28th February 2023
Here I will pose the question whether the proposed “Stormont Brake” is an instrument or an ornament.
In other words: is the brake something which can actually be used – and be useful – in practice?
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Here are some preliminary views, based on my first reading of the extensive documentation published yesterday for the “Windsor Framework”.
There is no doubt that, in theory, the brake is a very powerful instrument.
If the brake is applied then specific new European Union legislation will not apply in Northern Ireland, notwithstanding the Northern Irish Protocol agreed in 2020.
But.
Even in describing this (potential) potency you will see limitations.
The brake will only apply to new European Union legislation, not existing legislation.
There will be only a short period to challenge the legislation.
And the brake does nothing about the jurisdiction of the European Union courts in interpreting the law of the European Union when it applies in Northern Ireland.
So even taking the brake at its most powerful, its effect will be limited.
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And there is another but.
The small-print of the documents published yesterday show that the conditions and process for the brake are such that, in practice, it will be difficult-to-impossible to apply.
The documents expressly describe it as an “emergency” brake.
For it to be used, the Northern Irish executive needs to be be in place and functioning.
There would then need to be thirty members of the Northern Irish legislative assembly, from more than one party, who are concerned about the proposed measure.
But mere expressions of concern will not be enough.
The MLAs will need to show:
(A) “most exceptional circumstances and as a last resort, having used every other available mechanism” and
(B) a significant impact specific to “the everyday life of communities in Northern Ireland in a way that is liable to persist”.
And if you read that last requirement carefully you will see that it is comprised of three component conditions:
(i) scope – “everyday life of communities” (and note the deft plural);
(ii) significance of impact; and
(iii) duration – “in a way that is liable to persist”.
The MLAs also need to show (C) that they have consulted businesses and civic society, as well as (D) they have participated in any prior consultation exercises for the measure.
Once this step has been accomplished, the government of United Kingdom in turn has to show the European Union (E) why it considers the EU legislation is different from what went before, and – as above (B) again – that the United Kingdom itself considers that it “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.
All of these conditions are defined, and presumably if the United Kingdom cannot show the conditions have been met then the Stormont Brake cannot be applied.
(I am still trying to work out how any dispute in any of this will be resolved.)
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There is a see-saw problem as well.
If a thing is too difficult to be used then it will tend not to be used.
One reason the safeguard provisions under the existing protocol have not been fully used is that the sheer number of conditions and requirements that need to be ticked-off before they can be activated.
As such the provision has become an ornament rather than an instrument.
The same problem may be there with the Stormont Brake.
It may become an ornament, for it will be so difficult to use in practice.
Perhaps that is the intention: it will just be there for reassurance that such a button can be pressed.
But the same was said of the then-new Article 50, after the Lisbon treaty.
It is never safe to assume that an ornamental provision will never be used, and so it always should be capable of working for the intended purpose.
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I am not a supporter of the ERG or the DUP – I support a united Ireland and for the rest of the United Kingdom being part of the single market.
As such, I think the Windsor Framework is a welcome step.
But if I were a supporter of the ERG or the DUP I would not be satisfied by the Stormont Brake – at least with all its current conditions.
Else there will just be another bout of political tension as and when, like the Article 16 safeguards, the Stormont Brake is not seen as a ready remedy.
And we will have to negotiate a new framework and find a new symbolic place to name it after.
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Perhaps the brake does not matter.
Perhaps it is all politics.
Perhaps those involved just want cover for bringing this row to an end, and the Windsor Framework contains a raft of other practical measures to address practical problems.
And as someone observed on Twitter, it is somewhat fitting that a symbolic problem has a symbolic solution.
https://twitter.com/mathof1/status/1630510607647514624
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But if it ever does matter, then the brake must be capable of working.
It cannot just be an ornament.
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I do believe it was designed to be an ornament,
and, as such, will probably work quite well …………..
Surely you should finish with
Brake, Brake!
I did think of that, but I did not think I could pull it off!
You’re not supposed to be able to pull brakes off.
or the anagram: Baker. Baker!
