Windsor Framework Committee: Officials warn of Stormont Brake 'divergence or trivergence' risks

The issue arose after a question from the DUP’s Joanne Bunting – who asked an official what would happen in circumstances where the Stormont Brake is applied. 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. So there is in theory this potential.

"And academics have done quite a bit of work on it – for there to be dual divergence or trivergence. Where NI finds itself in a position where the regulations that apply here – only apply here. And neither apply in GB nor in the EU”.

Mr Gill said that while the committee is doing exactly what it is intended to do in the legislation – officials needed to draw attention to the potential of divergence or trivergence so that members could make informed decisions.

Sinn Fein’s Emma Sheerin asked if in some circumstances the application of the Stormont Brake could be worse than the alternative and “we could be leaving ourselves behind”. Mr Gill said the point officials are making to the committee is that it is important that “you have all this information. That you have the full picture about what are the consequences of any decision”.

He said that nothing prevents 30 MLAs from pulling the brake, but members would now be better informed about whether they wish to apply the brake.

TUV leader Jim Allister said: “Trivergence, as expounded at today’s Windsor Framework committee... is a demonstration of both the folly of the UK’s surrender of sovereignty to Brussels over the laws governing our goods economy and of the impotence of the Stormont Brake.

“If all the Stormont Brake can achieve is to leave us stranded under old EU law, because the UK ceded sovereignty to Europe to make such laws and, therefore, can’t fix resulting anachronisms, then, the threat of Trivergence will become a powerful disincentive to object to new foreign laws and instead the impetus will be to just go along with whatever laws are made and changed by the EU!

“The Stormont Brake then turns out to be a clever device to induce the retention of all evolving EU law, as being left in limbo and alone under old EU law will present as ‘the worst of all worlds’.

“All of this flows from the folly of the Donaldson Deal accepting the continuance of the vast plethora of hundreds of EU laws in Annex 2 of the Protocol. Now, we are trapped whatever way we turn. Well done Jeffrey!”

The issue was first reported in the News Letter in early January, when the UUP’s Tom Elliott told the News Letter that officials had warned him that if the brake is applied Northern Ireland will – in certain circumstances – have different regulations from both the rest of the UK and the EU. He said that would leave NI in “limbo” – and that the mechanism is “beyond unworkable” and had been “mis-sold”.

The Stormont Brake was seen as a way of delivering a limited form of democratic input from NI politicians into the post-Brexit trade arrangements set up under the protocol. Unlike EU member states, NI has no formal say on drawing up the Brussels regulations which apply here.

Under the original NI Protocol - changes to EU rules on customs, goods and agriculture applied automatically in NI. The brake – introduced under the Windsor Framework – was an attempt by the government to provide some say for Stormont politicians on whether certain individual EU laws should apply. It means that if 30 MLAs from at least two parties object to a particular EU rule the UK government could – in theory – permanently veto it.

But today’s evidence in the committee highlight that as a high-risk strategy, potentially leaving Northern Ireland isolated.

In the meeting, Joanne Bunting also asked if the UK government or NI Assembly could legislate to fill any gap in regulation if the brake was pulled and there was ‘trivergence’. Mr Gill said: “The existing law within the Windsor Framework would continue to apply. And it wouldn’t be within the competence of the Assembly to legislate in a way that was inconsistent with the laws that are set out in the Windsor Framework. Those laws are changed as a result of what the joint committee agree. The Assembly would have the ability through an applicability motion to agree those laws should be changed and the UK government then would be obliged” to raise them in the joint committee.

DUP MLAs Jonathan Buckley and Joanne Bunting wanted the divergence and trivergence issue clearly highlighted in a letter from the scrutiny committee to the first and deputy first ministers and MLAs. Officials said the letter could be amended to include an explanation of the risks of divergence and trivergence.

Sinn Fein chair Phillip McGuigan said the committee was not there to renegotiate any agreements – and that it would carry out reports based on the evidence before it.

The committee has been hailed as an important part of democratic scrutiny mechanisms by the government and DUP.

It will be able to raise concerns about Brussels legislation on issues such as goods regulations. Politicians at the Assembly can ask the UK government to halt laws they are not comfortable with.

However, they have no input into how the laws are made.

The TUV’s Jim Allister said this week that he wanted a place on the committee but did not get one because the larger parties were involved in a ‘carve up’ to keep him off it. The DUP described that as “nonsense” and said it shows “how individual members can’t secure the influence that a larger party can”.