John Bell, LLM (Queen Mary University of London)*
Introduction
In a welcome step, Stormont returned to work on 3 February 2024. This followed a deal between the UK and the DUP (“Safeguarding the Union”) on 31 January 2024 after the latter had previously walked out of power-sharing due to its objections to the Northern Ireland Protocol, now known as the Windsor Framework. One of the DUP’s objections to the former Northern Ireland Protocol was its perceived “democratic deficit” given the continued application in Northern Ireland of hundreds of pages of EU law. (The work of Stormont has continued despite the sudden resignation of DUP leader Jeffrey Donaldson on 29 March.) The power-sharing institutions of Stormont were part of the Belfast-Good Friday Agreement of 10 April 1998, which commemorates its 26th anniversary this week.
A key part of the much heralded Windsor Framework (not the UK-DUP deal, which did not amend a single word of the Windsor Framework) was to address “democratic deficit” concerns through new democratic consent mechanisms and the establishment of a new committee of the Northern Ireland Assembly—the Windsor Framework Democratic Scrutiny Committee (“WFDSC”). The WFDSC therefore has a key Brexit scrutiny role.
In this article, I will address the WFSDC’s remit and powers and then turn to consideration of its scrutiny work.
- The remit and powers of the WFSDC
To achieve alignment with the EU Single Market acquis, the Windsor Framework applies a multitude of EU law in Northern Ireland. These EU acts are listed primarily in Annex 2 (other Annexes concern EU acts on state aid and excise). Article 13(3) provides for amending and replacement EU acts to replace those in the relevant Annex. For new EU acts within the scope of the Windsor Framework, Article 13(4) creates a mechanism for the EU to inform the UK of the act’s adoption before it is added to the relevant Annex.
The WFSDC was established by regulation 2 of the Windsor Framework (Democratic Scrutiny) Regulations 2024, which entered into force on 2 February 2024. These Regulations insert a new Schedule 6B to the Northern Ireland Act 1998. Regulation 3 states that the purpose of the WFSDC is to “assist with the observation and implementation of Article 13(3a) and (4) [of the Windsor Framework].”
In other words, the WFSDC has a scrutiny role which complements the Windsor Framework democratic consent mechanisms of the Stormont Brake and the ‘applicability motion’ for new EU acts (both of which are out of the scope of this article).
Accordingly, the WFSDC’s functions include the “examination and consideration” of new EU acts and replacement EU acts; holding inquiries, publishing reports, and engaging with HM Government, NI Ministers, businesses, and civil society in relation to EU replacement acts; and “dealing with other matters (including legislative proposals which may become new EU acts or replacement EU acts) which [WFSDC] considers to be connected with its purpose or other functions.”
Notification under regulation 6
The catalyst for the WFSDC’s work is notification of an EU act by HM Government. The WFSDC is to be notified if a new EU act or replacement EU act is proposed by the European Commission (regulation 6(1)(a)) or where a replacement EU act has been published by the EU (regulation 6(1)(b)). Details of EU acts notified to the WFSDC can be accessed on the WFSDC webpage.
In a letter dated 2 February 2024, the Secretary of State for Northern Ireland stated that HMG intends to notify the WFSDC of relevant proposed new (amending) or replacement EU acts (regulation 6(1)(a)) “on a weekly basis” and “in the same way as the UK Parliament is informed.” The Secretary of State also stated HMG’s intention to notify the WFSDC of published (amending or) replacement EU acts within the purview of regulation 6(1)(b) “on a weekly basis.”
Following a regulation 6(1)(b) notification, the WFSDC must decide whether or not to hold an inquiry into the notified replacement EU act (regulation 8). In reaching its decision, the WFSDC must have regard to whether the notified act “significantly differs […] from the content or scope of the EU instrument which it amends or replaces” and “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist.” The WFSDC may also have regard to “other matters it considers appropriate.”
This is complemented by provision for the WFSDC to monitor the progress of an act notified pursuant to regulation 6(1)(a) and publish interim reports (regulation 7). The regulation 8 decision making process also applies to the continuing of any inquiry into a replacement EU act following a regulation 6(1)(a) notification at proposal stage and subject to the WFSDC’s monitoring power in regulation 7.
