Double Direct Effect? The UK Supreme Court’s revisiting of the direct effect conditions in Dillon

 

 

Dr Eleni Frantziou, Associate Professor in Public Law and Human Rights, Durham Law School, and Dr Sylvia de Mars, Reader in Transnational Public Law, Newcastle Law School

 

Photo credit: Samuel Lennox, via Wikimedia Commons

 

Introduction

 

Is there anything left to say on the direct effect of EU law? Yes, according to the UK Supreme Court, which handed down its much-awaited judgment in Dillon et al on 7 May 2026. The UK reference above is not a typo: despite Brexit, aspects of the EU/UK Withdrawal Agreement (‘WA’) have direct effect under the conditions provided for in EU law, in line with Article 4 WA. In Dillon, the UK Supreme Court was asked to interpret whether one provision of this agreement – Article 2(1) of the Ireland/NI Protocol (‘Protocol’), which is itself a core part of the WA (Article 182 WA) – is directly effective and, if so, on what terms.

 

The case concerned the Legacy (Troubles and Reconciliation) Act 2023, which set out a broad range of immunities for serious crimes committed in Northern Ireland during the Troubles. The principal claimants were one direct victim and three relatives of victims killed in the conflict – a wife, mother and sister who, as O’Donoghue observes, were but minimally acknowledged by the UKSC. They challenged the immunities provisions of the Act under the ECHR and EU law.

 

In this post, we focus only on the EU law dimensions of the case and, particularly, on the question of direct effect. In our view, Dillon raises significant questions about the correct application of the direct effect conditions, the ultimate arbiter of which is the CJEU. In particular, we argue that the UKSC’s interpretation of direct effect in Dillon is inconsistent with EU law, because it creates an unprecedented requirement of ‘double direct effect’: it applies the direct effect conditions to both a provision of the Withdrawal Agreement/Protocol and to measures referenced in this provision.

 

Why was EU law still relevant in Dillon in 2026?

 

One of the most contentious aspects of the Withdrawal Agreement negotiations was the status of Northern Ireland. It is widely documented that EU membership was one of the principal catalysts for the Belfast/Good Friday Agreement (‘BGFA’) that officially marked the end of the Northern Ireland conflict known as ‘the Troubles’. As EU membership by both the UK and Ireland had ensured free movement between the Irish north and south, the creation of special arrangements that secured this after Brexit was a crucial aspect of the UK’s exit negotiations.

 

These special arrangements were embedded into the Ireland/NI Protocol (as of 2023 also known as the ‘Windsor Framework’ in the UK), which was appended to the Withdrawal Agreement as a core part of it dealing with a specific ‘withdrawal’ issue.  The Protocol provides for continued north/south cooperation, avoiding a hard border and protecting both trade and cross-border work. Importantly for the purposes of the Dillon case, the Protocol also notes in recital 7 of its Preamble that ‘Union law has provided a supporting framework for the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement’ (‘RSEO’) and includes a specific non-regression guarantee with respect to this part of the BGFA. To this end, Article 2(1) of the Protocol provides:

 

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the Belfast/Good Friday Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

 

It was this article of the Protocol that formed the basis of the EU law claim in Dillon. The claimants’ argument went as follows: since the UK had been subject to the Victims’ Rights Directive (‘VRD’) before Brexit and this had been implemented in NI through domestic measures, the immunities created by the Legacy Act reduced the level of protection of fundamental rights available during the UK’s membership of the EU, and were therefore in conflict with Article 2 of the NI Protocol. This claim was made possible by Article 4(1) WA, which states that the “Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States” and the test for individuals to rely on a provision of the Withdrawal Agreement before domestic courts is that such a provision should “meet the conditions for direct effect under Union law.”

 

In line with the widely known Van Gend en Loos formula, a provision of EU law has direct effect if it confers rights to individuals that are clear, precise, and unconditional, rather than being subject to the adoption of further measures by either Member States or the EU.  The wording of Article 2(1) of the Protocol prima facie meets these conditions with ease. The right conferred by Article 2(1) is to not have ‘rights, safeguards or equality of opportunity’ as set out in the BGFA and in Annex 1 of the Protocol diminished. This paragraph contains a ‘textbook’ negative obligation. It requires no further measures at all – the UK simply needs to refrain from introducing new measures that reduce the level of protection of EU fundamental rights as it stood on 31 December 2020.

 

The claimants consequently argued that, since Article 4 WA also provides for the Agreement to have primacy and, at paragraph 2, requires that domestic courts be capable of disapplying incompatible provisions, the immunity provisions of the Legacy Act had to be disapplied. Two courts in Northern Ireland had found for the claimants, disapplying the offending provisions – but the government challenged this on appeal to the UKSC. It argued that if Article 2 was to have direct effect, it could only do so by reference to obligations that were themselves clear, precise and unconditional.

 

The Supreme Court sided with the government. It found that Article 2 could not always have direct effect, but only under certain circumstances, namely when the measures cross-referenced in Article 2 were themselves directly effective.  It is worth setting out its reasoning in some detail.

 

The UKSC commences, at paragraph 112, by citing the so-called Demirel test.  Demirel is one of the early cases in which the CJEU considered whether provisions in bilateral agreements signed by the EU could have direct effect; and it found at paragraph 14 that:

 

…a provision in an agreement concluded by the European Union with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in

its implementation or effects, to the adoption of any subsequent measure... (emphasis added)

 

So far, so good.  While, as we discuss further below, the treatment of the Withdrawal Agreement (or Protocol) as part of ordinary EU external relations law is questionable, this does reflect the commonly used test for evaluating the direct effect of bilateral agreements involving the EU.

 

However, the UKSC proceeds with the following statement in paragraph 113:

 

The obligation imposed on the United Kingdom by article 2(1) of the Windsor

Framework relates to rights, safeguards or equality of opportunity “as set out in” the RSEO chapter. It is therefore necessary to consider whether, having regard to the wording and to the purpose and nature of the RSEO chapter and of article 2(1) of the Windsor Framework, those provisions read together impose a clear and precise obligation which satisfies the test for direct effect.

 

In our view, the words “therefore necessary” make a huge argumentative leap, hitherto unseen in any EU law treatment of direct effect. In this single short paragraph, the CJEU takes the Demirel test but applies it simultaneously to the Withdrawal Agreement and its provisions and the BGFA’s RSEO chapter’s provisions. In other words, the UKSC reasons that Article 2 of the Protocol cannot have direct effect as such: for it to be directly effective, anything it references must also be directly effective.  This leads to its even more confounding finding, which is – ultimately – that Article 2 of the Protocol sometimes has direct effect – but at other times it does not. This is because, according to the UKSC, it is impossible to identify a clear and precise obligation without reference to the RSEO chapter. As the UKSC puts it at paragraph 116, “[i]t is only in this way that the obligation not to diminish rights, safeguards or equality of opportunity acquires any content.”

 

This aspect of the ruling – which we dub ‘double direct effect’ –presents a deep challenge to settled understandings of the direct effect of EU law.

 

The fallacy of the UKSC’s direct effect

 

The UKSC’s ruling does not question the possibility of Article 2 of the Protocol to have direct effect, nor does it challenge the terms of direct effect. According to the Court, as per paragraph 112, the relevant conditions are the conditions set out in EU law. But the choice of EU law is already telling of the ruling’s direction and tone: rather than going straight for the Van Gend en Loos conditions, the Court refers to the Demirel test on the direct effect of international agreements.

 

While this choice is defensible to a degree as the WA is, after all, a bilateral agreement, the confidence with which the UKSC resorts to it is puzzling. Unlike association agreements, such as the one between the EU and Turkey at stake in Demirel, or even the UK/EU Trade and Cooperation Agreement, EU competence for which resides in external relations law (Article 217 TFEU), the Withdrawal Agreement is a very specific type of agreement. The competence to conclude it is found in the constitutional part of the Treaty on European Union – Article 50 TEU – and it is Article 50 (2) that sets out that the terms of withdrawal are to be negotiated in accordance with Article 218(3) TFEU. The Withdrawal Agreement is thus a category in its own right: it is not about a third state negotiating the terms of its association with the EU, however deep, but about a Member State negotiating its departure from the bloc in line with its own constitutional requirements, as set out in Article 50 TEU.  The exceptionality of the Withdrawal Agreement has been raised indirectly in litigation before the CJEU and, albeit that the Court has not had specific occasion to address what this means for direct effect, it has emphasised the significance of Article 50 TEU as the essential legal context for analysing the provisions of the Withdrawal Agreement (see, e.g., Préfet du Gers I, para 54). 

 

But even if we were to accept that the Withdrawal Agreement should be treated just like any other bilateral treaty, its own terms make its ‘intention’ clear, given the express wording of Article 4 WA on the application of the direct effect conditions – a very unusual stipulation that, to our mind, would not go unnoticed by the CJEU. In fact, as Gallo and Labus note, specific exclusions of direct effect are the norm in the external relations context, as is indeed the case for the TCA, Article 5 of which preclude direct reliance by individuals on its provisions. The choice of the Demirel conditions is, therefore, significant for at least two reasons: first, it is important symbolically. The UKSC makes a choice to treat the Withdrawal Agreement as one of many international agreements the UK has signed. This automatically limits any perceived onus on its part to read the ‘purpose and nature’ of the Withdrawal Agreement or the Protocol as resulting in different obligations than other international law. Second, the reliance on the Demirel test and its focus on not only the precision and unconditionality of the relevant provisions, but also the ‘purpose and nature’ of the agreement, enables the UKSC’s further findings about Article 2(1) WA. For, as already highlighted above, rather than treating ‘purpose and nature’ as pertaining to the Withdrawal Agreement and its provisions, the UKSC understands this test as applying to the RSEO section of the BGFA.

 

The ‘purpose and nature’ of the BGFA is summarised in paragraph 119 as “establishing peace in Northern Ireland after decades of sectarianism and civil conflict”. This reference appears to preclude a reading of the BGFA as aiming to secure cross-community equality in a broader sense, which makes reliance on Article 2 for the purposes of ensuring the non-diminution of EU fundamental rights altogether less likely. It will be far more difficult to link provisions in the RSEO chapter to EU law if it is essential to prove that their purpose and nature was ‘establishing peace’. This focus on the Demirel condition of the nature and purpose of the agreement thus appears to negate, at least to an extent, the practical relevance of Article 2 as a non-regression clause. Rather than protecting the ‘supporting framework’ of fundamental rights that membership of the EU meant for the peace process in tune with the Protocol’s Preamble, the interpretation could prove to be much narrower– a possibility that remains to be fleshed out further in subsequent case law.

