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.
