Northern Ireland - The Stormont Brake

On 27 February 2023 the Prime Minister, Rishi Sunak, and the President of the European Commission, Ursula von der Leyen, announced that a new agreement had been reached to change the way the Ireland/Northern Ireland Protocol operates. This agreement is called the Windsor Framework. One of the most significant (and controversial) elements of the Framework is known as the “Stormont Brake”.

What is the Stormont Brake?

The Stormont Brake is a mechanism which gives the Northern Ireland Assembly the power to object to changes to EU laws that apply in Northern Ireland.

The Windsor Framework and associated Regulations set out the procedure for 30 Members of the Northern Ireland Assembly (MLAs) from at least two parties to notify the UK Government of their objection to the amendment or replacement of certain EU laws which apply in Northern Ireland under the original Northern Ireland Protocol. These mainly relate to goods rules, but not to amended or replaced laws concerning State aid, the Single Electricity Market or most of the EU’s customs code. There is a separate (and existing) process for the application of new EU laws in Northern Ireland.

When can the Stormont Brake be used?

The MLAs must satisfy certain conditions, including that the amending or replacement EU law “significantly differs” in its content or scope from the original and would have a “significant impact specific to everyday life” of communities in Northern Ireland which is “liable to persist”. If the conditions in the Regulations have been met, then this would place a legal obligation on the UK Government to trigger the Stormont Brake.

How would the UK Government activate the Stormont Brake?

The UK Government would do so by notifying the EU in writing via the Joint Committee that the Brake has been applied. At that point the relevant EU law would not apply in Northern Ireland. Even if the UK and EU were subsequently to agree (in the Joint Committee) that it should apply in Northern Ireland, it could only do so with cross-community consent in the Assembly, except in “exceptional” and other “highly limited” circumstances. There is an arbitration process if there is disagreement between the UK and EU regarded application of the Brake.

The Stormont Brake has been criticised on the basis that its conditions are such that, in practice, it will be very difficult to apply. Others, such as the Secretary of State for Northern Ireland, argue that it is a powerful “veto” which restores “practical sovereignty” over the application of certain EU laws in Northern Ireland.