 

Beyond the type of direct effect it chooses, though, the UKSC also commits, in our view, a fundamental, substantive error of EU law in its application of the direct effect conditions. This error rests on the finding that Article 2(1) is a provision that could sometimes, but not always, have direct effect – depending on what else it references. This position does not withstand scrutiny from the perspective of EU law. 

 

It is trite EU law, including under Demirel, that the direct effect conditions refer to ‘a provision’. Leaving the categorical exclusion of certain forms of direct effect for certain instruments (eg, the horizontal direct effect of directives), the CJEU has never held that a provision can both have and lack direct effect. The test is a clear binary: the provision either meets the conditions and it is directly effective or it does not, and it is not.

 

In this sense, it may have been more coherent for the UKSC to state that Article 2 is not directly effective at all. That, however, would have created the problem that some of the EU law explicitly referred to in the provision (the Equality directives) are par excellence directly effective obligations. Finding that Article 2(1) lacks direct effect altogether would have created a procedurally awkward situation, whereby the Annex to the Protocol has direct effect and supremacy in accordance with Article 4(1) WA, but its ‘activating’ provision does not. It was also clear that the provision was thought to have direct effect when negotiated and the UK government did not challenge the right of individuals to invoke it with respect to the annexed Directives; while the UKSC made it clear that UK government interpretations of its own commitments made when concluding the WA were of no help in determining of Art 2 of the Protocol was directly effective (see paragraphs 123-124 of the judgment), it seems to have wanted to avoid making the existence of that Annex 1 and, indeed, Article 2 itself wholly pointless from a litigation perspective. Hence, the UKSC resorts to a half-way house: if the provisions against which non-diminution is sought are themselves directly effective, then Article 2 can be invoked before domestic courts. If they are not, it cannot. Much like Schrödinger’s cat, then, direct effect is simultaneously alive and dead – it all depends on what Article 2 is referencing. 

 

This reasoning in our view misunderstands (though it does not reference) CJEU case law on the direct effect of provisions that also refer to other provisions, as well as the nature of the direct effect conditions as interpreted in EU law, more generally. For example, Charter provisions regularly give ‘specific expression’ to non-directly effective measures of directives (see, eg, the Grand Chamber rulings in Egenberger, Braathens,  KL v X). Unlike the approach espoused by the UKSC, it is not the non-directly effective measures detailing the core obligation that suddenly acquire direct effect. Rather, the presence of a directly effective measure, such as Art 47 CFR, makes the more specific obligations listed in the directives invocable in court, where they otherwise would not be. The core obligation is directly effective regardless of what it cross-references. The CJEU makes this very clear in Egenberger:

 

78. [L]ike Article 21 of the Charter, Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such [emphasis added].

 

In other words: it is the more general provision of primary law – Article 47 of the Charter – that gives rise to a clear, precise and unconditional obligation. This does not require a cross-reference to a separate provision that is also directly effective in order to be relied upon. Rather, the only effect of the directives in the above cases is to show that the scope of EU law – and hence the relevant provision of the Charter – was engaged.

 

We found similar reasoning in CJEU judgments that involve international agreements, where the cross-referencing to Annexes and Protocols is very common. In Sevince, for instance, concerning the EEC-Turkey Association Agreement, the CJEU found in paragraph 22 that provisions in several decisions adopted under this association agreement had direct effect – and that this

 

cannot be affected by the fact that [other provisions] provide that the procedures for applying the rights conferred onto Turkish workers are to be established under national rules. Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant to Turkish workers. (emphasis added) 

 

The analogy is, in our view, powerful: similarly to Article 2, this case concerned a standstill obligation that no further obstacles to the free movement of workers be imposed. Moreover, like Article 2, there was an expectation that national procedures would be introduced to ensure the effectiveness of this core obligation. The CJEU clearly distinguished this procedural conditionality from the primary negative duty. 

 

The idea that the ‘referred-to’ provisions do not themselves have to be directly effective for a primary provision to be directly effective is also expressly confirmed in the 2022 ruling in Deutsche Umwelthilfe, which concerned standing requirements in the implementation of the Aarhus Convention. The CJEU’s reasoning is worth citing in some detail:

 

66. [W]hile it is true that Article 9(3) of the Aarhus Convention does not have direct effect in EU law and cannot, therefore, be relied on, as such, in a dispute falling within the scope of EU law, in order to disapply a provision of national law which is contrary to it, the fact remains that, first, the primacy of international agreements concluded by the European Union requires that national law be interpreted, to the fullest extent possible, in accordance with the requirements of those agreements and, secondly, that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law...

          …

78. … the discretion conferred on the Member States to lay down rules governing the right to bring proceedings, referred to in [Article 9(3) of the Aarhus Convention], does not affect their obligation to ensure a right to an effective remedy enshrined in Article 47 of the Charter, as, moreover, also alluded to in Article 9(4) of the Aarhus Convention. Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such … Thus, that article may be relied on as a limit on the discretion left to the Member States under Article 9(3) of the Aarhus Convention.

 

This case is also analogous to what the UKSC had to consider in Dillon: a primary provision that set out a clear, precise and unconditional right (Article 47 of the Charter) – and further provisions, covering more specific situations in which such a right might apply, which are not directly effective (in Article 9(3) of the Aarhus Convention).  The CJEU had every opportunity to set out that both Article 9(3) of the Aarhus Convention and Article 47 of the Charter had to be directly effective, but did not do so – instead, it stressed that Article 47 sets out framework conditions for how a conditional, imprecise referred provision had to function.  This is in our view similar to the function that Article 2 of the Protocol carries out: it sets out the conditions that apply once the RSEO and Annex 1 directives need to be considered, in the form of setting a non-diminution test.

 

Finally, the UKSC’s understanding of the core negative obligation in Article 2 as vacuous without a contemporaneous assessment of the RSEO sets too high a threshold for clarity and precision. If this was how its reasoning worked, the CJEU would have denied the direct effect of most provisions of EU primary law. To take one iconic example, it clearly would have declined to accept the direct effect of Article 157 TFEU in Defrenne back in 1976; as Daniele Gallo puts it, “[t]he contents of the obligation of [what is now Article 157 TFEU] were considered sufficiently clear, to the extent that the Member States must ensure ‘the application of the principle that men and women should receive equal pay for equal work’, despite … that there was, at the time, relative uncertainty about the concept of ‘equal work’ as well as that of ‘work of equal value’.  (Gallo, OUP 2025, 83).

 

To summarise, the RSEO determines the scope of Article 2 and it is squarely for the Supreme Court to interpret what this means. As noted above, there may be disagreement about how narrowly the ambit of the RSEO was drawn in this ruling – disagreement which can be further discussed in the Specialised Committee on the Windsor Framework. Such disagreement, however, would concern the substantive question of diminution (i.e., was there a relevant RSEO right that has now been diminished?) – and not the relevant test for direct effect. As a matter of the direct effect conditions, there can be little doubt, based on CJEU authority on direct effect, that Article 2 can be invoked before domestic court. In turn, if disagreement arises about the direct effect conditions, the correct interpretation must be determined by the CJEU – a point to which we now turn, in concluding.

 

Is this the final word on the direct effect of Article 2 NIP?

 

Assuming that our analysis is correct, and that the application of the direct effect conditions in Dillon is inaccurate, can anything be done about it? The UKSC was not entitled to make a reference to the CJEU on the matter of direct effect, as this is not provided for under this part of the Protocol. While references are possible with regard to a limited number of other provisions, primarily relating to trade, they are not provided for in the context of the non-diminution guarantee. It is to be hoped, however, that the Joint Committee overseeing the WA will discuss these issues in its upcoming meeting, particularly given the significance of the direct effect question for ongoing litigation on Article 2 at lower levels and, more generally, for the very ability of the Dedicated Mechanism set up under the Protocol to contribute to the enforcement of the non-diminution guarantee through litigation.

 

Arguably, regardless of the outcome of the political discussion, a question should now be put to the CJEU about the correct application of the direct effect criteria by agreement of the parties. The Dillon case demonstrates the technical difficulties associated with ongoing Brexit litigation that involves EU law concepts without the possibility of interpretive clarity through the preliminary reference structure, and it is in nobody’s interest for different versions of a 60 year old test to apply in the EU itself and its closest trading partner. Ultimately, though, if no agreement is reached about what the correct interpretation of the direct effect conditions is in the context of Article 2 within the Joint Committee, an arbitration panel may be appointed to determine the issue. Its decision will be binding on both parties. Crucially, the arbitration panel would be required to make a reference to the CJEU to determine any issues of EU law before it reaches its decision. Undoubtedly, the concept of direct effect would be such an issue.

 

 

 

 

We’re all trying to find the Guy who did this … The Disapplication of the Illegal Migration Act in Northern Ireland

 

Professor Colin Murray, Newcastle Law School

Photo credit: Wknight94, via Wikimedia Commons

 

Introduction

The courtroom was anything but packed on a grey Monday morning in Belfast. There were no camera crews outside. And yet, for a small band of cognoscenti who gathered to hear Humphreys J’s decision, something significant was about to happen. The UK Government’s keystone migration legislation, the Illegal Migration Act 2023 (providing for the “outsourcing” of asylum claims to third countries), was about to be confronted with the fact that it had made extensive rights commitments specific to Northern Ireland within the UK-EU Withdrawal Agreement. Either these immigration measures were going to be found not to apply to Northern Ireland, or some violence was going to be inflicted upon the rights commitments made to Northern Ireland.

The momentousness of this moment should not have come as a surprise; the workings of Article 2 of the Windsor Framework were settled as far back as 2018, whereas other special post-Brexit provisions for Northern Ireland have been repeatedly redrawn. In 2021, its operation was described by the UK Government as “not controversial”, at a time when they were eager to see significant changes to other parts of the then Protocol. The significance of Article 2 has been highlighted many, many, many times on this blog. So how did the judgment in Re NIHRC’s Application sneak up on the UK Government?

Article 2

Article 2 of the Northern Ireland Protocol (as was) was a vital provision for the UK’s Brexit policy. It provides:

1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards.

Whereas trade elements related to Northern Ireland could be connected to the 1998 Agreement (better known as the Belfast or Good Friday Agreement) through the operation of cross-border bodies, the connection with regard to rights and equality law was direct. The 1998 Agreement set out a new basis for a post-conflict governance order in Northern Ireland based on the rights of everyone in the community, and in the years since the Agreement, extensive elements of those rights protections were grounded in EU law. The UK Government would have faced an uphill struggle to maintain that Brexit did not impact its commitment to the “letter and spirit” of the 1998 Agreement without providing specific rights and equality assurances in the Northern Ireland context.