If being in the Single Market is as beneficial for NI as Sunak and Baker now say it is, presumably NI politicians will anyway want to remain aligned with the SM by embracing new SM legislation as it emerges in the coming years.
I wonder if the real and increasing irrelevances are, in fact, the ERG and the DUP? Is there anything as offensive to a democracy when diminishingly minor groups such as here two can in effect stop the wishes of the majority? It is more than them simply having a say, which is absolutely right, but they have a veto, official in the case of the DUP and unofficial in the case of the ERG.
I think we all recognise that the Stormont Brake is a rather crude carrot to get the DUP back to Stormont. The DUP have backed themselves into a corner of their own making. They crippled May’s attempts, backed Johnson and were double crossed by him. They want a hard border and some even think they would welcome renewed violence. They voted against the GFA at every turn so it is ironic they say they are now trying to defend the very thing they hated. The less charitable among us might think that they will grasp for any excuse not to have to play second fiddle to Sinn Fein at Stormont. There are growing suggestions that if they continue to prevaricate then the rules will be changed so that those political parties who are willing to participate in Stormont, will be able to do so and the DUP can stay out (preferably unpaid in my view) until they decide to participate properly.
As I understand it, Sinn Fein MPs elected to Westminster are not paid a salary because they refuse to take their seats (although they are counted as elected MPs and they can claim other parliamentary allowances and privileges).
But I understand MLAs are paid their salary, whether or not the Assembly is able to sit and function. It may be a small factor, but it seems to me MLAs should not be paid at all while there is no functional Assembly.
If the Brake was just a big red button in the wall, under a sign saying: “Press Here”, doing so may not feel particularly noteworthy; but a Brake requiring co-ordination, determination. dual keys, the lifting and snapping of covers and panels – well, that is a matter befitting the fine gentlefolk whose stature allows them the privilege & responsibility of its operation. Perhaps upon receiving their training in its mastery, they might be issued with tiny golden brake levers, like those from Mallard or the Flying Scotsman, which they can wear discreetly beneath their tailored shirts?
The issue with the idea of withdrawing MLA salaries is that you’re punishing… *checks notes* all 90 MLAs for the intransigence of 28, which gives that 28 more power to mess with the other 62. It’s worth remembering that the DUP’s refusal to form an Executive is an act of protest against the UK government’s decisions which the entire NI Assembly does not have the power to overrule, even if it was unanimous. It’s also worth noting that the DUP’s leader is not a MLA, but a MP who sits in Westminster.
You could try to invent a mechanism to selectively dock the salaries of intransigent MLAs, but that doesn’t seem viable – because NI politics would require that whatever controlled this mechanism is also subjected to the same power-sharing arrangements which allows either of two parties to keep Stormont shut.
Would we be punishing MLAs, rather than just paying them when they are working, and not otherwise?
To my surprise, I find the salary of MLAs is already reduced when the Assembly is not functioning. It appears to be at present around £37,000, rather than the £51,000 they would otherwise get. Even so, for 90 members, that is over £3m (rather than £4.5m). And last year they claimed nearly £9.5m of expenses, costs and allowances on top.
See http://www.niassembly.gov.uk/your-mlas/members-salaries-and-expenses/
Perhaps that is a small number in the overall context – I think annual public spending in NI is over £15 billion.
So you’ve already got what you’d like to see anyway. With the DUP’s leader drawing a full Westminster MP’s salary and expenses, it’s not surprising that this paycut has had no effect at all.
Standing for elected office is no trivial undertaking. If you don’t pay the MLAs, then only candidates who can support themselves by other means can ever consider running for the job, given how some other party they have nothing to do with could prevent them from actually starting the job.
It ensures that power may only be exercised by the wealthy and that is not healthy in any democracy.
Absolutely right on all points and maybe if the dups mlas had had their wages stopped from day one of their actions they might have been back to work before now.
Sunak says, without a trace of irony, that the people of NI have the best of all worlds being in the single market, something he has denied the rest of us.
Sunak has weathered a snake pit of party politics and is starting to show statesmanship and political smarts.
