What happens if a UK government removes benefits from EU citizens in breach of the withdrawal agreement?

 

 

Professor Steve Peers, Law School, Royal Holloway University of London

 

Photo credit: Martin Robson, via Wikimedia Commons

 

Recently the Reform Party proposed that in government it would withdraw benefits from all non-UK citizens, including from those EU citizens who had moved to the UK before the end of 2020. It acknowledged that this would breach the Brexit withdrawal agreement (for an annotated text of the rules on EU and UK citizens’ rights under the agreement, see here, particularly Article 15).

 

Legally the EU response if the UK breached the withdrawal agreement on this issue (I’m assuming the Reform government would amend UK legislation as needed, to ensure that the breach was valid as domestic law) would be to challenge it in the arbitration process which the withdrawal agreement set up. (For an annotated text of the dispute settlement rules, see here). A dispute can be settled politically; if not settled, it goes to arbitration. An arbitration decision is binding, so if a party is found in breach of the withdrawal agreement, it is legally obliged to comply with the ruling.

 

But what if it does not comply with the ruling? The key provision is Article 178, which provides first of all that fines can be imposed upon the party that remains in breach of the treaty despite an arbitration ruling. Article 178 goes on to refer to possible additional retaliation for a continuing breach, but (in paragraph 2(a)) it says that such retaliation cannot concern Part Two of the withdrawal agreement, ie the citizens’ rights provisions. Therefore, the EU cannot respond to the UK breach of EU citizens’ rights by taking UK citizens’ reciprocal rights away. Instead, Article 178 refers to possible retaliation under other agreements (paragraph 2(b)), which brings us to the Trade and Cooperation Agreement (TCA).

 

The TCA has a separate set of dispute settlement rules, which I have annotated here. The key provision on links with the withdrawal agreement is Article 749(4) of the TCA. It states that a continuing breach of the withdrawal agreement can also result in suspension of parts of the TCA, ie tariffs on goods or suspension of other provisions of the agreement (subject again to some limits on the subject-matter of retaliation, ie the retaliation cannot affect social security).

 

The retaliation must be proportionate though, and if the party in breach argues that the amount of that suspension is disproportionate, the arbitration panel can be recalled to rule on the point (Article 178(3) of the withdrawal agreement).

 

One possible form of retaliation which would arguably be proportionate would be to reimpose tariffs equal to the amount of benefits EU citizens would be losing as a result of the breach, to which they would otherwise be entitled under the withdrawal agreement. So if the breach of the agreement caused EU citizens to lose €1 billion in benefits, UK goods exports would face €1 billion in tariffs. Under the World Trade Organisation, in comparable cases, the EU has targeted high profile exports from its trading partner in breach of the rules; for the UK, that might mean higher tariffs in particular on Scottish salmon or whisky, or Jaguar cars. To be clear, this is speculation – the EU might prefer another type of retaliation which is allowed under the agreements. And the EU would be charging its usual tariff rate for countries which it does not have a free trade deal with, which would only mean a big increase for some products.

 

It’s possible it wouldn’t get to this stage: the EU might decide to negotiate changes to the withdrawal agreement; indeed the Reform Party document states that it will ‘renegotiate’ the treaty. But a treaty can only be renegotiated if all parties agree; and it seems very unlikely politically that the EU would agree, given the priority which it placed on the issue before. (On the EU side, an amendment would need to be agreed by a qualified majority of Member States, having been proposed by the Commission, after consent of the European Parliament).

 

As for additional possible sanctions, the EU might, for instance, suspend talks on other issues with the UK. It could even suspend or terminate the entire TCA, although arguably the rule on proportionality of retaliation applies here. In practice, during prior disputes with the UK, the EU has preferred the negotiation and dispute settlement route rather than escalation: both the EU and the UK have previously triggered disputes under the withdrawal agreement and the later Trade and Cooperation Agreement, although only one dispute has got as far as an arbitration decision.

 

For instance, when the EU disputed the UK’s application of (what was then) the Northern Ireland protocol to the withdrawal agreement, it suspended talks on the UK’s participation in EU research programmes and began dispute settlement proceedings, but it put the latter on hold pending negotiations, which eventually resulted in a revised version of the protocol known as the Windsor Framework – after Liz Truss lost her nail-biting contest with a lettuce.

 

As for terminating the whole withdrawal agreement, as discussed further here, there is no termination clause (apart from the trade aspects of the Windsor Framework, subject to certain conditions), and in any event the EU would have no interest in terminating the basis for the Windsor Framework and the protection of its citizens’ rights. Nor does a breach of a treaty automatically terminate it, under international law – which has a whole Latin phrase (pacta sunt servanda) for the importance of upholding treaties. (Though to be fair, international law has a Latin phrase for nearly everything)

 

Anyway, as has been pointed out, EU citizens might choose to apply for UK citizenship before any new UK rules took effect.

 

All of this points to a policy that, on this point at least, seems as ill-thought-through as Mr Farage’s decision not to declare the significant gifts he received shortly before becoming an MP, including those from a convicted money-launderer.

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.