In the SPUC case of 2023 the Northern Ireland Court of Appeal refined this commitment into a six stage test (para 54):

A right (or equality of opportunity protection) included in the relevant part of the Belfast/Good Friday 1998 Agreement is engaged.

That right was given effect (in whole or in part) in Northern Ireland, on or before 31 December 2020.

That Northern Ireland law was underpinned by EU law.

That underpinning has been removed, in whole or in part, following withdrawal from the EU.

This has resulted in a diminution in enjoyment of this right; and

This diminution would not have occurred had the UK remained in the EU.

Every element of this test must be fulfilled if a case based around non-diminution is to succeed.

The non-diminution commitment is not simply an international law obligation upon the UK; under section 7A of the European Union (Withdrawal) Act 2018, Article 2 appears to operate within the UK’s domestic jurisdictions with the same effect as EU law had prior to Brexit. In other words, reflecting the commitment in Article 4 of the Withdrawal Agreement to retaining the legal effect of EU law as regards the withdrawal agreement, this provision enables the courts to disapply statutes which conflict with its terms. And yet, in a bizarre hostage to fortune, when it was aware that legal challenges to the Illegal Migration Act under Article 2 were already underway, the UK Government issued assurances as part of the Safeguarding the Union Command Paper in January 2024 that ‘the Windsor Framework applies only in respect of the trade in goods’ (para 46). The new judgment undermines this claim (which, even at first glance, was always inaccurate).

The Illegal Migration Act

Section 2 of the Illegal Migration Act 2023 imposes a duty on the Home Secretary to make arrangements for the removal of the vast majority of asylum seekers who entered the UK after the Act was passed, including the sending of such individuals to Rwanda. Section 5 makes this duty applicable implicitly notwithstanding a range of international law, from the terms of the Refugee Convention to those of the European Convention on Human Rights (ECHR), which might ordinarily be asserted by the individual in question.

The 2023 Act is thus a difficult statute to effectively challenge on the basis of rights concerns. It excludes the use of the interpretive duty under section 3 of the Human Rights Act 1998 (ie the obligation to interpret domestic law compatibly with the ECHR ‘[s]o far as it is possible to do so’), leaving the domestic courts only able to declare the statute incompatible with the incorporated ECHR rights under section 4 of the Act (an outcome which does not impact the validity of the statute.) Although Humphreys J did find swathes of the Act incompatible with the ECHR rights as part of the Re NIHRC judgment, and therefore issued a declaration of incompatibility, this does not lead to any effective remedy.

The 2023 Act does not, however, negate the effect of claims made under Article 2 of the Windsor Framework insofar as it applies to Northern Ireland – a separate question from the compatibility of that Act with the Human Rights Act. And so the main arguments relating to the Act were thus channelled through the non-diminution commitment and into the way EU law still works in the Northern Ireland context, which held out the possibility of disapplication of the Illegal Migration Act.

The High Court Judgment

 

Disapplication of a statute is a significant outcome – as Humphreys J recognised in his decision “parliamentary sovereignty remains a fundamental tenet of our constitutional law” (para 37). But he also acknowledged that for as long as the UK was part of the EU, national law could not have legal effect insofar as it undermined EU law (the position reached in the Factortame case in the early 1990s). The issue was whether this approach continued to apply in the same way with regard to Article 2 of the Windsor Framework. For the UK Government Article 2 was simply an “an obligation of result”; it was not that the relevant elements of EU law continued to be “made applicable” in Northern Ireland law, but rather that Article 2 “set a benchmark by which rights can be measured and no diminution ensured” (para 49). The problem with this argument is that it flies in the face of the wording of Article 4 the Withdrawal Agreement and Parliament’s commitments under section 7A of the European Union (Withdrawal) Act; “its provisions … shall produce in the UK the same legal effects as those which they produce in EU Member States” (para 54). The Windsor Framework is an integral part of the Withdrawal Agreement and therefore “Factortame is still in play since the rights and obligations under the WA must prevail over any inconsistent domestic law” (para 57). There was nothing of legal significance to the UK Government’s supposed distinction between the provisions of the Agreement and EU law made applicable under it.  

The Government’s next ploy was to claim that the human rights obligations contained within the 1998 Agreement could not be applied to asylum seekers. In the Government’s view, that Agreement was all about “warring factions” in Northern Ireland, something that had no relevance to immigration policy. Remember that under the first limb of the SPUC test there must be a connection between the right being claimed and the 1998 Agreement (the whole point of the UK Government’s commitment was, after all, to insulate Brexit from claims that the 1998 Agreement was being undermined). Humprhreys J acknowledged that, in some cases, it will be a difficult task for the courts to establish the relevant connection:

Article 2 of the WF is an unusual provision in that it seeks to incorporate into law a chapter of the B-GFA which was never intended to create binding legal rights and obligations. It was the product of lengthy negotiations between political parties, the UK and Irish Governments, and contains statements of aspiration as well as legal right. A document renowned for its ‘constructive ambiguity’ does not lend itself easily to the tenets of statutory construction. (para 67)

This, however, is not one of those cases. The 1998 Agreement makes explicit commitments over the “civil rights … of everyone in the community”. A natural reading of these terms encompasses asylum seekers, and for Humphreys J, although the 1998 Agreement “did not expressly reference immigration or asylum, there is no basis to exclude such individuals from the wide compass of “everyone in the community” (para 69). The brilliance of this judgment is to directly face down the high-handed assumptions which underpinned the Government’s case. After decades of conflict, the 1998 Agreement made a commitment to ground the governance of Northern Ireland in the human rights of all; it did not treat human rights as being particularised to a sectarian context.

After these (always tenuous) arguments failed, the Government’s legal position collapsed. Most of the  public case around the Illegal Migration Act was that it was a great triumph of Brexit; the UK Government was able to put the Rwanda scheme in place because it could now depart from the requirements of the Qualification Directive, the Procedures Directive, the Dublin III Regulation and the Trafficking Directive. And so, time and again in the judgment, the Government accepted that the legislation involved a diminution of the protections mandated by these aspects of EU law; “the respondents accept that, in a category of case, the IMA, once in force, will result in a diminution of right” (para 116, see also para 133). For all the bluster that has accompanied the judgment, the UK Government knew (it did not need the court to rule) that it was acting to hollow out these EU law requirements. Indeed, it was able to do so, with regard to Great Britain, because of Brexit. It had not, however, given sufficient consideration to the implications of the specific commitments it had made in the Northern Ireland context.

It was thus straightforward for the Court to conclude that “there is a diminution of rights brought about by the enactment of the IMA” (para 117) and the remedy of disapplication of extensive provisions of the statute within the law of Northern Ireland flowed as a direct consequence of this. And who is responsible for this? Once again, Humphreys J is clear: “This outcome does not occur at the whim of the courts but represents the will of Parliament as articulated in the Withdrawal Act” (para 175).

Conclusion

The outcome in the High Court is therefore far from legally controversial. The UK Government’s efforts towards asserting that Article 2 was an obligation as to result, entirely within its keeping, was a desperate ploy, which would have denuded the entire provision of legal significance without any basis for doing so. Once this proposition was rejected, the Government’s case was lost, and it has found itself in a fluster ever since. Tom Pursglove went as far as to mislead Parliament in responding to an Urgent Question about the decision with an assertion that ‘our approach is compatible with international law’. It isn’t, and the UK Government accepted that it wasn’t when it enacted the legislation (it acknowledged, on introducing the legislation that, it could not issue a statement that the legislation was compatible with the ECHR). And yet it sticks doggedly to its claims that the court’s decision involved an unwarranted “expansion” of the 1998 Agreement.

The question remains, however, why this decision came as such a shock? Why were the media not primed and ready for a Northern-Ireland-shaped hole to be knocked in UK immigration policy? As so often in debates over Brexit, this surprise is largely the product of neglect of commitments made towards Northern Ireland. Article 2 was agreed as an essential part of closing off claims that Brexit undermined the rights elements of the 1998 Agreement, so many of which had come to be underpinned by EU law. But once this part of the deal was done, it quickly faded into the background.

The recurring crisis over trade policy consumed such attention that the UK Government lost sight of the fact that it had agreed to a higher baseline of rights commitments for Northern Ireland by comparison to the rest of the UK. When the law related to Northern Ireland is complex and unique it is all too easy for wishful thinking to become dominant in the corridors of Westminster and Whitehall. The Article 2 commitment doesn’t fit with the narrative of “take back control”, but the UK’s Conservative Government remains all too eager to present commitments it willingly made as hardships that have been inflicted upon it.       

 

The Dillon Judgment, Disapplication of Statutes and Article 2 of the Northern Ireland Protocol/Windsor Framework

 

 

Anurag Deb, PhD researcher, Queens University Belfast, and Colin Murray, Professor of Law, Newcastle Law School

Photo credit: Aaronward, via Wikicommons media

Extensive provisions of an Act of Parliament have been disapplied by a domestic court in the UK for the first time since Brexit. That is, in itself, a major development, and one which illustrates the power of the continuing connections between the UK and EU legal orders under the Withdrawal Agreement. It is an outcome which took many by surprise, even though we have argued at length that the UK Government has consistently failed to recognise the impact of Article 2 in rights cases. So here is the story of this provision of the Withdrawal Agreement, the first round of the Dillon case, and why understanding it will matter for many strands of the current government’s legislative agenda.

Article 2 of the Windsor Framework, as the UK Government insists on calling the entirety of what was the Northern Ireland Protocol (even though the Windsor Framework did nothing to alter this and many other provisions), is one of the great survivors of this most controversial element of the Brexit deal. Whereas other parts of the Brexit arrangements for Northern Ireland have been repeatedly recast, the wording of this provision has remained remarkably consistent since Theresa May announced her version of the Brexit deal in November 2018 (although it was Article 4 in that uncompleted version of the deal).

The provision was tied up relatively early in the process. Indeed, it suited the UK Government to be able to claim that rights in Northern Ireland were being protected as part of the Withdrawal Agreement, to enable them to avoid claims that Brexit was undermining the Belfast/Good Friday Agreement of 1998. Although the 1998 Agreement makes limited mention of the EU in general, it devotes an entire chapter to rights and equality issues, and EU law would play an increasing role with regard to these issues in the years after 1998.   

