brake would work in practice, but he suggested “the best way of stress-testing it is through experience, and we can get that experience only by restoring Stormont”.

Sir Jeffrey Donaldson, leader of the DUP, said that “improvements have undoubtedly been made in the Windsor Framework”. However, he argued it did not fully address the “fundamental problem of the continued application of EU law for the manufacturing of all goods in Northern Ireland”. He said the DUP wanted to see a solution where UK law and standards applied to goods manufactured in Northern Ireland if they were staying within the UK. He said that, unlike the Northern Ireland Protocol Bill, the Windsor Framework would not deliver this. He also said the Windsor Framework would not address the “real potential for divergence between EU laws that apply in Northern Ireland and UK law that apply in Great Britain when the UK decides to change regulations that were formerly EU regulations”.

Sir Jeffrey said the Stormont brake addressed the democratic deficit “to an extent”, but it would not apply to existing EU laws that already apply to Northern Ireland. He was also concerned that the EU could take “retaliatory action” if the UK vetoed the application of a new EU law. He feared this could “include the suspension of arrangements in the green lane [a route for goods coming from Great Britain destined to say in Northern Ireland, which would be subject to fewer checks and controls], which would impact our ability to bring goods from Great Britain to Northern Ireland”. He argued it was “wrong for the EU to be able to intervene at that level in the free flow of goods from one part of the United Kingdom to the other”.

Sir Jeffrey said that until a solution was reached that ensured the application of EU law “does not impede our ability to trade with the rest of our own country in the internal market of our own country”, he could not give the government a political commitment to restore the devolved institutions.

Stephen Farry (Alliance MP for North Down) spoke briefly to say he was treating the vote on the draft regulations as a recognition of the wider Windsor Framework package and would therefore vote with the government. Ahead of the debate, Mr Farry had said the Windsor Framework was not perfect but was “a significant upgrade from the original protocol”. However, he said Alliance had some reservations about the Stormont brake, “especially concerning the stability of the Assembly and uncertainty for businesses regarding the applicability of updated or new EU law”. At the same time, he said Alliance recognised there were “significant safeguards in place” and the circumstances in which the UK could block something “should be very limited”.

Colum Eastwood (SDLP MP for Foyle) said his party did not like the Stormont brake for a number of reasons. He argued it “damages and clouds the investor proposition”, implying that having a veto might create uncertainty about Northern Ireland’s continued dual market access. He regretted that the brake offered no specific role for the Northern Ireland Human Rights Commission or the Equality Commission for Northern Ireland. He expressed concern that the brake could be pulled before the new committee had finished its scrutiny of an EU measure. Finally, he said it was “a bad idea to give the DUP a veto over anything”. However, he said he would vote in favour of the regulations because the government had indicated that the vote was a vote on the whole framework.

Sir William Cash (Conservative MP for Stone), chair of the House of Commons European Scrutiny Committee, set out his objection to the continued application of areas of EU law in Northern Ireland under the Windsor Framework. He suggested the EU would be able to “get round” the Stormont brake and could apply “retaliatory measures”.  He also expressed regrets that the government had not allowed “proper time to discuss alternative legal arguments” about the Windsor Framework and had “rushed” the approval procedures for the regulations.

6. What have other Northern Ireland political parties said?

Michelle O’Neill, Sinn Féin’s vice president, said the Windsor Framework “mitigates against the worst impacts of Brexit” on the island of Ireland and would give Northern Ireland “a huge competitive advantage as a gateway to Europe for the sale of goods to two of the world’s largest markets unimpeded”. She said the onus was on “the British and Irish governments and all parties—not least the DUP—to now get Stormont moving”. She argued that blocking the formation of an executive would “only deepen the chaos caused by Brexit and discourage international investors”.

Doug Beattie, leader of the Ulster Unionist Party, said his party saw the Windsor Framework as “a stepping stone towards achieving a lasting solution to the many issues and challenges with our post-Brexit trading relationship with both Great Britain and the European Union”. He believed the Stormont brake would offer Northern Ireland politicians “a unique say” in EU laws, but he also cautioned that “important points of legal and technical clarification still remain outstanding”. He noted that without a functioning devolved government, EU law would automatically apply without any input from Northern Ireland.

Jim Allister, leader of the Traditional Unionist Voice, said if the House of Commons voted in favour of the regulations, it “changes nothing in terms of the unacceptability of the deceptive Windsor Framework”. He argued that unionists should not return to Stormont to “implement the very protocol unionist leaders solemnly pledged to unalterably oppose”.

7. Read more

The House of Lords Protocol on Ireland/Northern Ireland Sub-Committee launched an inquiry into the Windsor Framework, including the operation of the Stormont brake, on 17 March 2023.

Cover image by maddock1238 on Pixabay.