Brexit deal: Is the Stormont Brake an ‘unequivocal veto’ on EU law, as London has claimed?

The European Union and the United Kingdom have ushered in a new chapter in their long, rich and sometimes fraught relationship.

These exact words – “new chapter” – were deliberately emphasised by both European Commission President Ursula von der Leyen and British Prime Minister Rishi Sunak when they met on Monday to present the Windsor Framework.

“The new Windsor Framework respects and protects our respective markets and our respective legitimate interests,” von der Leyen said, in a visibly upbeat mood.

The framework has been hailed as a set of “joint solutions” to address the complex regulatory situation in Northern Ireland, a region with a history of bloody sectarian violence that, since the 2016 referendum, has been awkwardly caught between UK and EU legislation.

In order to maintain an invisible Irish border and prevent a resurgence of civil unrest, Brussels and London negotiated an ad-hoc protocol that has kept Northern Ireland under EU rules for customs, Value Added Tax (VAT), excise duties, subsidies and trade for goods.

Since its signing in 2019, the protocol has been the subject of intense criticism from the Unionist Movement in Northern Ireland and the Conservative Party in Westminster, who argued the provisions erected an artificial border in the Irish Sea and infringed upon British sovereignty.

The 2022 election to the Northern Ireland Assembly, known as Stormont, delivered a clear pro-protocol majority and brought the power-sharing executive to a standstill, further aggravating the crisis.

An exceptional brake

Mindful of this persistent friction, Brussels and London have now come up with a new innovative mechanism – dubbed the Stormont Brake – to give the people of Northern Ireland a greater say on how the rules work in practice.

Under the previous rules, any changes to EU law – either the passing of an amendment or a brand new text – that still applied to Northern Ireland had to automatically enter into force across the territory.

Now, under the Windsor Framework, the brake will allow the 90-seat Stormont assembly to raise objections if it thinks these changes to EU law have a significant and lasting impact on the everyday lives of Northern Ireland residents.

The petition will have to be signed by a minimum of 30 Stormont legislators from at least two different political parties, and will have to lay out solid arguments to prove the damaging impact is “liable to persist,” the British government has said.

But unlike traditional petitions of concern, the appeal will not require a cross-community vote in the Stormont assembly, which means that either unionists or nationalists could gather the necessary signatures to launch the process on their own.

“The Brake will not be available for trivial reasons,” London has warned.

In Brussels, the European Commission insists the tool will be an option of last resort, only meant for the “most exceptional circumstances” where all other mediation efforts have been exhausted.

Once Stormont drafts and signs the petition, London will be entitled to trigger the brake and suspend the application of the amended EU law in Northern Ireland, with immediate effect.

After that, EU and UK officials will meet in their joint committee to discuss the legal dispute and how the brake can affect the protocol and the invisibility of the Irish border. If no solution is found then, the two parties will take their dispute to independent arbitration.

That panel, appointed by both sides, will be tasked with ruling if the activation of the brake met the necessary conditions or was unjustified. At this last stage, two scenarios are possible:

• The panel rules the brake did not have merit, leading to its de-activation. The changed or new EU law will then apply to Northern Ireland, according to the protocol.
• The panel rules the brake had merit, allowing the suspension of the changed or new EU law. This situation will create a regulatory divergence, even if limited, between Northern Ireland and the Republic of Ireland. The EU will then be expected to take specific “remedial measures” to address the new situation.

An unequivocal veto?

Although Brussels and London both agree on the emergency nature of the Stormont Brake, warning against it being exploited, there is a striking disagreement on the power the mechanism carries.

The brake “would give the UK an unequivocal veto – enabling the (EU) rule to be permanently disapplied – within the Joint Committee,” the British government has said.

The word “veto” was also used by Prime Minister Sunak during Monday’s joint press conference with President von der Leyen and later repeated on his Twitter account.

Neither von der Leyen nor senior European officials have employed the term, which is politically charged and can be seen as an admission of the EU’s loss of control. The word is equally absent from any official document released by the European Commission.

“Nouns or adjectives that are used to describe it further are a matter for each side,” a European Commission spokesperson said when asked about the semantic divergence.

For Mujtaba Rahman, an analyst at the political risk consultancy Eurasia Group, the Stormont Brake constitutes a “full-fat veto.” But for David Henig, the UK director at the European Centre for International Political Economy (ECIPE), the brake is being “oversold” by Sunak and his conservative government, where the hard-line Brexiteer wing still holds important sway.

“The UK can decide not to implement EU law, but then both parties have to discuss alternatives, and the EU can take measures if there’s no agreement,” Henig told Euronews.

Christy Petit, an European law professor at Dublin City University, agrees, noting the brake is limited by the condition to prove a “significant” impact on the lives of Northern Irish people.

“Even though the brake will be activated upon a unilateral decision from the UK side, this cannot be fully unequivocal as the EU can always retaliate, and there is a procedural safeguard to make sure (the UK) has acted in good faith and in accordance with the Windsor Framework,” Petit told Euronews.

In a surprising concession, Brussels accepted to exclude the European Court of Justice (ECJ) from the Stormont Brake, which will now be in the hands of the independent arbitration panel. The omission of ECJ oversight, a point of friction during negotiations, was openly celebrated by London.

In Brussels, senior officials stressed the arbitration panel will only be asked to rule on the conditions to trigger the brake – a procedural matter – rather than on the substance of European law itself, where the ECJ will remain the “sole and ultimate arbiter.”

Federico Fabbrini, a visiting law professor at Princeton University, says the Windsor Framework does not diminish the ECJ because its role remains “entrenched” in the original protocol and the arbitration panel will examine new changes to EU law – not the existing legislation in its entirety.

“The parties have committed to peaceful resolution of controversies and to the use of arbitration, which was always possible according to the protocol,” Fabbrini told Euronews.

“So there is no change there.”