The UK Government made great play of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”) in all its parts’ (para 1). Even as it appeared ready to rip up large portions of the Protocol, in the summer of 2021, the Article 2 commitments continued to be presented as ‘not controversial’ (para 37). It might more accurately have said that these measures were not yet controversial, for no one had yet sought to use this provision to challenge the operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”, the UK Government loudly maintained that Article 2 was sacrosanct only because it had convinced itself that the domestic courts would not be able to make much use of it.

Little over a month ago, the Safeguarding the Union Command Paper all-but sought to write the rights provision out of the Windsor Framework (para 46):

The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and only applies in the respect of rights set out in the relevant chapter of the Belfast (Good Friday) Agreement and a diminution of those rights which arises as a result of the UK’s withdrawal from the EU.

Article 2 is a complex and detailed provision, by which (read alongside Article 13(3)) the UK commits that the law in Northern Ireland will mirror developments in EU law regarding the six equality directives listed in Annex 1 of the Protocol and, where other aspects of EU law protect aspects of the rights and equality arrangements of the relevant chapter of the 1998 Agreement, that there will be no diminution of such protections as a result of Brexit. But notwithstanding the complexity of these multi-speed provisions, by no construction can it be tenable to suggest that ‘the Windsor Framework applies only in respect of the trade in goods’.

The Dillon judgment marks the point at which the Government’s rhetoric is confronted by the reality of the UK’s Withdrawal Agreement obligations, and the extent to which they are incorporated into domestic law by the UK Parliament’s Withdrawal legislation. The case relates to the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, heralded by the UK Government as its vehicle for addressing the legal aftermath of the Northern Ireland conflict. This Act, in preventing the operation of civil and criminal justice mechanisms in cases relating to the conflict, providing for an alternate body for addressing these legacy cases (Independent Commission for Reconciliation and Information Recovery) and requiring this body to provide for immunity for those involved in causing harms during the conflict, has provoked widespread concern within and beyond Northern Ireland.

The Act has been the subject of challenges under the Human Rights Act 1998 and an inter-state action against the UK launched before the European Court of Human Rights by Ireland. In the interest of brevity, however, this post will explore only the challenges under the Protocol/Windsor Framework. This is not the first case to invoke Article 2 (see here and here for our analysis of earlier litigation to which the UK Government should have paid more attention), but this remains the most novel element of the litigation, testing the operation of this element of the Withdrawal Agreement. It is also offers the most powerful remedy directly available to those challenging the Act; disapplication of a statute to the extent that it conflicts with those elements of EU law which this provision preserves.

These requirements are explained by the operation of Article 4 of the Withdrawal Agreement, which spells out that elements of the Withdrawal Agreement and the EU law which continues to be operative within the UK as a result of that Agreement will continue to be protected by the same remedies as applicable to breaches of EU law by Member States. Section 7A of the European Union (Withdrawal Act) 2018 reflected this obligation within the UK’s domestic jurisdictions, as accepted by the UK Supreme Court in the Allister case (see here for analysis). For Mr Justice Colton, his task could thus be summarised remarkably easily; ‘any provisions of the 2023 Act which are in breach of the WF [Windsor Framework] should be disapplied’ (para 527). All he had to do, therefore, was assess whether there was a breach.

The rights of victims are a prominent element of the Rights, Safeguards and Equality of Opportunity chapter of the 1998 Agreement. These rights were, in part, given protection within Northern Ireland Law through the operation of the Victims’ Directive prior to Brexit and, insofar as this EU law is being implemented, through the operation of the EU Charter of Fundamental Rights with regard to its terms. The key provision of the Victims’ Directive is the guarantee in Article 11 that applicants must be able to review a decision not to prosecute, a right clearly abridged where immunity from prosecution is provided for under the Legacy Act. The breach of this provision alone was therefore sufficient to require the application of extensive elements of the Legacy Act (sections 7(3), 8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (para 608):

It is correct that article 11(1) and article 11(2) both permit procedural rules to be established by national law. However, the substantive entitlement embedded in article 11 is a matter for implementation only and may not be taken away by domestic law. The Directive pre-supposes the possibility of a prosecution. Any removal of this possibility is incompatible with the Directive.

The UK Government cannot claim to have been blindsided by this conclusion. They explicitly acknowledged the specific significance of the Victims’ Directive for the 1998 Agreement commitments in their 2020 Explainer on Article 2 (para 13). Moreover, in the context of queries over the application of Article 2 to immigration legislation, the UK Government insisted that in making provisions for victims the 1998 Agreement’s ‘drafters had in mind the victims of violence relating to the conflict in Northern Ireland’. Exposed by these very assertions, the Government hoped to browbeat the courts with a vociferous defence of the Legacy Act (going so far as to threaten consequences against Ireland for having the temerity to challenge immunity arrangements which raised such obvious rights issues).

The strange thing about the Dillon case, therefore, is not that the court disapplied swathes of the Legacy Act. This outcome is the direct consequence of the special rights protections that the UK agreed for Northern Ireland as part of the Withdrawal Agreement. The strange thing is that Mr Justice Colton arrived at this position so readily, in the face of such a determined efforts by the UK Government to obscure the extent of the rights obligations to which it had signed up. In the context of the UK’s full membership of the EEC and its successors, it took many years and many missteps to get to Judicial Committee of the House of Lords applying the remedy of disapplication of statutory provisions which were in conflict with EU law (or Community law, as it then was) in Factortame (No. 2). The Northern Ireland High Court was not distracted from recognising that these requirements remain the same within Northern Ireland’s post-Brexit legal framework when it comes to non-diminution of rights as a result of Brexit.

Indeed, the Court could not be so distracted. As we set out above, once Colton J determined that relevant sections of the Legacy Act had breached the Victims’ Directive, the judge had no discretion in the matter of disapplying the offending sections. This marks perhaps one of the strangest revelations to emerge from Brexit. Disapplication of inconsistent domestic law (of whatever provenance) as a remedy extends across much of the Withdrawal Agreement, covering any and every aspect of EU law which the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972 Accession Treaty by which the UK became part of the (then) EEC. This is unsurprising, considering that the primacy of Community law over domestic law was then a relatively recent judicial discovery. In the decades since then, however, the principle of EU law primacy and the requirement that inconsistent domestic laws be disapplied have become a firm and irrevocable reality. Small wonder then, that the UK Government accepted it as a price to pay for leaving Brussels’ orbit without jeopardising the 1998 Agreement – no matter how it has since spun the notion of “taking back control”.

Where the government might have its own interests in attempting to obscure the clarity of Article 2 and its attendant consequences, Dillon is by some measure a wake-up call for Westminster. The report of the Joint Committee on Human Rights’ scrutiny of the Bill which became the Legacy Act contained no reference to the Windsor Framework, notwithstanding consistent work by the statutory Human Rights and Equality Commissions in Northern Ireland (the NIHRC and ECNI) to highlight the issue. Dillon marks not only some of the most extensive disapplication of primary legislation ever enacted by Parliament, but also the first such outcome after Brexit. But Dillon is only the beginning. It will be followed in the weeks to come by a challenge to the Illegal Migration Act 2023 by the NIHRC, where there are clear arguments that relevant EU law has been neglected. The Government, and Westminster in general, have not woken up to the legal realities of the Brexit deal. Dillon makes clear that Parliament needs to pay far greater attention to the Windsor Framework; not as a legal curio that only occasionally escapes its provincial relevance, but as a powerful source of law which impacts law-making and laws which are intended to apply on a UK-wide basis.

  

Saying Nothing much at all, to General Acclaim – The Windsor Framework Relaunch

 

Colin Murray, Professor of Law, Newcastle Law School

Photo credit: en:User:Dom0803, via Wikimedia Commons

The landing space in which to do a deal on the Windsor Framework and make it stick, second time round, was remarkably small. The hard work of agreeing with the EU an approach to the rules covering trade in goods involving Northern Ireland which would produce as little friction as possible between different parts of the UK whilst simultaneously safeguarding the EU Single Market had been done almost 12 months ago. This, however, had not brought an end to the Democratic Unionist Party’s (DUP’s) boycott of the Northern Ireland Assembly.

This meant that the UK Government had appease multiple parties as it tried to persuade the DUP that the special post-Brexit trading arrangements for Northern Ireland are not a threat to its place in the UK. It had to be seen to provide further concessions to the DUP to finally get the deal over the line, while simultaneously not doing anything that could be regarded as threatening to the EU single market access for Northern Ireland goods provided by the reworked Protocol. Looming over this difficult balancing act was the threat of Brexit’s most ardent supporters within Rishi Sunak’s own party, who remained anxious lest the new deal introduce an enhanced degree of alignment between UK law and EU law post Brexit (as unhelpfully splashed in the Telegraph).

It turns out that Sunak’s formula for performing such a complex feat has been to announce as little as possible as loudly as possible (a masterclass in the Yes, Prime Minister, “radical tie for sober announcement” approach to policy). The new Command Paper is more than twice as long as the Windsor Framework Command Paper of February 2023 and proclaims just how much it matters (derivatives of “important” appear more than 50 times in the text, buttressed by nearly 30 uses of forms of “significant”). In appreciation of how well a ship building metaphor plays in Northern Ireland, commitments are “copper fastened” fully five times in the text.  

Announcing the new package in Parliament, the Northern Ireland Secretary declared that the Conservative Party was “the party of the Union”. You could be forgiven for thinking at this point that he had not read the document, for it is repeatedly damning of the Conservatives’ record in office. The Command Paper laments that failing to respond to Unionist concerns during negotiations over Brexit had “undermined economic and political stability in Northern Ireland” (para 16) and lamented that “The decision of the then Government to drop UK Internal Market Act clauses that would have protected NI-GB trade meant that unfettered access was placed in legal jeopardy” (para 27). If only Rishi Sunak could find out who was Chancellor of the Exchequer at the time of that decision.

Such is the DUP’s fury over the undermining of their position by the Conservatives, however, that the efforts to address these concerns are a necessary part of the package, notwithstanding the deflection of blame onto “the then Government”. What is perhaps more surprising are some of the tonal slips. There are repeated reference to “the sense” or “the perception” of the Union being under threat, so as to give Sunak’s government enough cover to claim to be addressing DUP concerns without ever acknowledging that it accepts them wholesale.

