The UK government will announce this afternoon whether it will apply the Stormont Brake - but what does it mean?

What is the Stormont Brake?

It’s a mechanism introduced by the EU and UK under the Windsor Framework, in a bid to provide some small level of democratic input for Northern Ireland politicians into the laws that govern trade arrangements here.

It provides an ability for 30 MLAs (from more than one party) to raise an objection to amended EU laws set to be applied automatically here, because Northern Ireland remains, in effect, inside the EU single market for goods, and has no way to directly contribute to how those laws are made.

It was hailed by the DUP as a part of safeguards it said “cut the pipeline” of EU law, but has been branded “beyond unworkable” by the UUP and “useless” by the TUV.

Last week, the First Minister Michelle O’Neill said the mechanism served to “disrupt”.

In this instance, it has been triggered by MLAs from the DUP, UUP and TUV who object to new EU rules requiring additional labelling on goods entering Northern Ireland from Great Britain.

It deals with amendments to existing EU rules, and is a separate process from the ‘applicability motion’ mechanism – which deals with entirely new rules.

Why have unionist MLAs attempted to pull the Stormont Brake?

It relates to new rules on the way chemicals will have to be labelled when going from GB to Northern Ireland.

DUP leader Gavin Robinson said at the time: “This EU regulation introduces a host of new requirements for labels attached to chemical products, including new minimum font sizes and rules around spacing. This would make current labels unusable for the majority of products.

“Critically, these changes would not be required for products on the market in Great Britain. The Chemical Industries Association (CIA), which represents chemical and pharmaceutical companies across the United Kingdom, has assessed that the regulation would have a significant, negative and prolonged impact on everyday life in Northern Ireland”.

What’s the bar for the Brake being applied?

MLAs must explain how the notification is being made in “the most exceptional circumstances and as a last resort, having used every other available mechanism”, as well as how the content or scope of the amended or replaced EU law “significantly differs” from the original law; and its application “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.

It also requires them to demonstrate that they have “sought prior substantive discussion with the UK Government and within the Northern Ireland Executive to examine all possibilities in relation to the Union act; taken steps to consult businesses, other traders and civic society affected by the relevant Union act; and made all reasonable use of applicable consultation processes provided by the European Union for new Union acts relevant to Northern Ireland”.

Unionist MLAs have provided their explanation – but it’s now in the hands of the Secretary of State for Northern Ireland to decide whether that threshold has been met.

What if the government agrees with the decision to trigger the Brake?

If the UK government is satisfied that the conditions have been met, it notifies the EU via the Joint Committee which implements the Windsor Framework.

The government has to set out its rational for the decision – and the EU can require greater clarification of the British position.

The EU law will not apply in Northern Ireland in its new form two weeks later (or three days after the UK has provided any further explanation).

However…

This can create a problem in itself as the older (unamended) version of the EU law will still apply.

A situation could emerge where Great Britain has changed its regulations – or not aligned with the European Union’s updated legislation. That would leave Northern Ireland with old EU regulations – while the EU proper and the rest of the UK would each have their own, leaving the province in a regulatory ‘no mans land’.

Last year, in the first meeting of Stormont’s Windsor Framework committee, Stormont committee tasked with scrutinising EU law here, an official warned of this consequence of using the Stormont Brake. Paul Gill confirmed that the new amended EU law would not apply – but that the existing EU law would continue. He said: “There is the potential – in circumstances where the rest of the EU follows a different law but NI is having to retain the previous EU law that nobody else actually has to abide with. The other issue that we noted is the potential for GB to have diverged from that position as well”.

UUP MLA Tom Elliott said that evidence confirmed his view that the Stormont Brake mechanism is “beyond unworkable”.

The EU retains the right to take “appropriate remedial measures” even if the UK government accepts Stormont’s decision. This may have an impact on trade in Northern Ireland in the affected sectors.

What if the government blocks the request to halt EU legislation?

The new EU legislation will apply in Northern Ireland.

While that issue is then dealt with, it will create a political problem – as unionists will question the value of a mechanism which has failed – from their perspective – at the first hurdle.

DUP leader Gavin Robinson warned that the new rules on labelling of products could cause further trade divergence between Northern Ireland and the rest of the UK. He also highlighted the view of the Chemical Industries Association (CIA), which he said “has assessed that the regulation would have a significant, negative and prolonged impact on everyday life in Northern Ireland”.

Sinn Fein, Alliance and the SDLP will be pleased with such a decision – because they are supportive of the current arrangements and are content with the ability of the EU to legislate here on trade matters without any local democratic input.

Last week, ​First Minister Michelle O’Neill criticised the DUP for using the mechanism – accusing them of doing it “without informing anybody” – and claiming “these handbrakes or whatever they’re called” serve to disrupt.

Former DUP leader Jeffrey Donaldson had claimed that his party had secured a mechanism in the Stormont Brake that means “EU law no longer automatically applies in Northern Ireland” – claiming "we have cut the pipeline” of new EU laws.

Speaking on the BBC Nolan Show in December, TUV leader Jim Allister questioned what the DUP would do next if the Secretary of State blocked their request. “Because, having told us they've cut the pipeline [of EU laws], having told us they've devised a mechanism that could stop EU law, if it proves they can't and the Stormont Brake does not work, then what do they do?” He suggested the party should quit the Executive.

While there is no prospect of the DUP collapsing the institutions over the issue – it is a political problem for the party that it, and Stormont, appears impotent in the face of UK and EU decisions, despite having claimed to have secured important safeguards.