‘Stormont bridle’ in Northern Ireland business should be an instrument, not an ornament

The writer, attorney and commentator, is a contributing editor for the FT

The legal and political framework for the Northern Ireland trade deal announced in Windsor by the UK and the EU on Monday is no substitute for a blank slate. Instead, it fits and reworks the 1998 Good Friday Agreement and Northern Ireland’s protocol to the 2020 Brexit exit deal.

Indeed, the two sides expressly agreed to formally refer to the amended protocol as the Windsor Framework. This will not just be a snappy nickname, but a defined term.

One proposed major legal change is the “Stormont brake” for handling disputes. The existing protocol contains the provision in Article 16 that allows either side to take unilateral “safeguard” measures in the event of serious difficulties with the implementation of the protocol or when trade is diverted. But this was never fully utilized and the UK chose not to invoke it, seeking instead to introduce domestic legislation that would allow it to break the terms of the agreement.

A dispute resolution procedure that is not implemented when there is a dispute is not very useful and it was clear that a new system was needed. This is what the Windsor Framework will provide in general and what the Stormont Brake will provide in particular.

The curb only applies to proposed new EU legislation – it does not affect existing legislation in Northern Ireland. And nothing in it removes the jurisdiction of the European Court of Justice as the final arbiter of EU law in the province.

If the UK is concerned about new EU legislation affecting Northern Ireland, it can notify the EU. You will have to explain why you consider the legislation different from the previous one and also how “it would have a specific significant impact on the daily lives of communities in Northern Ireland in a way that is likely to persist”.

This last requirement is a high threshold – in the legal document it is referred to as an “emergency brake mechanism”. The UK will have to show not only a significant impact, but also the magnitude of that impact and its duration.

This is not just a new Article 16 threshold; the intended legal effect appears to be different. According to the current protocol, any precautionary measure can only be adopted when strictly necessary to remedy a situation and is subject to constant review and structured negotiations. Under this proposal, any new EU legislation that is the subject of a complaint must be challenged within two weeks of notification. And while Article 16 provides a regime for temporary remedies, the Stormont brake is actually a veto on the legislation as a whole.

Before operating the emergency brake, however, the UK must follow a specific procedure. And for that to happen, the Northern Ireland executive will first need to be restored and operational. Then 30 members of at least two parties out of the 90-member Northern Ireland Legislative Assembly (MLAs) must notify the UK government that they want the brake applied.

This can only be done in “the most exceptional circumstances and as a last resort, having used all other available mechanisms”. And, in addition to showing that impact requirements are met, MLAs must show that they have consulted business and civil society and participated in any prior consultation exercises undertaken by the EU.

All this means is that it will be difficult for the Stormont brake to be applied. Perhaps the arrangement is intended to be a reassuring ornament rather than a practical tool. But this was also once said about Article 50 of the Treaty on European Union, which the UK invoked to leave the EU.

It is important, therefore, that the mechanism be capable — and seen as capable — of being used effectively. The provision of safeguards in the existing protocol is so protected with qualifications that it was not. The concern should be that the proposed brake also ends up as a similar academic solution. If it is — or is seen to be — impossible to enforce, then the proposal does not solve anything. The new mechanism must be an instrument, not an ornament.

The EU will be reluctant to lower thresholds or make braking conditions less onerous. But it may have to move on, unless the unionist community in Northern Ireland can be convinced that this new mechanism will make a real difference.

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