The most practically significant elements of the Command Paper relate to the expansion and rebranding of the “green lane” arrangements by which goods not generally believed to be at risk of onward movement into the EU as they are moved from Great Britain into Northern Ireland are subject to a minimal regime of checks based around specific risks. These risks are identified on the basis of analysis of real-time trade flow data shared with the EU.  It is important to note that these developments were to a large extent foreshadowed in the Windsor Framework, as the operation of data sharing and risk management processes became embedded. We are less than a year on from the acknowledgment that “[t]hese protections are also not static, with specific recognition in the agreement of the need to monitor, and as necessary adapt to, other changes in the future” (Windsor Framework Command Paper, 2023, para 50). That the rebranded internal market lane has been pledged to be operative “as soon as possible” speaks to the need for the EU to accept the adequacy of the processes in meeting the UK’s obligations.

Alongside these changes come an agreement with the EU, and a draft legal text, which when concluded at the next Joint Committee meeting will enable businesses operating in Northern Ireland to have full access to goods imported into the UK under the UK’s post-Brexit trade agreements. Much as hill farmers in Tyrone are unlikely to be jumping for joy at the prospect of direct competition from New Zealand lamb, this development does close off a complaint that Northern Ireland is experiencing post-Brexit trading rules in a way that is distinct from (and for some, disadvantageous to) the arrangements for the rest of the UK.

The DUP’s Gavin Robinson was eager to draw attention to this change:

“We were told that there would be no legal change to the Windsor framework or the EU text, yet—this was part of the process of ensuring trust and commitment—colleagues will have noticed the publication just yesterday of more than 60 pages of legislative changes to text on the European perspective”

It is accurate to state that Joint Committee decisions have legal status equal to Withdrawal Agreement provisions, but this is better regarded as an outworking of the Windsor Framework rather than a change to its core text. The Windsor Framework Command Paper made it clear that this development was a priority for the UK and the EU (see para 15), it is just one that has taken some months come to fruition given the complexity of the subject matter. As the new Command Paper notes, “There is always the potential for issues to emerge, and for challenges to need to be addressed. That capacity for ongoing dialogue, and for further development as may be required, is acknowledged in the Windsor Framework and its accompanying political declaration” (para 35). No one should be jumping up to say that Brexit is finally done.

One key take away, which extends from the Windsor Framework into the new Command Paper, is that the UK Government’s focus has been on trading rules and not goods production. The DUP’s Carla Lockhart put the issue directly to Chris Heaton-Harris in the Commons; “Will the Secretary of State therefore confirm whether Northern Ireland still remains under the EU’s single market laws for the production of food and agrifood?” This drew a terse response from the Secretary of State; “May I recommend that she re-reads the Windsor framework and indeed the Command Paper?” If anyone does reread the documents they will find very little relevant to goods production, and the UK Government might be better advised not to attempt to obscure the reality that their efforts have been focused on securing (dual) market access for Northern Ireland produced goods, not attempting to reset the rules governing goods production established under the Protocol.

In parts of the Paper, the UK Government become quite shrill in their insistence about the limitations to the operation of EU law in Northern Ireland after Brexit; “The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it” (para 46). It is impossible not to see this as predominantly for the consumption of its own MPs, because the discussion is couched entirely in terms of the Windsor Framework having no impact on the Rwanda policy.

This is a strange flex in the middle of a document about trade and Northern Ireland, and amounts to an attempt to deny any general significance to the “non-diminution” of rights commitment under Article 2. The problem for these claims is that the non-diminution commitment does encompass elements of EU law like the Trafficking Directive which means that different rights protections are at issue in Northern Ireland by comparison to the rest of the UK. The Command Paper, perhaps unsurprisingly, makes no mention of the fact that the Northern Ireland Human Rights Commission is currently engaged in litigation challenging the Illegal Migration Act 2023 for what it regards as breaches of Article 2.

The new legislative protections for Northern Ireland’s place in the Union is where the document goes full Houdini. In discussing the UK Supreme Court’s Allister judgment, the Command Paper is at pains to assert that the UK Parliament is fully sovereign and has “taken back control” post Brexit (“Importantly, the Supreme Court importantly recognised the UK’s sovereignty, exercised through Parliament”, at para 51, which I guess must mean it is doubly important). But just a few pages after this reminder that nothing is “permanent or irreversible” in this Government’s account of the UK Constitution, come the supposed guarantees of Northern Ireland’s place in the Union.

The most significant of these come in the form of statutory instruments (the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, the Windsor Framework (Internal Market and Unfettered Access) Regulations 2024 and the Windsor Framework (Marking of Retail Goods) Regulations 2024), which, promulgated under the European Union Withdrawal Act, allow for far ranging changes to primary legislation, including the Act itself. This allows these blocks of the deal to be put in place rapidly, and Stormont restored. It also, of course, allows for the whole process to be completed with cursory parliamentary scrutiny.

The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 begins with an amendment to section 38 of the European Union (Withdrawal Agreement) Act 2020, asserting that the Windsor Framework operates without prejudice to the “constitutional status of Northern Ireland as part of the United Kingdom”. This is constitutional surplusage. The whole point of the legislation is to implement an international agreement, and it is therefore to be read in light of that agreement. And Article 1 of the Northern Ireland Protocol, as remixed by the Windsor Framework, affirms that it operates “without prejudice” to Northern Ireland’s constitutional status.

This Statutory Instrument then takes an interesting turn. It inserts section 38A into the 2020 Act, which purports to ban any future UK Government from ratifying any new agreement with the European Union “that would create a new regulatory border between Great Britain and Northern Ireland”. Two observations can be made of this pledge. The first is that the horse has very much bolted. The Windsor Framework provides a continuing mechanism for new and amended EU law relating to trade in goods to apply to Northern Ireland (subject to the requirements of the Stormont veto, which UK Governments can ultimately override if they disagree with a use of it). There is thus no need for any new Agreement – a process of response to change in EU law is baked into the existing arrangements and this new stricture will not apply to it. Second, anyone who seeks to put much weight on this pledge was not paying attention to the UK Government’s explanation of parliamentary sovereignty just a few pages earlier. This commitment is a gimmick, not unlike the statutory “tax lock” once promised by David Cameron.

The Statutory Instrument then sets out an amendment to section 7A of the European Union (Withdrawal) Act 2018. This is the closest that the whole process comes to a live wire, because this provision is the connective tissue which allows EU law to have legal effect within the domestic legal order insofar as it gives effect to the Withdrawal Agreement (including the Protocol). Great play has been made of this amendment as the end to the “automatic” application of EU law in Northern Ireland. But that is not what this amendment does. A large body of EU rules applies because of the Withdrawal Agreement, although the amendment of some of these rules, or the addition of new EU measures, is subject under the Windsor Framework to the operation of the Stormont Brake.

This new provision simply makes that reality explicit in the statute. This perhaps has a clarificatory function, but it suffices once again to note that this is a statute implementing an international agreement and the operation of section 7A has been assumed to operate to take account of the working of the Stormont Brake since the Brake was introduced. It is worth noting explicitly that the obligation on the law of Northern Ireland to automatically track developments in the equality directives contained within Annex 1 of the Protocol, as modified by the Windsor Framework, remains in full effect as it is not subject to the Stormont Brake.

The Statutory Instrument then amends the 2018 Act to require a ministerial acknowledgement before the Parliament of whether a Bill affects trade between Northern Ireland and the rest of the UK. This has been likened to the process under the Human Rights Act by which ministers have to make a statement on the compliance of new legislation with human rights. And there is an irony to this present government lifting and repurposing such a provision. In this instance, however, the assessment does not have to be conducted before every piece of legislation, but only where ministers think there might be an issue. Plenty of scope exists for this element to be overlooked, and it has no legal impact on the operation of a statute in which it is not included. Very soon such ministerial statements will become background noise.

The last piece of legislative reform that I will address in this piece has also been accompanied by noisy speculation; the UK Government has promised to banish from the statute book any duty to have “due regard” to the all-island economy. This is very much in the weeds of Brexit, but when Theresa May was having difficulty securing the passage of the Withdrawal Agreement legislation she was obliged to concede the Patten amendment, which became section 10 of the European Union (Withdrawal) Act 2018. This was meant to restrict any ministerial attempts to use the wide-ranging powers of delegated legislation under the Act to ignore the UK’s commitments as part of the negotiating process made in the 2017 Joint Report. Ministers had to have “due regard” to maintaining regulatory alignment which supported the “all-island economy” in their use of these powers.

This phrase is a particular bugbear of Unionism, and the Command Paper makes great play of the dangers of “the divisive and misguided political notion of the ‘all-island economy’” (para 71), but it is a stretch to say it is still playing any part in informing government policy. For one thing, new powers to implement the Protocol were created in the 2020 Act, and it is arguable that the strictures imposed on the original powers in the 2018 Act do not apply to them. Second, read in context, the commitment in paragraph 49 of the 2017 Joint Report is about the backstop. A lot of water has passed under the bridge since then; it is not relevant to interpreting the UK’s subsequent (distinct) obligations. At best, this is the cleaning up of an outdated provision on the statute book. 

For all that attention devoted to minor or inconsequential issues, a remarkable aspect of the Command Paper is the extent to which it still leaves important issues unresolved. Paragraph 121 of the Paper makes an eye-catching commitment:

“The Government can also confirm that there will be no Border Control Post at Cairnryan. While goods that do not qualify for unfettered access to the UK’s internal market - such as goods moving from Ireland via Northern Ireland - will need to comply with the formalities required of any other third country goods movements, we will develop an approach to checks and formalities on those goods that does not pose any risk to the free and unfettered movement of qualifying Northern Ireland goods.”

The commitment, however, obscures a continuing problem. The UK Government has not finalised its definition of Qualifying Northern Ireland Goods (despite talking about expanding the definition for months).

With the Border Target Operating Model now taking effect in Great Britain there remains no clarity on what the government will do to check whether goods shipments moving from Northern Ireland into Great Britain involve goods which qualify for unfettered access and those which should be checked. There is no easy answer to this issues that does not require some assessment of whether goods movements meet the criteria, but the failure to address the issue in detail in the Paper must generate suspicions that Unionists might find the approach the UK is contemplating unpalatable.

The final thirty pages of the Command Paper consists of “make weight” content, with Annex 1 addressing the history of barriers to trade which have existed since the conclusion of the Acts of Union and the creation of Northern Ireland. This content amounts to a repost to claims that the “Acts of Union are the Union” or that Article VI must somehow be “restored” or “fulfilled”. They speak to the incompleteness of the UK’s removal of barriers to trade which came with incorporating Ireland into the Union, and to the amount of times subsequent legislation has impinged upon trade.

