Stormont brake
An emergency brake won’t stop a train unless it’s moving. And the Stormont brake in the new Windsor framework won’t have any effect until the Northern Ireland legislative assembly gets going again.
Will the prospect of blocking new EU legislation encourage the Democratic Unionist Party to take its place in the Northern Ireland executive? We shall see. What’s clear, though, is that it will take 30 members of the legislative assembly to pull the European brake.
That has led to a great deal of interest in whether, as the legal commentator David Allen Green put it, the Stormont brake is an instrument or merely an ornament.
According to the European Commission, it can be used
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 can only be triggered under the most exceptional circumstances, as a matter of last resort, in a very well-defined process set out in a unilateral declaration by the UK.
Documents published by the EU have expanded on this summary. Under a proposed new paragraph 3a of article 13 of the Northern Ireland protocol, it will not be possible to pull the brake without:
the support of 30 members of the legislative assembly, drawn from at least two parties (excluding the speaker and deputy speakers)
a new or amended EU legal provision that that may have a significant and lasting impact, specific to the everyday lives of communities in Northern Ireland, in a way that is liable to persist
the most exceptional circumstances
a matter of last resort, having used every other mechanism
a very well-defined process set out in a declaration by the UK
The UK has already explained that
Once the UK notifies the EU that the brake has been pulled, the rule in question is suspended automatically from coming into effect. It can then be applied in Northern Ireland only with the agreement of both the UK and EU, sitting as members of a joint committee.
This would give the UK an unequivocal veto within the committee, enabling the rule to be permanently disapplied.
This new safeguard in the treaty is not subject to oversight by the EU Court of Justice. Any dispute on this issue would be resolved through subsequent independent arbitration under international law — not EU law.
Because the permanent disapplication of the rules would mean divergence between Northern Ireland and the EU — including, of course, Ireland — it would be for the EU to decide how to deal with the consequent impact on their market.
Recognising this, the EU will have the ability to take “appropriate remedial measures”.
If there is no other way of stopping a runaway train, then pulling on the brake handle with enough force will bring it to a halt.
But remember: there is always a penalty for misuse.