Stormont Brake: An advice and consent mechanism
While described by the Secretary of State, Chris Heaton-Harris MP, as a powerful “veto” which restores “practical sovereignty” over the application of certain EU laws in Northern Ireland, the Stormont Brake has also come in for heavy criticism over the complexity of its application.
Having been passed through the House of Commons with overwhelming support, the Stormont Brake, a core mechanism of the Windsor Framework, was designed to ease the “democratic deficit” central to the opposition of unionist parties in Northern Ireland.
In practice, the mechanism has the expressed purpose of ensuring that there is a transfer in sovereignty over EU law away from Brussels, with Stormont being granted the right to reject an EU law. In reality, however, the complexity of conditions for application subdue its potential impact.
The Stormont Brake allows a veto of sorts for some EU laws, with 30 MLAs – as long as they are from more than one party – being granted the power to petition a trigger of the Stormont Brake, notifying the UK Government of their objection to the amendment or replacement of certain EU laws which apply in Northern Ireland under the original Northern Ireland Protocol.
While applicable to laws which mainly relate to goods, the Stormont Brake does not cover amended or replaced laws concerning state aid, the Single Electricity Market, or most of the EU’s customs codes.
Given the numerical requirements for the mechanism to be enacted, it would not enable the DUP to use the Stormont Brake without the support of one of the other main parties, as even with the additional support of independent unionist Alex Easton MLA and the TUV’s Jim Allister MLA the DUP is three votes short of exercising its potential veto power.
Crucially, the Stormont Brake does not have to be enacted on a cross-community basis; it can be triggered by unionists alone, nationalists alone, or a minority of either ‘side’ with the support of parties designated as ‘other’.
Although the Assembly has been granted the power to oppose, the final decision over whether to apply the prospective EU law rests with the British Government, with the Stormont Brake essentially serving as an advice and consent mechanism. The overall process of triggering the Stormont Brake takes around two months.
MLAs must satisfy certain conditions, including that the amending or replacement EU law “significantly differs” in its content or scope from the original and would have a “significant impact specific to everyday life” of communities in Northern Ireland which is “liable to persist”.
If the British Government agrees to pass forward the result of a vote in the Assembly to the EU, the EU then can either accept the British Government’s opposition or else request a further explanation. The UK Government will then be given two weeks to provide another explanation which will then suspend the EU law from being applied in Northern Ireland.
The UK Government would do so by notifying the EU in writing via the Joint Committee that the Brake has been applied. At that point the relevant EU law would not apply in Northern Ireland. Even if the UK and EU were subsequently to agree (in the Joint Committee) that it should apply in Northern Ireland, it could only do so with cross-community assent in the Assembly, except in “exceptional” and other “highly limited” circumstances. There is an arbitration process if there is disagreement between the UK and EU regarding application of the brake.
A new body, the Joint Committee, made up of members of the UK Government and the EU, will then discuss the proposal, before a new vote in the Assembly requiring support on a cross-community basis. If the Assembly fails to do this, the EU will have the ability to take “appropriate remedial measures”.
For clarity, a cross-community vote in the event of the triggering of the Stormont Brake is one which commands the support of a majority of the Assembly, including a majority of both unionists and nationalists, or alternatively a vote which commands the support of 60 per cent of the members of the Assembly, inclusive of 40 per cent of nationalists and 40 per cent of unionists.
Additionally, given that the Executive is not currently functioning, in the event of an EU law being applied to Northern Ireland, there will be no mechanism to oppose the prospective EU law, as the British Government will not unilaterally veto an EU law being proposed for Northern Ireland.
The prospect of direct rule, which is a significant possibility given the ongoing political boycott of the institutions by the DUP, is not covered by the mechanism, nor is the other possibility of joint authority between the UK Government and the Republic, whether on a formal or informal basis.