But they also speak to an opportunity lost. These realities have been known, and discussed, for years. Successive UK Governments, however, have cultivated inaccurate impressions of the workings of the extent to which the Union operated to remove barriers to trade for their own purposes. This is not a summary that the Johnson Government, which talked relentlessly of “the provisions of the Acts of Union playing a key role in keeping markets open” (Internal Market White Paper, 2020, para 63) would have produced. Instead it is a belated effort to redress that narrative. It is also a rushed effort, with large sections of it apparently lifted from Professor Henry Patterson’s account of trade between different parts of the UK since the Acts of Union published in the Belfast Newsletter earlier this week. 

No such package would be complete without reheating some existing promises. The Castlereagh Foundation was announced in the New Decade, New Approach deal (para 26) as a means “to support academic research through Universities and other partners to explore identity and the shifting patterns of social identity in Northern Ireland”. The fact that Castlereagh’s biographer, John Bew, is the great survivor amongst special advisers to recent UK Prime Ministers is surely not coincidental to this enduring fixation with a politician best remembered for being maligned by Shelley after Peterloo, for the Castlereagh Foundation is once again promised, indeed guaranteed, in Annex 2. Given the overall tenor of the Paper, perhaps the inclusion of reheated promises was inevitable, but it does flag the extent to which the UK Government’s supposed commitments to Northern Ireland fade in and out depending on the extent to which it is in crisis. What might Shelley say of the whole thing; Very smooth, yet grim.

At this juncture, this account might give the impression that these new developments are so insubstantial as to not warrant Jeffrey Donaldson’s return to power sharing. But that is only the case because all of the heavy lifting was done in the Windsor Framework’s mitigations. Where these changes are at their most substantive, they are a continuation of developments explicitly planned as part of the Windsor Framework. Where they are window dressing, and there is a large amount of window dressing, all of this could have been asserted many months ago.

The sour taste that the whole arrangement leaves is that of a lost year in Northern Ireland’s governance. A year in which politicians in Northern Ireland could have been governing in the interests of the people of Northern Ireland and helping to address the cost of living crisis. The conclusion of needs-based funding arrangements did not have to become bound up in the story of the Windsor Framework, but the parties returning to power sharing could not contemplate governing Northern Ireland effectively without something being done to address the unsustainable pressure on its finances.

The UK Government reached a workable compromise with the EU in the Windsor Framework and the new arrangements are in large part no more than outworkings of that deal. Had Sunak been less concerned with looking over his shoulder at the threat posed by his predecessors, so much more could have been done to involve the Northern Ireland parties directly in the Windsor Framework negotiations and to arrive at something that landed first time, without the need to confect this second deal.

Just Say No? The new ‘Stormont Brake’ in the Windsor Framework (part 2 of the analysis of the framework)

 

 

Professor Steve Peers, University of Essex

 

Photo credit: Dom0803, via Wikimedia Commons 

 

Introduction

 

The first part of this analysis looked as a whole at the new Windsor Framework, which amends the controversial Northern Ireland protocol and includes a number of other legal texts. The second part of the analysis, set out in this blog, looks in more detail at a specific issue: the ‘Stormont Brake’ on amendments or replacements to EU legislation within the scope of the protocol. It first explains the text, and then discusses issues of interpretation. For reasons of (relative) brevity, I’ve left out interesting issues of comparisons with similar brakes in other EU treaties (the EEA), or within EU law itself, but may come back to these issues another time. It's been argued that the Brake is an 'ornament' that may never be used in practice (see David Allen Green here), and this may well prove to be the case. However, in my view it's still useful to examine the text of the Brake to see how it would work if it is ever used.   

 

The Stormont Brake: text

 

A key point overlooked in some of the initial discussion of the new Stormont brake is that it builds upon an existing provision in the current Northern Ireland protocol. Article 13(3) of the Protocol already states that in principle, Northern Ireland is bound by amended or replaced versions of the EU law which applies to it already. Article 13(4) then provides for a specific rule as regards new legislation within the scope of the protocol, in effect a different form of brake (I’ll call this the ‘Westminster Brake’ for simplicity’s sake, in particular because it doesn’t explicitly involve Northern Ireland, although the UK could unilaterally decide to take account of Northern Irish views). The new Stormont Brake, concerning amended or replaced EU legislation, fits in between them, as a new Article 13(3a), and cross-refers to both. So it’s better to read all three provisions together (I’ve underlined the new text which the Windsor Framework would add).  

3. Notwithstanding Article 6(1) of the Withdrawal Agreement, and unless otherwise provided, where this Protocol makes reference to a Union act, that reference shall be read as referring to that Union act as amended or replaced.

3a. By derogation from paragraph 3, and subject to the fourth subparagraph of this paragraph, a Union act covered by this paragraph that has been amended or replaced by a specific Union act (hereinafter: “specific Union act”) shall not apply as amended or replaced by the specific Union act as from two weeks after the day on which the United Kingdom has notified the Union in writing through the Joint Committee that the procedure set out in the unilateral declaration on involvement of the institutions of the 1998 Agreement made by the United Kingdom, as annexed as Annex I to Joint Committee Decision [XX]/2023, has been followed.

Such notification shall be made within two months of the publication of the specific Union act and shall include a detailed explanation of the United Kingdom’s assessment as regards the conditions referred to in the third subparagraph of this paragraph, as well as of the procedural steps taken within the United Kingdom prior to the notification. If the Union considers that the United Kingdom’s explanation is insufficient as regards the circumstances referred to in the third subparagraph of this paragraph, it may request further explanation within two weeks as of the date of notification and the United Kingdom shall provide that further explanation within two weeks as of the date of the request. In that case the Union act covered by this paragraph shall not apply as amended or replaced by the specific Union act as from the third day after the day on which the United Kingdom has provided that further explanation.

The United Kingdom shall make the notification referred to in the first subparagraph of this paragraph only where:

(a) the content or scope of the Union act as amended or replaced by the specific Union act significantly differs, in whole or in part, from the content or scope of the Union act as applicable before being amended or replaced; and

(b) the application in Northern Ireland of the Union act as amended or replaced by the specific Union act, or of the relevant part thereof as the case may be, would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist.

Where the conditions set out in points (a) and (b) are met in relation only to a part of the Union act as amended or replaced by the specific Union act, the notification shall be made only in respect of that part, provided that the latter is severable from the other parts of the Union act as amended or replaced by the specific Union act. If the latter is not severable, the notification shall be made in respect of the smallest severable element of the Union act as amended or replaced by the specific Union act containing the part in question.

Where the notification is made in respect of a part of the Union act as amended or replaced by the specific Union act, in accordance with the second sentence of the previous subparagraph, the Union act shall not apply as amended or replaced by the specific Union act only in respect of that part.

Where the notification referred to in the first subparagraph of this paragraph has been made, paragraph 4 shall apply with regard to the Union act as amended or replaced by the specific Union act; in case the Union act as amended or replaced by the specific Union act is added to this Protocol, this shall be in lieu of the Union act before being amended or replaced.

This paragraph covers Union acts referred to in the first indent of heading 1 and headings 7 to 47 of Annex 2 to this Protocol, and the third subparagraph of Article 5(1) thereof.

4. Where the Union adopts a new act that falls within the scope of this Protocol, but which neither amends nor replaces a Union act listed in the Annexes to this Protocol, the Union shall inform the United Kingdom of the adoption of that act in the Joint Committee. Upon the request of the Union or the United Kingdom, the Joint Committee shall hold an exchange of views on the implications of the newly adopted act for the proper functioning of this Protocol, within 6 weeks after the request.

As soon as reasonably practical after the Union has informed the United Kingdom in the Joint Committee, the Joint Committee shall either:

(a) adopt a decision adding the newly adopted act to the relevant Annex to this Protocol; or

(b) where an agreement on adding the newly adopted act to the relevant Annex to this Protocol cannot be reached, examine all further possibilities to maintain the good functioning of this Protocol and take any decision necessary to this effect.

If the Joint Committee has not taken a decision referred to in the second subparagraph within a reasonable time, the Union shall be entitled, after giving notice to the United Kingdom, to take appropriate remedial measures. Such measures shall take effect at the earliest 6 months after the Union informed the United Kingdom in accordance with the first subparagraph, but in no event shall such measures take effect before the date on which the newly adopted act is implemented in the Union.

As noted in the new text, the UK’s unilateral declaration on the application of the Stormont Brake is attached as an Annex to the new draft Joint Committee decision, which will (among other things) amend the protocol to add the new Article 13(3a). That declaration is as follows:

1. The United Kingdom will adopt the following procedure to operate the emergency brake mechanism in Article 13(3a) of the Windsor Framework. This mechanism will apply in the unique circumstances of this Declaration and is without prejudice to the status of cross-community voting and safeguards in the 1998 Agreement, which apply solely and exclusively to devolved matters.

a. The mechanism will operate solely and exclusively in the event that after the date of this declaration, the Northern Ireland Executive has been restored and become operational, including with a First Minister and deputy First Minister in post, and the Northern Ireland Assembly has been in regular session. Thereafter, Members of the Legislative Assembly (‘MLAs’) wishing to operate the mechanism must be individually and collectively seeking in good faith to fully operate the institutions, including through the nomination of Ministers and support for the normal operation of the Assembly.

b. The minimum threshold for the mechanism will operate on the same basis as the separate ‘Petition of Concern’ process within the 1998 Agreement, as updated through the New Decade, New Approach Agreement in 2020. This means 30 MLAs from at least two parties (and excluding the Speaker and Deputy Speakers) will need to notify the UK Government of their wish that the emergency brake mechanism should be applied.

c. When providing notification to the UK Government, MLAs will need to demonstrate, in a detailed and publicly available written explanation:

i. that they have met the same requirements as those set out in Annex B of Part 2 of the New Decade, New Approach Agreement, namely that the notification is only being made in the most exceptional circumstances and as a last resort, having used every other available mechanism;

ii. that the conditions set out in the third subparagraph of Article 13(3a) of the Windsor Framework are met; and

iii. that MLAs have sought prior substantive discussion with the UK Government and within the Northern Ireland Executive to examine all possibilities in relation to the Union act; taken steps to consult businesses, other traders and civic society affected by the relevant Union act; and made all reasonable use of applicable consultation processes provided by the European Union for new Union acts relevant to Northern Ireland.

2. If it accepts that the conditions in paragraph 1(a) and (b) have been met and that the explanation provided under paragraph 1(c) is satisfactory, the United Kingdom will notify the Union in accordance with the first subparagraph of Article 13(3a) of the Windsor Framework.

