David Phinnemore* (Queen’s University Belfast)

The return of Stormont means that members of the Northern Ireland Assembly (MLAs) can now get their voice heard directly on the operation of the Windsor Framework. 

A key moment will come in November/December when MLAs will hold a ‘Democratic Consent’ vote on whether core provisions of the Protocol/Windsor Framework governing the movement of goods should continue to apply. 

In the meantime, the newly established Windsor Framework Democratic Scrutiny Committee has begun its work scrutinizing changes to European Union (EU) laws that apply in Northern Ireland as well as engaging stakeholders on what these legislative changes mean for Northern Ireland.

And at the end of March, MLAs held their first debate on whether to support the addition of a new EU act – one on geographical indicators for craft products – to the Protocol/Windsor Framework. With unionist MLAs voting against, the requisite cross-community majority for the ‘applicability motion’ necessary for the United Kingdom (UK) government to support the addition was not achieved leaving the UK government with the decision of what to do next.

The mechanism that has attracted most attention, however, is the as yet untested ‘Stormont Brake’. This allows 30 MLAs to call on the UK government to disapply the application of amendments or replacements to certain EU laws applying in Northern Ireland. Under the Protocol/Windsor Framework, such changes apply automatically as part of the process of Northern Ireland’s dynamic regulatory alignment with the EU laws governing the free movement of goods in the EU internal market.

But the Stormont Brake is not there to be pulled as and when MLAs wish. It can only be used where the content or scope of the amended or replacement EU act differs significantly from that of the EU act it is amending or replacing, and where the impact of the amending or replacement act would have ‘a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist’. These are demanding criteria.

There are also significant procedural requirements that need to be met for the brake to be used lawfully. Moreover, if the brake is pulled, it is only the change that can be blocked, not the EU law that already applies.

All these mechanisms are supposed to help close the ‘democratic deficit’ resulting from the dynamic regulatory alignment of Northern Ireland with applicable EU law under the Protocol/Windsor Framework. The UK government’s view is that the applicability motion and Stormont Brake mechanisms deliver. 

In presenting the 2023 Windsor Framework, it claimed that they – and the Windsor Framework Democratic Scrutiny Committee – provided a ‘firm guarantee of democratic oversight, and a sovereign veto for the United Kingdom on damaging new goods rules’. 

More recently in its 2024 Safeguarding the Union deal with the DUP that led to the party’s return to Stormont, it maintained that the Stormont Brake was ‘a powerful democratic safeguard that provides powers to stop the application of [EU] single market rules’. 

Indeed, expectations are high that attempts will be made to use the Stormont Brake. Polling indicates that almost a third of voters want MLAs to seek to block updates to EU law applicable in Northern Ireland. Significantly they want MLAs to do so ‘irrespective of the political or practical consequences’. The majority (53%) disagree. The desire to see the Stormont Brake used is particularly high among voters identifying as ‘strongly unionist’ (78%). 

Such support for the Stormont Brake’s use generally reflects deep-seated opposition to the Protocol/Windsor Framework and especially the dynamic regulatory alignment it involves. However, it also tends to ignore the fact that a breach of that dynamic alignment process – even if lawful under the Stormont Brake – is unlikely to come without consequences. 

Not that this has been apparent from the presentation or much of the discussion of the Stormont Brake. Indeed, there has been barely any substantive discussion of what those consequences might be. 

At the time that the Windsor Framework was agreed, the UK Government was clear that:

‘[The] permanent disapplication of [EU] rules [via the Stormont Brake] would mean divergence between Northern Ireland and Ireland (and the broader EU), and… it would be a matter for the EU how to deal with the consequent impact on their [sic] market. Recognising this, the EU will have the ability to take ‘appropriate remedial measures’. 

A year later, in Safeguarding the Union, the UK government made no reference to potential consequences. Readers of this latest Command Paper could be excused for thinking that the Stormont Brake could be triggered without consequence. Not that the EU has made any public statements reminding the UK of what exactly the Protocol/Windsor Framework states if regulatory alignment is not maintained. 

Ultimately, if the EU believes that the non-application of a law means that the integrity of its internal market for goods is compromised, it may take ‘appropriate remedial measures’ (Article 13(4) Protocol/Windsor Framework). What forms such measures might take is not specified, although they could include reinforced market surveillance and restrictions being placed on NI producers’ access to the EU internal market, at least in the affected sector. This would have implications for NI traders. 

Might Northern Ireland find itself in such a situation? This will clearly depend on whether the Stormont Brake is ever activated. As yet, no attempt has been made to initiate the process, but it is still very much early days. 

If an attempt were made, the question arises as to whether there would be 30 MLAs in support. The first ‘applicability motion’ vote in March 2024 suggests there could be: 32 MLAs from three political parties – all unionist – plus two independents – both designated ‘unionists’ – voted against the new EU law on geographical indicators for craft products being added to the Protocol. 

For many opposing the applicability motion, their vote was as much a matter of principle – objecting to EU law applying in Northern Ireland – as it was on the practical implications of the new EU act being applied. The consequences of non-application and what the EU’s response might be were lesser considerations. 

If a majority does exist for the Stormont Brake to be activated, it is important to note that it will be for the UK government to determine whether the criteria have been met and decide that the relevant amending or replacement EU act will be disapplied. A reminder that MLAs voices may be heard on the Protocol/Windsor Framework but need not necessarily be decisive.

As far as the Democratic Consent vote towards later in 2024 is concerned, the voice of MLAs will definitely matter. If a democratic consent motion is not passed, then Articles 5-10 of the Protocol/Windsor Framework will cease to apply at the end of 2026. The effect would be the removal of arrangements that currently avoid a physical hardening of the border on the island of Ireland and provide NI producers with privileged access to the EU internal market for goods.

A motion should be carried. The majority of MLAs represent political parties that support the Protocol/Windsor Framework. And polling since the Windsor Framework was adopted in February 2023 shows a marked gap having emerged between voters in Northern Ireland who want MLAs to support democratic consent (56%) and those opposed (30%). 

If only a simple majority of MLAs vote for democratic consent, they will return to the question in 2028. In the interim the UK government will commission within a month of the vote an independent review into the functioning of the Protocol/Windsor Framework. If there is cross-community support for democratic consent – unlikely given current party political positions – then MLAs’ next potential vote would be in 2032. If there is no democratic consent, then the UK and the EU will be looking to adopt ‘necessary measures’ before the end of 2026 to avoid a hard border on the island of island. 

2024 is an important year for the restored NI Assembly regarding the Protocol/Windsor Framework. MLAs will have their first opportunity to vote on whether its core provisions continue to apply. A dedicated committee scrutinising its implementation has been established. And they now have a say on whether or not new EU acts should be added to the Protocol/Windsor Framework. Moreover, a minority of MLAs can ask the UK government to activate the Stormont Brake and disapply changes and replacements to EU acts applying in Northern Ireland. 

Such processes clearly allow MLAs’ voices to be heard. Whether they are sufficient to assuage concerns regarding the democratic legitimacy of the Protocol/Windsor Framework and to increase acceptance of its arrangements remains to be seen.

Professor David Phinnemore is currently coordinating a four-year ESRC-funded research project on Governance for ‘a place between’: the Multilevel Dynamics of Implementing the Protocol on Ireland/Northern Ireland [https://www.qub.ac.uk/sites/post-brexit-governance-ni/]. His wider research interests focus on European integration and in particular processes of EU treaty reform and their impact on the EU, the political dynamics underpinning EU enlargement and the EU’s relations with European non-member states.

The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.