It is important to note that it is not the role of the WFSDC to determine whether or not an EU act should be included in the Windsor Framework. That is the role of the Assembly through the democratic consent mechanisms established by the Windsor Framework, which is separate from the scrutiny role of the WFDSC.
- The scrutiny work of the WFSDC
The WFSDC held its first meeting on 15 February 2024 and appears to regularly meet every Thursday at 10am. At the time of writing, the WFSDC has not opened any inquiries into EU acts notified to it.
As noted above, one of the key functions of the WFSDC is the “examination and consideration” of new EU acts and replacement EU acts. This is no mean feat—The Windsor Framework contains five annexes listing over 400 EU acts applicable in Northern Ireland. From animal disease control to toys, all of these acts have to be tracked by the Northern Ireland Civil Service (NICS).
On 22 February 2024, officials from the Executive Office and the Office of the Northern Ireland Executive in Brussels briefed the WFSDC on their work to support the WFSDC through knowledge of the EU legislative process and engagement with the EU institutions. Officials also noted the manpower and budgetary challenges of tracking EU legislative developments.
In its report ‘Brexit and the State’, UK in a Changing Europe stated that “The UK government is now committed to providing the Northern Ireland Assembly with advance notice of relevant EU legislative changes, which may take some of the load of the NICS but Stormont will have to conduct its own analysis of the changes.” This analysis falls to the WFDSC.
The proposed EU mercury Regulation
A current example of the WFSDC’s scrutiny role concerns the proposed EU Regulation to replace Regulation (EU) 2017/852 of the European Parliament and of the Council on mercury, which would ban the use of dental amalgam from 1 January 2025. As this proposed EU Regulation is listed in Annex 2 to the Windsor Framework, it will once adopted automatically apply in Northern Ireland as a replacement EU act.
In correspondence with the WFSDC dated 5 March 2024, the British Dental Association Northern Ireland (BDA) stated that the implications of the ban on dental amalgam in the proposed EU Regulation would be “immense for access to dental services” in Northern Ireland and that automatic application via Annex 2 poses a risk “[…] such that we simply cannot countenance a situation where the impacts could ever be substantively mitigated in such a short space of time […]”
As noted by the BDA, the proposed EU Regulation has not been notified to the WFSDC as it had not been established at the time of the proposed EU Regulation’s publication. The BDA stated their “firm belief” that the replacement EU act satisfies the criteria (regulation 8, see above) for an inquiry and asked the WFSDC whether it will initiate an inquiry, noting that it anticipates notification of the proposed EU Regulation under regulation 6(1)(b) once it has been published by the EU.
The European Parliament and Council of the EU reached provisional political agreement on the proposed EU Regulation on 8 February 2024. Subject to endorsement from COREPER and ENVI, the text will be formally adopted and published in the EU Official Journal. Despite the absence of notification, the WFSDC’s website indicates that the proposed EU regulation is “under review”. The BDA gave oral evidence to the WFSDC on 14 March 2024.
With much of the focus on democratic consent mechanisms established by the Windsor Framework, the WFDSC will play a more routine role in scrutinising proposed replacement and new EU acts. As demonstrated by the proposed EU mercury Regulation, this role is far from obscure and relates to EU legislation with real life consequences for the people of Northern Ireland as a direct result of the Windsor Framework.
Conclusion
7 years after the referendum, the Windsor Framework is a bespoke solution to a bespoke problem. It is a direct consequence of Brexit that hundreds of pages of EU law continue to apply in Northern Ireland and this arrangement speaks to the inevitable trade-offs which are brought more acutely into focus by the delicate politics of Northern Ireland.
In this vein, the establishment of the WFDSC is a welcome step. The WFDSC and the democratic consent mechanisms of the Windsor Framework directly address the “democratic deficit” arguments and enable scrutiny of an arrangement which can be seen through the positive lens of dual market access.
The new chapter in UK-EU relations heralded by the Windsor Framework and the welcome return of devolved government in Northern Ireland meet together in the scrutiny work of the WFDSC. For many years, we have asked what Brexit means for Northern Ireland. Every Thursday, we will see the answer played out in Stormont’s Committee Room 30.
*John Bell, LLM (Queen Mary University of London) is a Legal Assistant at the Financial Reporting Council and a former Schuman Trainee at the European Parliament. John is a regular contributor on Brexit and constitutional law matters. His views are solely his own.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.
Photo Credit – Northern Ireland Assembly