3. The United Kingdom, following a notification by MLAs, commits to informing the Union without delay.

4. The United Kingdom, following a notification to the Union that the emergency brake has been triggered, commits to intensive consultations in the Joint Committee on the relevant Union act as provided for by Article 13(4) of the Windsor Framework

In addition, there are further non-binding measures relating to the Stormont Brake: a Joint Committee recommendation and a Joint Declaration on what happens if the UK pulls the Stormont brake and arbitrators rule against it. The first measure states that:

In case the arbitration panel has ruled, in accordance with Article 175 of the Withdrawal Agreement, that the United Kingdom has failed to comply with the third sub-paragraph of Article 13(3a) of the Protocol, the Union and the United Kingdom agree no later than 30 days after such notification that in order to comply with the arbitration panel ruling, and as the case may be, to the extent set out therein, the Union act applies as amended or replaced by the specific Union act, as defined in Article 13(3a) of the Protocol, as from the first day of the second month following the notification of the arbitration panel ruling to the Union and the United Kingdom.

The Joint Declaration states that:

The Union and the United Kingdom recognise that for a notification under Article 13(3a) of the Windsor Framework to be made in good faith in accordance with Article 5 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’), it needs to be made under each of the conditions set out in paragraph 1 of the Unilateral Declaration by the United Kingdom on involvement of the institutions of the 1998 Agreement, as annexed to [the draft Joint Committee Decision].

In case the arbitration panel has ruled, in accordance with Article 175 of the Withdrawal Agreement, that the United Kingdom has failed to comply with Article 5 of the Withdrawal Agreement in relation to a notification under Article 13(3a) of the Windsor Framework, swift compliance with the ruling of the arbitration panel should be achieved, as set out in [the draft Joitn Recommendation].

To explain the context of these two soft law measures, which obviously assume that the dispute settlement process of the withdrawal agreement might be used if the ‘Stormont Brake’ were pulled, it’s necessary to summarise that process. (For a full annotation of the dispute settlement rules in that treaty, see my blog post here; the issue is also discussed in my working paper on the withdrawal agreement, and the Yearbook of European Law article based on that working paper).

Article 175 of the withdrawal agreement, referred to in the ‘soft law’ measures, simply requires the parties to comply with a ruling of the arbitrators, once a ruling has been handed down. (To date, the withdrawal agreement dispute settlement rules have not been used in practice). But it does not set a precise time period for compliance; rather, Article 176 of the agreement goes on to set out a process to determine what a reasonable period for compliance is, potentially asking the arbitrators to rule again on that point. (This is based on the rules on WTO dispute settlement, where arbitrators are frequently asked to rule on this issue).

But when it comes to arbitrators’ rulings on the use of the Stormont Brake, the parties have agreed a fast track: if the EU successfully challenges the UK’s use of the brake (and/or successfully argues a breach of the ‘good faith’ rule in the withdrawal agreement as regards use of the brake), the EU law in question will apply from a specific date, which probably falls well before the date that would apply if the usual process to set a time for compliance set out in Article 176 ran its course (up to 30 days for the losing party to suggest a date for compliance, 40 further days for the winning party to contest it, and 40 or 60 further days for arbitrators to rule on the point). The agreement to give effect to the arbitration ruling quickly will also, if applied in practice, avoid the messy consequences of failing to apply an arbitrators’ ruling, as set out in the agreement – namely possible eventual fines or trade sanctions.

But note that these soft law parts of the Windsor Framework do not actually amend the withdrawal agreement. So the UK would not be legally obliged to give effect to the EU law in question within 30 days, if it lost a case. Legally, it could still choose to drag the process out longer or even refuse to comply and face the risk of penalties, as set out in the agreement.

“Why didn’t the UK and EU just agree to amend Article 176 of the withdrawal agreement?” I hear you ask. Well, one or both of the parties may have objected to that idea for political reasons, but in any event there’s a simple legal reason: Joint Committee decisions can amend parts of the withdrawal agreement under certain conditions, but they cannot be used to amend Part Six of the agreement; and the dispute settlement rules are in Part Six.

Legal issues of the Stormont Brake

Leaving aside the purely soft law measures discussed just above, the Stormont Brake raises a number of legal issues.

Scope of the Stormont Brake

First of all, issues arise as regards the scope of the brake. As noted already, the new rules concern objections to amended or replaced EU laws, and will sit in parallel – but partly overlap – with the provisions on objections to new EU laws, ie the Westminster Brake. It is necessary to make this distinction because the grounds and process of applying the Stormont Brake are mostly different to the grounds and process for applying the objection to new EU laws in the Westminster Brake.

The Westminster Brake allows the UK to object to the application of new EU laws for any reason at all – there is no need to show a ‘significant impact specific to everyday life’ of Northern Irish communities which is liable to persist, and no link to the criteria set out in the UK’s unilateral declaration on the Stormont Brake which is annexed to the protocol, or any other criteria. What the two Brakes have in common is what happens after the use of each Brake (Article 13(4) of the protocol). First, the parties must examine the possibilities to keep the protocol functioning by other measures, and may ‘take any decision necessary’ to this end. (In practice, the Westminster Brake has not been pulled to date, and the Joint Committee has amended the protocol to add some new EU laws).  

After a ‘reasonable time’ (not further defined), if there is no such Joint Committee decision, the EU can adopt ‘appropriate remedial measures’ (not further defined), which apply six months later at the earliest, but no sooner than the new EU laws take effect.

So it will be necessary, for at least some purposes, to distinguish between the scope of the two Brakes, ie what is ‘new’ on the one hand, and what is ‘amended or replaced’ on the other. Imagine, for instance, an EU law which is largely new but which amends a couple of provisions of existing legislation to update cross-references to include the new law, or perhaps to make some modest amendments to existing law such as adding tasks relating to the new law to the role of an EU agency. (This is a common EU legislative technique). Is it new, so the Westminster Brake applies, and the UK can reject it for any reason at all? Or is it an amendment, so the Stormont Brake applies, with more stringent criteria to reject it? 

Another issue of scope is tucked away in the final sub-paragraph of the new Stormont Brake clause. The Stormont Brake only applies to parts of the Protocol (the Westminster Brake has no such limitation). It applies to the first indent of heading 1 and headings 7 to 47 of Annex 2, and to the third subparagraph of Article 5(1) of the protocol. Decoding this legalese, Annex 2 sets out EU laws on customs and regulation of goods which apply to Northern Ireland, and the third subparagraph of Article 5(1) refers to EU law on reliefs from customs duty for personal property. But the Stormont Protocol only applies to some of Annex 2: the provisions on the EU customs code and general and specific rules regulating goods, but not to other customs laws listed in heading 1, or headings 2 to 6 of the Annex (fraud against the EU, trade statistics, and various laws on international trade in goods). Nor does the Stormont Protocol apply to laws within the scope of Annex 1 (equality law), Annex 3 (VAT and excise tax law, although note the Windsor Framework amends Annex 3 to provide some exceptions for Northern Ireland), Annex 4 (electricity), or Annex 5 (State aid). Articles 5, 7 and 13 of the Protocol also make further references to EU law in the main text (this includes references to EU Treaty articles).    

So, while the Stormont Brake will apply to most of the EU laws referred to in the Protocol, it does not apply to all of them; which means that there is no process to object to amending or replacing those EU laws outside the scope of the Brake. For instance, the Stormont Brake would not apply to the current proposals to amend EU equality law as regards the power of equality bodies – although it might be argued, as discussed above, that the Westminster Brake applies to those proposals, on the grounds that these are ‘new’ measures, only making minor changes to the text of existing EU legislation and mostly creating free-standing legislative rules.

Substance and procedure of the Stormont Brake

Procedurally, to use the Stormont Brake, the UK must comply with time limits and information requirements: a notification within two months of publication of the EU law; an explanation regarding the substantive conditions; the previous ‘procedural steps’ taken by the UK (not further defined); and the time limits for the EU to ask for more explanations, and for the UK to provide them. These points should be straightforward, other than the definition of ‘procedural steps’ the UK has taken; this may beg the question as to how binding the UK side of the Stormont Brake process is, at least as between the EU and UK (more on that below).

As for the substance, at least two legal issues arise: the interpretation of the conditions referred to in the new Article 13(3a), namely a) a ‘significant’ difference, ‘in whole or in part’, from the ‘content or scope’ of the EU act being amended or replaced; and b) the requirement that that the whole or part of the amended or replaced act ‘would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist’. Both requirements must be met for the Stormont Brake to apply (‘and’). Whether a difference is ‘significant’ and whether an impact on everyday life is ‘significant’ could both, within reason, be legitimately the subject of differing views, although at least some cases should be obvious: a mere codification of existing law (ie, a replacement without any amendments to that existing law) could not seriously be regarded as a ‘significant difference’ from the existing law, and so the codification process could not be a valid opportunity to exercise objections to that existing law via means of the Stormont Brake process (no matter how sincere or well-founded those objections might be). Nor does it necessarily follow that a significant difference has a significant impact (or vice versa); both criteria must be met independently.  

The application of the second criterion entails some degree of future prediction (‘would have’ and ‘liable to persist’), but it should not require that evidence to that end must be supplied by a Terminator or the passengers in a de Lorean coming back from the future. It should be sufficient that there are cogent and plausible reasons, backed up by some credible indications, about what the impact of the law might be. (It might have been better if the Stormont Brake had included a review clause, including an assessment of the impact of the amended or replaced law in the EU in practice – which may have some bearing on considering whether the concerns in Northern Ireland have turned out to be well-founded).

An interesting question is the definition of ‘communities’ here. Is there a numerical threshold of the number of communities, or the number of people, who have to be affected? The most obvious question is whether an impact on the unionist community (or some of it, perhaps) is sufficient to trigger the Brake; but there have also been questions about the effect of the protocol on the supply of kosher food to Northern Ireland’s Jewish community. That specific issue may have been dealt with by the Windsor Framework provisions which simplify the movement of food from Great Britain to Northern Ireland; but the underlying question about the threshold remains.  

The unilateral declaration

This brings us to what exactly to make of the cross-reference to the UK’s unilateral declaration on the Stormont Brake, referred to in Article 13(3a) and annexed to the Joint Committee decision. First of all, the cross-reference in the main text of the decision, and the status of the unilateral declaration as an annex to it, must mean that the UK cannot unilaterally alter it. Secondly, the procedural obligations include an express requirement that the UK notify that the procedure in the declaration has been followed; the requirement for an explanation of ‘procedural steps’ may be a reference to the declaration too. This approach to the unilateral declaration means that it is a hybrid of soft and hard law, with the consequence that it is neither fully unilateral nor fully a declaration – it has at least some hard law impact, and if the UK were to change it or withdraw it unilaterally, attempts to use the Stormont Brake afterwards would be invalid, due to the entrenchment of the current version of the declaration within the Joint Committee decision.

