Stormont Brake explained: What it does, how it works, and what anti-Northern Ireland Protocol politicians think of it

What may sound like an incredibly disappointing sequel to Fast & Furious: Tokyo Drift is in fact a key plank of the newly revamped protocol deal called the Windsor Framework.

Here the News Letter breaks down what the brake is, and what people think of it so far.

In a sentence, the Stormont Brake gives unionists some veto power over how much EU law Northern Ireland has to obey.

It has already been denounced as next to worthless by big players in the DUP though.

To make sense of it, we need to revisit what the protocol originally said.

You may want to pour a coffee and get comfy; this does not lend itself well to a bite-sized explanation – but we’ll do our best.

​Here goes:

••• WHAT DID THE OLD PROTOCOL DEAL SAY? •••

It said that, before the end of 2024, the assembly had to vote on whether Articles 5 to 10 of the protocol should continue to apply in NI.

Articles 5 to 10 cover things like customs, trading certificates, VAT and excise – basically the core components of the Irish Sea border.

The protocol was very precise about how an assembly vote should happen ... and it was not good news for unionists.

It said that if a motion calling for the sea border to remain in place passed by a simple majority, then this would decide the matter for four years, after which another vote had to happen.

But if the motion were passed with “cross-community support”, then there would be eight years until the next vote. “Cross-community support” under the protocol means one of two things:

A) An outright majority of the MLAs voting, including at least 51% of unionists and 51% of nationalists;

B) Or 60% of all the MLAs voting, including at least 40% of nationalists and 40% of unionists.

The reason this is a problem for unionists is that they no longer have an outright majority in Stormont, so any motion backed by Alliance, SDLP, and Sinn Fein (all of whom have been positive towards the protocol) would pass.

This voting arrangement will continue as part of the Windsor Framework, but it has now been joined by the Stormont Brake.

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••• HOW CAN THE BRAKE BE PULLED? •••

Pulling the Stormont Brake is pretty much identical to the well-trodden practice of tabling a petition of concern.

Petitions of concern are a controversial veto created by the Good Friday Agreement, and mean that 30 MLAs can insist that any vote must get strong support from both nationalists and unionists to succeed.

Critics have argued it has been grossly overused for lots of non-orange/green things, like blocking gay marriage – so much so that the 2020 Stormont House Agreement pledged to confine such petitions to only “the most exceptional circumstances and as a last resort”.

Now the Windsor Framework has revived the idea for dealing with the Protocol.

The government says that the assembly can pull the Stormont Brake by “30 MLAs from two or more parties coming together to sign a petition”.

Despite the wording above, it is understood that there need not be two parties after all. Instead it could be one party, plus independents.

And although this gives unionists more clout than the old protocol arrangements, it requires a measure of unionist unity.

Suppose the DUP (25 MLAs) was unable to persuade the UUP (9 MLAs) to band together on a petition. It would fail.

Or suppose the UUP and DUP merge (making 34 MLAs); the party would still then have to find an independent unionist to come on board, of which there are only three in the assembly – TUV man Jim Allister, liberal Claire Sugden, and ex-DUP man Alex Easton.

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••• WHY CAN THE BRAKE BE PULLED? •••

The brake can only be pulled in cases involving “new or amended EU goods rules that would have a significant impact on the day-to-day lives of businesses and citizens” says the government.

It adds: “The brake will not be available for trivial reasons. There must be something ‘significantly’ different about a new rule, whether in its content or scope, and MLAs will need to show that the rule has a ‘significant impact specific to everyday life’ that is liable to persist.”

There is no definition of what “significant” means, however.

One thing the brake will not affect is any pre-existing EU goods rules which are in force right now – only “new or amended” ones.

This keeps alive the possibility of 'Irish Sea drift', where Northern Ireland keeps following a bunch of pre-existing EU rules which Great Britain had long since shrugged off.

In other words, the laws governing NI and GB could grow apart, regardless of whether the brake is pulled often or not at all.

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••• THE BRAKE IS PULLED – WHAT THEN? •••

No 10 says that “once pulled, that brake will give the UK government the sovereign power to veto the new EU rule from ever applying in Northern Ireland”.

Note the language: "...will give".

Pulling the brake does nothing in itself.

Like the much-vaunted Protocol Bill, all it would do is grant the government the authority to take action – it does not oblige it to do so.

The government explains that, if and when the assembly does pull the brake in reaction to some new EU law, and London decides to act on this, this will “suspend” the new law from coming into force.

“It can then only be subsequently applied in Northern Ireland if the UK and EU both agree to that jointly in the joint committee,” says the government.

This joint committee is chaired jointly by UK/EU figures: right now that means British Foreign Secretary James Cleverly and EU vice president Maros Sefcovic.

The first and deputy first minister will also get a seat in any committee meetings relating to Northern Ireland.

The government also says that its decision to suspend a piece of EU law in this way can be “challenged through independent arbitration mechanisms”.

Whilst it is not totally clear what these will be, the government is keen to stress it will not be the European Court of Justice (ECJ).

Added to which there is a clause in the Windsor Framework which allows the EU to take unspecified “appropriate remedial measures” in the event of “divergence between Northern Ireland and Ireland (and the broader EU)"".

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••• SO WHAT DO THE PARTIES SAY? •••

• UUP MLA Tom Elliott says of the Stormont Brake that “I don’t think it’s going to be the most effective”.

That’s because it is “so complex”, is restricted only to planned EU laws which would have a “significant impact”, and requires “getting it past the Westminster government”.

"There’s a high bar at almost every level to be satisfied,” he said

“I just find the threshold is so high at every level it’ll be very difficult to get anything brought through the entire process.”

• DUP MP Ian Paisley said the Stormont Brake was subject to caveats making it almost useless.

He likened it to having a handbrake under the spare wheel in the boot of a car, adding: “If a handbrake is out of reach and impossible to use, it's not a handbrake.”

• Fellow DUP MP Sammy Wilson meanwhile has said: “The Stormont brake is not really a brake at all. It’s a delaying mechanism.”

He said the UK Government would have the final say over whether to veto a law, which it would be reluctant to do because “the price of that would be that the EU would take retaliatory action”.

• And DUP Lord Nigel Dodds said: “The cross-community vote under the Stormont brake does not veto the law. It does not give the right to the Assembly to change anything, and that is the fundamental difference.”

• Claire Hanna of the SDLP meanwhile has said she is concerned about the “vexatious use of the Stormont brake” and wants the government to curb this.

• Alliance’s Stephen Farry said that “my party has massive concerns about this potential Stormont brake”.

Pulling it “could add more instability into the Assembly, and may I stress to him that the petition of concern is controversial, given its abuse in the past?”

• Hugh Bennett, former special advisor to Boris Johnson and Liz Truss lamented the brake on the website Conservative Home, saying: “Given Whitehall’s general institutional aversion to confrontation with the EU, the chances of this mechanism being used in practice are remote.”