The deal is clearly a better one for NI and offers fig leaves for the purists. DUP has been hoisted by its proverbial.
DUP decided the Protocol was its electoral saviour so it flounced out of Stormont. It will not go back to Stormont before the local elections: the deal is not a climb down by Sunak or the EU so to accept it casts doubts on why it stormed out in the first place. Yet to reject the deal risks losing even its own voters because business is happy and the average voter won’t look beyond the fig leaf. So DUP will be left looking like a sulky child rather than one throwing its toys out of the sandpit. Yet again DUP is being reminded that it irrelevant in British politics except when it holds the voting balance and/or is supported by a key mainland group.
ERG & co have been played. The core of their demands have been met and again most voters really dont care about the fine detail of the brake and ECJ jurisdiction. ERG can trumpet that they were right and the EU caved but that begs the question why they were incapable of achieving a result when they were running the shop. And they cant trumpet a defeat for the EU without admitting that Sunak is firm on Brexit. The smarter ones (there must be a few) will realise that unless the the Tories embrace the new deal in a vote the Lab will claim the credit and increase its already sizeable lead. It might even be dawning on the really smart ones that if/when Lab gets in with an image of pragmatic Brexitism it is going to be able to undo much of the hard Brexit stuff and move towards something closer to EEA co-existence. Sunak might be quietly pushing that message: you may prefer opposition to compromise in principles but if Lab gets in then Brexit is going to end up being softer than Andrex.
The other winner is the EU. This sort of pragmatic deal was always available but ERG poisoned the well. Sunak waited for things to cool and then quietly got what had always been on offer.
I think there is a lot in what you say.
Brilliant assesment of the situation simon.couldnt have put it better myself.
We know it is an ornament.
The EU member states have not granted the Commission any authority to renegotiate the WA or the FTA. So all that is going on here is nanny patiently discussing with the recalcitrant teenager that they really do have to swallow the bitter pill as set out in the NIP, but maybe they can use a coloured marker to make it look like a sweetie, or ornament if you will.
It even says that clearly in the text, “the United Kingdom and the European Union, based on their continued commitment to the two Agreements that govern their relationship – the Withdrawal Agreement and the Trade and Cooperation Agreement”.
So this is flim flam to disguise the trivial changes to the lower level stuff such that the UK actually gets on and properly implements what it signed up to in the first place, i.e.
– proper border posts at the ports;
– proper compliance with EU standards;
– proper access for EU to UK monitoring (IT) systems;
– etc
This as an absolute travesty dressed up as a substantive change. All that is happening here is that nanny is getting the child to actually swallow the pill. As the child originally said it would before having a tantrum.
I suspect it’s only a matter of time but as has been pointed out already, NI almost has its pre-brexit status back in place & the DUP is faced with Hobson’s Choice; all very good.
The Stormont Brake however, reveals a yawning gap between coaxing a recalcitrant DUP back into government & thereafter protecting the hard-won status of NI in future.
How does Stormont prevent future UK legislation wrecking its considerable advantage in having access to both the Single Market & UK market?
An example is already making its way through parliament in the form of Rees-Mogg’s bill to remove EU legislation & presumably some considerable amount of EU regulation from UK statute books.
Another aspect of this is that if the break is ever applied, NI will be a tiny market with a regulatory regime which is not quite the same as the UK nor the EU. Not exactly great for business.
I work in the Customs Services sector; even without the NI Protocol, the ROI/EU is not exposed to any significant trading risk that would not be detected and resolved with the usual customs intelligence and processes.
Which makes me think that this has been a “let this be an example to you…” exercise by the EU, to deter other member countries from leaving, rather than a genuine fear of “dodgy” goods entering the EU.
Without the NIP, how and where do you suppose the “usual customs intelligence and processes” would be applied?
This isn’t an exercise in deterrence by the EU; it’s the outworking of the inherent contradictions in the Brexit the UK government chose – a hard Brexit, outside the Single Market and the Customs Union, but with no hard border between NI and IRL. The NI Protocol isn’t an EU imposition; it’s the UK’s preferred method of attempting to square that circle.