Does anyone actually know what the Stormont Brake is? Some questions partially answered…

Bill Breathnach is  Writer and TV researcher based in Connemara. Interested in economics, politics and all things cultural…

Northern Ireland has been without a functioning Executive for over a year now. Boycotting and abstentionism are tactics that have long been associated with Irish nationalism. But they have been diligently applied by the DUP with respect to Northern Ireland’s devolved institutions in recent times for the cause of unionism. In response, the UK government was once again forced to enter negotiations with the EU to amend the Protocol, in hopes that the DUP could be cajoled into re-entering Stormont. The result of these negotiations was the Windsor Framework, unveiled by UK Prime Minister Rishi Sunak and President of the European Commission Ursula von der Leyen last Monday.

Yet details over one of its most important provisions remain unclear. The “Stormont Brake” was included to remedy Unionist concerns regarding the “democratic deficit challenge”. The Brake will give MLAs a formal influence over EU laws in Northern Ireland. But how?

When contacted, Eóin Tennyson MLA of the Alliance Party stated that “it remains unclear how the so-called Stormont Brake will operate in practice. The threshold for triggering it is said to be very high but that has not [been] adequately defined at this stage”. A spokesperson for Sinn Féin also declared that they are still “consulting senior Assembly officials on the ‘Stormont Brake’ about how it would apply in practice and its implications … However, our understanding is that it is a mechanism of last resort to be used only in exceptional circumstances, if at all”.

The Windsor Framework states that the Brake will “operate on the same basis as a separate ‘Petition of Concern’”, the parliamentary mechanism requiring that certain matters receive cross-community approval in Stormont. However, this statement appears to have caused some confusion. A BBC report on Tuesday implied that the Brake would need cross-community backing to be invoked. A later report contradicted this by stating it could simply be triggered by 30 MLAs from two or more parties. When contacted for clarification, a spokesperson for Number 10 confirmed that the latter report was accurate, but that Independent MLAs could count as a ‘second party’ for the purposes of triggering the Brake.

So far, so clear, but there are further details of the Stormont Brake that still need to be ironed out. The Windsor Framework also states that “the Brake will not be available for trivial reasons … MLAs will need to show that the rule has a ‘significant impact specific to everyday life’”. But what do “trivial” and “significant impact” mean exactly?

In response, Number 10 stated that “It will be for MLAs in the Northern Ireland Assembly to reach their own view on the threshold following Assembly scrutiny and to notify the UK Government if the conditions set out in the Windsor Framework are met. That assessment will need to be published transparently, and the Government is under an international law obligation to trigger the Brake if those conditions are met. The EU has no role in determining whether the ‘significant’ threshold is met”.

As such, it is up to the Assembly to define how significantly an EU law might impact Northern Ireland. However, questions remain on the exact methods used by the Assembly to determine this, and how legally binding such a determination might be.

Finally, if the Assembly triggers the Brake, the UK government would then be required to notify the EU and the rule in question would be automatically suspended for a maximum of four weeks. The EU and UK would then decide jointly on whether to implement the rule, with the UK government having a veto over this. Again, the exact mechanism of this veto is not provided for in the Windsor Framework.

The UK government merely states that legislative proposals on this matter will be discussed with Northern Ireland’s political parties. It also proposes that a rule would be vetoed in “the absence of a cross-community vote … unless the Government could demonstrate that there were exceptional circumstances to justify it, or show that the measure would not lead to new regulatory borders between Great Britain and Northern Ireland”.

It is in this context that the DUP is presently deciding whether to accept the Windsor Framework and return to Stormont. The response from the senior party figures have been mixed. On a Times Radio podcast, the DUP’s Chief Whip, Sammy Wilson MP bemoaned that “the final decision on this will be made by the UK government”, apparently unaware that that tends to happen when one is an “integral part” of the UK. Former party leader Peter Robinson struck a more ambiguous tone on Facebook this week, stating that the DUP should consider whether it’s position might “place unionism and Northern Ireland on more perilous ground”.

However, the uncertainty of the situation may work in the DUP’s favour. One anonymous source from the SDLP suggested that the Framework offers a “constructive ambiguity”. Growing strain on Northern Ireland’s public services and the present cost of living crisis have seen the DUP under increasing pressure to return to Stormont. A Schrödinger’s Protocol as it where, that does not explicitly fulfil or violate the party’s redlines may be required to seal the deal.

Indeed, as DUP members study the minutia of the Stormont Brake and the Windsor Framework, they may very well find solace and guidance from the Bible. After all, the party is famous for being founded by a God-fearing Free Presbyterian preacher man. In 1 Corinthians 9, Paul the Apostle states “I have become all things to all people so that by all possible means I might save some. I do all this for the sake of the gospel, that I may share in its blessings”. If the DUP can accept a Framework that is “all things to all people”, they would do well to “share in its blessings”.