by Colin Murray, Professor of Law and Democracy at Newcastle University, UK
Before our upcoming webinar on Brexit, the Northern Ireland Protocol, and the Windsor Framework, scheduled for Tuesday, May 23, 2023, from 5:30 to 7:00 pm, Professor Colin Murray has kindly offered to share some insights on the Windsor Framework. In this blog piece he provides a preview of certain key ideas that he will delve deeper into during the event. We look forward to your participation and the opportunity to further explore this crucial topic.
The Windsor Framework marks the point at which the UK Government and the European Union both unequivocally asserted their intention to make an agreed special set of post-Brexit arrangements operate in Northern Ireland. This amounts to a profound break from the arrangements around the Northern Ireland Protocol, which Boris Johnson’s Government was briefing would be hollowed out in its implementation within days of it being concluded. This commitment to cooperation is a minimum prerequisite to making the complex governance order which exists in Northern Ireland after Brexit workable in practice. Essential to the February 2023 deal was the conclusion of the Stormont Brake, providing the Northern Ireland Assembly with a mechanism for objecting to the automatic application of elements of EU law applicable to the single market for goods, and thereby providing Northern Ireland’s elected representatives with a say in changes to these legal rules to which Northern Ireland is subject.
This post does not reflect upon the workings of the Windsor Framework generally (on which, see here), but on the significance of this special mechanism has beyond the post-Brexit governance of Northern Ireland. It has already prompted considerable interest from EEA countries, with regard to the “fax-machine” acceptance of EU law rules, and for the UK’s devolution settlements amid dissatisfaction with the dubious safeguard offered by the Sewel Convention (a political understanding that Westminster will not “normally” legislate in areas of devolved institutional competence without permission). This sort of Brake mechanism, inserting a new level of input from elected representatives into a complex multi-level governance order, provides a novel means to reshape some of the governance challenges facing the EU and UK, particularly if it is demonstrated to be workable in practice.
In terms of UK governance, the concept of parliamentary sovereignty has long dominated orthodox accounts of the Constitution. The UK’s near half century of membership of the EU, however, required a reappraisal of the concept. Instead of the monolithic message of “what Parliament enacts is law”, the courts came to acknowledge that the concept of parliamentary sovereignty had been attenuated under the European Communities Act 1972; for as long as the UK remained part of the European Project, it was recognised that the rules of EU law applied in full, even to the extent of the courts disapplying domestic statutes to the extent that they stood contrary to EU law. An echo of this approach continues under Article 4(1) of the Withdrawal Agreement, and is reflected in section 7A of the European Union (Withdrawal) Act 2018. As a result of these provisions, EU law obligations which apply to Northern Ireland under the Withdrawal Agreement operate with full effect in Northern Ireland law as if it was part of an EU Member State, notwithstanding any domestic legislation to the contrary. Boris Johnson’s ill-fated Northern Ireland Protocol Bill made an effort to repeal this requirement as part of domestic law, but could not escape the underpinning commitment without (effectively) repudiating the Withdrawal Agreement.
These developments speak to how malleable the concept of parliamentary sovereignty is with regard to the UK’s relationship with the EU as a supranational body. When it comes to sub-state governance in the UK, however, parliamentary sovereignty is frequently presented as a hard barrier to any conception of federalism. Instead of legal blocks on Westminster’s competence, political understandings such as the Sewel Convention were established to demark the ‘normal’ areas of competence. But with the UK Government repeatedly ignoring the absence of legislative consent motions on Brexit related legislation, and recently employing section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent, such supposed safeguards are looking increasingly threadbare. In this asymmetric relationship, the UK Government can take legal steps to protect its competences and to guard against knock-on effects of devolved legislation, but no comparable safeguards exist for the devolved institutions.
The Stormont Brake perhaps offers the sort of mechanism to redefine relations between the devolved legislatures and Westminster. Setting aside some of the elements of the Brake which relate directly to power sharing in Northern Ireland, it functions to allow the Northern Ireland Assembly to seek that the UK Government block the application of new or modified EU law to Northern Ireland on the basis of serious impact upon its society or economy. The UK Government assesses whether the request meets the Brake’s requirements before acting on a valid application of the measure with the EU, with arbitration arrangements then kicking in should disputes arise. The implementing legislation attempts to present the UK Government as administering this request, and not making it subject to broader concerns of EU-UK relations.
Unsurprisingly, there has been considerable interest in the Stormont Brake within Wales and Scotland, offering as it does a more legalised process for addressing disputes between different levels of governance than the oft-ignored Sewel Convention. If it is shown to work for Northern Ireland, a set of criteria could likewise be developed as the basis of a Brake process where Westminster is said to be stepping into the purview of devolved institutions. With a functioning Stormont Brake the claim that parliamentary sovereignty is monolithic in its application to the devolution arrangements (that it can be attenuated with regard to bodies “higher” in the schema of multi-level governance still applicable to the UK post-Brexit, but somehow never for those “lower”) becomes more difficult to sustain.
The implications of the Brake do not, however, stop at devolution within the UK, but extend over how the EU engages with non-Member States. The Protocol, as concluded in October 2019, contained limited consultative arrangements with stakeholders in Northern Ireland. Involvement of the Northern Ireland Executive was envisaged by the UK Government, in the January 2020 New Decade, New Approach plan for Northern Ireland, as part of their teams within the Withdrawal Agreement’s Committee systems. Amid the controversy over the lack of democratic input into applicable EU law which the Protocol generated, the EU’s offering was extended in October 2021. But these proposals still fell some way short of the processes envisaged under the latest Swiss-EU Framework Agreement negotiations.
The Stormont Brake potentially makes for a much more extensive restriction on the operation of Single Market rules than anything envisaged in Articles 15-16 of that Framework Agreement. It is more like the opt out/adaptation facility enjoyed by EEA states with regard to new EU law (but setting up a formal process of structured engagement between Northern Ireland representatives, the UK Government and the EU). As such, it is potentially more workable in practice than invocations of the safeguard clauses built into the EEA Agreement (Articles 112-114), providing a means for Northern Ireland to prevent the application of certain new or amended Single Market rules for an extended time period without provoking a trade war. The lack of structure around Article 16 of the Northern Ireland Protocol, modelled on those EEA provisions, made it very difficult to invoke (despite considerable debate over the measure) without the risk of a trade war.
There is no suggestion that the EU would welcome a new set of rules for interacting with non-Member States which apply extensive amounts of EU law. The complex Swiss bilateral arrangements have always been a headache. It has thus been at pains to present the Stormont Brake as a bespoke solution, tailored to the post-conflict realities of Northern Ireland. If the saga of the Protocol’s “democratic deficit” demonstrates anything, however, it is that multi-level governance interactions are always evolving in light of comparable arrangements. The EU will find it difficult to ringfence Brake arrangements to Northern Ireland if they are shown to work effectively.