Secondly, how much impact does the unilateral declaration have between the parties – as distinct from within the UK? At the very least, a notification of use of the Stormont Brake must include a statement that the procedure in the declaration has been followed; and it is arguable that there is also a requirement for a ‘detailed explanation’ of the ‘procedural steps’ taken by the UK as regards the declaration. So the use of the Stormont Brake is invalid if the UK fails to state that the procedure in the declaration had been followed, and (arguably) if the UK fails to supply a detailed explanation of the procedural steps taken in that process. It should also be invalid if the UK falsely states that the procedure in the declaration has been followed, as this would be a breach of the ‘good faith’ requirement in the withdrawal agreement (see the soft law on that point, discussed above).

But is the substance of the declaration a matter for dispute between the parties? The wording of Article 13(3a) suggests not. The references to ‘procedure’ and ‘procedural steps’ suggest that the UK does not have to justify anything related to the substance of the declaration. This is bolstered by the requirements for the UK to explain the substance of its objections to the significant change/significant impact criteria in Article 13(3a) – and to explain those objections further if the EU requests it – which is not matched by requirements to explain the how the substantive requirements in the declaration are satisfied.

But this is not the end of the story, for the declaration may be relevant within the UK, especially if it is implemented in some way into UK primary or secondary legislation. As recent (and earlier) judgments have shown, litigation about the protocol itself, Brexit and Northern Ireland, or the status of Northern Ireland in general is not uncommon. So disputes about application of the Stormont Brake may reach the courts, within the UK at least.  

The UK legislation giving effect to the declaration will be relevant in that respect, and we don’t know yet what that legislation will say. But we can, for now, identify legal issues in the text of the declaration. First of all, whether the Assembly is in regular session, the Northern Ireland executive is operational, and there is a First Minister and Deputy First Minister should be simple questions of fact. But arguably there could be room for dispute whether MLAs who want to trigger the Stormont Brake are ‘individually and collectively seeking in good faith’ to operate the Northern Ireland institutions? What if it might be argued that some of those seeking to trigger the Brake are acting in good faith in that sense, but others are not? It cannot seriously be argued that any attempt to use the Brake must necessarily be regarded as an act of bad faith, for the whole Brake would then disappear in a puff of logic. But equally the existence of the good faith test must mean something – otherwise why not refer only to the setting up of the institutions?

Next, there might be some questions about how the voting rules work (on the current ‘petition of concern’ process, as amended, in the context of the recent Supreme Court judgment on the protocol, see the analysis of Anurag Deb on this blog).

As for issues of substance, the objectors must show, in a detailed explanation, that a) their notification is ‘most exceptional’, ‘a last resort’, and they have ‘used every other available mechanism’; b) the conditions in Article 13(3a) of the protocol are met; and c) they have consulted within UK, EU, and Northern Ireland processes, as well as with business and civic society.

The UK government ‘will’ use the Brake if it ‘accepts’ that the conditions are met and the substantive explanation is satisfactory; this suggests a degree of obligation but also some degree of independent assessment of the objectors’ position. But the wording does not suggest that the UK government decision to use (or not use) the Brake, having considered the objections made, is wholly discretionary. It follows that the UK’s decision to trigger (or not trigger) the Brake might be challenged by the objectors (if the Brake is not pulled), or by those opposed to using the Brake (if it is pulled). The Brexity opponents of parliamentary control of the executive’s international relations prerogatives have manoeuvered themselves into a position where they have agreed to at least consider the views of a minority in a devolved legislature as to what the UK government should do when exercising that prerogative; and the courts might have a say too. If the opponents of the protocol really want to maintain their opposition to it, they could try objecting to every amended or replaced EU law on the grounds that it inherently has a significant impact on those in Northern Ireland because of the iniquitous nature of the protocol (in their view) – although remember that objections can only be made if the EU law also is a significant change from the status quo.

This discussion shows the importance of the question discussed above – whether the criteria in the unilateral declaration might be invoked by the EU too. Can the EU argue that the objectors were not acting in good faith, that they did not consult widely enough, and that the objection is not ‘most exceptional’ or ‘a last resort’, and the objectors have not ‘used every other available mechanism’? (Interestingly, a ‘last resort’ test is one of the conditions for the EU to use ‘enhanced cooperation’, ie to adopt some EU law with only some Member States participating) If the UK’s argument, when pulling the Brake, about the substantive requirements of Article 13(3a) is different from the arguments of the objectors, can the objectors and/or the EU challenge that? If there is a judicial review pending against the UK decision to pull the Brake, what happens to the EU/UK discussions (or dispute settlement) in the meantime?

Severability

It’s sufficient to note briefly that there is a ‘severability’ requirement in the Stormont Brake. If the conditions for using the Brake only relate to part of the amended or replaced EU acts, and the offending part of that act is severable from the rest of it, then the Brake should only be pulled as regards that severable part of the EU act. Whether severability is possible, and whether the objection in fact relates to only some rather than all of the act, might well be disputed.

EU retaliation

As noted already, the EU can take ‘appropriate remedial measures’ if either the Stormont Brake or the Westminster Brake is pulled, under Article 13(4) of the protocol, on the same conditions. Whether the measures are ‘appropriate’ might be contested; it is not clear whether appropriateness is an objective standard, or a subjective assessment by the EU, but in any event proportionality is a general principle of EU law, and the word ‘remedial’ suggests that the measures must be limited to remedying the effect of the use of the Brake. What is a ‘reasonable time’ before the EU can adopt the acts might also be contested.

Dispute settlement

Can the UK’s use of the Stormont Brake be subject to dispute settlement under the withdrawal agreement – and could the EU or UK courts get involved? On the first point, the soft law discussed above suggests that the parties anticipate the dispute settlement process might apply. In fact, the preamble to the Joint Committee Decision also refers to the prospect. This is surely correct, because there is no exclusion from the scope of the dispute settlement process (the Theresa May version of the protocol had some exclusions from dispute settlement, but the Boris Johnson version dropped them, because it dropped the parts of the protocol which they related to). Nevertheless, the question could arise whether the arbitrators could look at issues purely related to the UK unilateral declaration, as discussed above.

The dispute settlement process could also be relevant to a UK challenge to EU retaliation against the UK’s use of either Brake, which could raise the proportionality issues discussed above, as well as questions of the ‘reasonable time’ to wait to respond.

It should be noted that it’s the UK government that would be in control of the dispute settlement process – not those who objected to the amended or replaced EU law becoming applicable in Northern Ireland (or, for that matter, those in Northern Ireland who agreed with the new law). The UK could, however, choose to consult with them informally.

As noted above, it is possible that the UK’s use (or non-use) of the Brake could be disputed in the UK courts, in particular as regards interpretation of the unilateral declaration, as implemented in UK law. It’s possible that the UK courts could be asked about Article 13(3a) of the protocol as such too – especially since its substantive criteria are referred to in the unilateral declaration.

Finally, could the UK’s use of the Brake be subject to the jurisdiction of the CJEU? The UK government claims not, because the use of the Brake is not an issue of EU law, and the CJEU can only be involved where there is a question about the interpretation or validity of EU law (the protocol gives the CJEU its usual jurisdiction over EU law as regards parts of the protocol, which does not include Article 13 but does include the laws that the Brake could apply to; and the arbitrators must send the CJEU any questions that arise about EU law as part of the arbitration process).

However, the issues of severability of the EU law, of significant change from existing EU law, and even (arguably) about the significant impact of the EU law are questions of EU law; so the potential role of the CJEU cannot be entirely excluded. In any event, a challenge to the validity of any EU retaliation would fall within the Court’s jurisdiction, as would questions about the interpretation or validity of EU legislation that was the subject of the Brake (leaving aside the Brake’s use as such).

Whether the courts or the arbitrators become involved, there may be questions about the intensity of review, especially of the UK government’s or objectors’ arguments about the impact of EU law. Frankly, both the critics and advocates of EU law sometimes say silly things about it. To come back to the kosher food example discussed above, a fact check suggests that it was hyperbole for the UK government to suggest that the Jewish community in Northern Ireland would be wiped out due to the difficulty obtaining kosher food from Great Britain, given that kosher food was available from non-British sources. On the other hand, the fact check also notes that those other sources of kosher food are more expensive; and to apply the wording of the Brake, in my view it would be perfectly reasonable for the Jewish community to argue that an increase in the price of kosher food would have a significant impact on their everyday life. But what if an amended or replaced EU law had the effect of blocking imports of kosher food from Britain again, and the UK government made its argument using hyperbole instead? Should the EU or the arbitrators overlook the government’s pound shop Godwin’s Law rhetoric, and look at the underlying facts, which nevertheless still make a case for the Brake to be used?   

 

Conclusions

The tension between powers exercised in the central and sub-central levels of governance is common in federal States and other systems of multi-level governance – including the non-federal UK and the EU, an international organisation with far more powers than most such organisations have. But Northern Ireland is distinct in that it is subject to two overlapping and competing such multi-level legal orders – and its population is furthermore internally divided between groups who feel stronger connections to one legal order or the other. These tensions could more easily be reconciled, at least after the Good Friday Agreement, when the UK was a Member State of the EU; but the Northern Ireland protocol, as constantly tested and amended, is an attempt to reconcile them after Brexit. The protocol is, in effect, one of the most contested ‘middle bits’ of a Venn diagram in human history.

The Stormont Brake tries to address these overlapping multi-level tensions by providing both a mechanism to address disputes between the UK government and (parts of) the Northern Ireland polity – in the form of the unilateral declaration – and a mechanism for the UK to convey those concerns within the UK/EU framework. These mechanisms necessarily have to take account of the parallel legal and political constraints on both sides: the UK is not a federal State, and the executive controls international relations, not the minority in a devolved assembly; while the EU no longer includes the UK as a Member State, and there are political and legal limits on the impact which a non-Member State can have. But equally both parties are aware of the importance of ensuring the stability and prosperity of Northern Ireland – which cannot be secured by satisfying the demands of only one community or the other, yet it may be difficult or impossible to reconcile those demands when they conflict. The drafters of the Stormont Brake have made some efforts to address these tensions; time will tell how effective their efforts are.

See also: flow chart on the Stormont Brake, by Simon Usherwood 

*This blog post was amended on 6 March 2023, to add a link to the flow chart, the point that it may only be used as an 'ornament', and a clarification of the CJEU's jurisdiction.