The Stormont Brake – What Can We Learn from the Swiss–EU Relationship?

Key Points

• The purpose of the Stormont Brake is to stop the automatic application of new EU customs, goods, and agricultural rules in Northern Ireland when they significantly impact everyday life in Northern Ireland.
• The Windsor Framework provides an opportunity to protect Northern Ireland’s parliamentary and UK sovereignty whilst implementing the EU-UK Protocol on Northern Ireland.
• The vague application conditions and shallow consultation rules may either help the UK Government to implement the Stormont Brake or help it to prevent its use.
• As long as Northern Ireland’s goods have free access to the EU single market, the UK will inevitably face sovereignty issues arising from regulatory differences.
• The UK Government could create a third-party dispute settlement system (i.e., an ad-hoc arbitration tribunal) for the pre-veto scrutiny process. This system would bridge the gaps in the institutional provisions of the Windsor Framework in interpreting and monitoring the implementation of the NI Protocol, thereby reducing the use of the Stormont Brake.

The Windsor Framework, agreed on 27 February 2023, is a crucial breakthrough in overcoming the practical challenges of the EU-UK Protocol on Northern Ireland (NI Protocol). Within this framework, the Stormont Brake acts as an emergency mechanism to protect Northern Ireland’s parliamentary sovereignty, but it is also the most controversial part of the Framework. While PM Rishi Sunak highlighted the Stormont Brake’s value in stopping the automatic implementation of EU Goods laws in Northern Ireland, Ursula von der Leyden, President of the European Commission, emphasized the mechanisms in the Windsor Framework to avoid having to resort to the Stormont Brake (Please see the press conference).

While Members of Parliament (MPs) have voted to accept the Stormont Brake, misunderstanding its implications for protecting Northern Ireland’s parliamentary sovereignty could distort the Democratic Unionist Party (DUP) decision about whether to accept the political solution offered by the Windsor Framework. The current deal, while not meeting any side’s aspirations completely reflects the fact that perfection is not possible in this situation. What it does, however, is still extraordinary: it provides an opportunity to protect Northern Ireland’s parliamentary and UK sovereignty, by securing significant concessions on both sides. As we will see in the analysis below, it is almost impossible for the UK to get a better result in the negotiations with the EU on preventing the EU from automatically enforcing new laws in Northern Ireland.

Switzerland has also tried to prevent the encroachment of economic integration on legislative sovereignty in its approach to European relations. This encroachment is precisely the issue with the NI Protocol and what the Stormont Brake in the Windsor Framework seeks to address. This Briefing Paper draws on the Swiss-EU relationship experience to share some reflections on the Windsor Framework and the Stormont Brake.

It is worth noting that the conditions negotiated between the UK Government and the EU will make it difficult for the Northern Ireland Assembly to meet the requirements to trigger the Stormont Brake. First, the Windsor Framework’s conditions for using the Stormont Brake are (legally) hollow. There is no clear definition in the text of the Windsor Framework of what constitutes a ‘significant difference between the old and new rules’ and what constitutes a ‘significant impact on everyday life.’ In addition, a more precise explanation is needed as to how the UK Government will determine whether the significant impact of the new rules on everyday life is liable to persist. Under the current text, the UK Government will have tremendous powers to interpret these key criteria. Paragraph 62 of the Windsor Framework states that the UK Government will consult with stakeholders to ensure that the Stormont Brake is deployed only as a mechanism of last resort to address these issues. However, specific measures, including consultation, have yet to be developed. The vague conditions of application and shallow consultation rules in the text may either help the UK Government to implement the Stormont Brake or help it to prevent its use. This uncertainty may increase the DUP’s concerns about the Stormont Brake. The UK Government very evidently wants the DUP to accept the proposed Windsor Framework and restore the Northern Ireland Assembly, which is not currently operational, and it could help that process by introducing detailed rules with the EU as soon as possible to explain the application and consultation rules further.

Moreover, paragraph 66 of the Windsor Framework states that the EU may take appropriate remedial measures to deal with the consequences of regulatory differences on its markets arising from the permanent rejection of the new EU rules. The above statement is undoubtedly intended to discourage the use of the Stormont Brake and would create significant political pressure on the Northern Ireland Assembly not to trigger the Stormont Brake. Considering all the above, the Stormont Brake’s practical value has limits.

Managing the flow of goods between Northern Ireland and Ireland is a significant challenge arising from Brexit. The UK and the EU each have their own concerns on this issue. On the one hand, the UK needs to uphold Northern Ireland’s integral place in the UK and its internal market; this should imply all interactions between territories within a unified state, such as the free movement of people and goods. On the other hand, the UK needs to avoid a hard border on the island of Ireland and support North-South cooperation, which means that there can be no border checks on goods or people between Northern Ireland and Ireland. However, the EU needs to set up rules to prevent non-compliant goods from entering the Republic of Ireland and the rest of the EU single market from Northern Ireland through a border with no checkpoints.

How can the conflicting needs of the EU and the UK be met? The solution was to establish a border between Northern Ireland and the rest of the UK territory (i.e., on the Irish Sea) to inspect goods coming into Northern Ireland. Article 5 of the NI Protocol requires suppliers to demonstrate that goods will not subsequently enter the EU single market - following EU-approved criteria - before transporting goods from Great Britain into Northern Ireland. These cumbersome customs measures have erected serious trade barriers, severely impeding the free movement of goods between Northern Ireland and the rest of the UK and causing severe disruption to the daily lives of Northern Ireland citizens.

Apart from provisions removing existing trade barriers, the Windsor Framework sets up the Stormont Brake to address a democratic deficit (i.e., the inability of the Northern Ireland Assembly to decide on some of the measures that significantly impact the daily lives of Northern Ireland citizens). This mechanism aims to be a permanent solution to trade barriers caused by the differences between UK and EU rules. As noted above, under the original NI Protocol, goods entering Northern Ireland from the UK must meet EU-approved conditions. What is more, the EU can change and automatically apply these rules in Northern Ireland (see Article 13(3) of the NI Protocol). The Stormont Brake in the Windsor Framework is designed to address the democratic deficit by giving the Northern Ireland Assembly the power to veto such rules. Therefore, the Stormont Brake’s value lies in upholding the Belfast Agreement’s principle: that nationalists and unionists manage the affairs of Northern Ireland by democratic consensus in the Assembly.

However, as noted above, the UK Government and the EU have set a high threshold for applying the Stormont Brake in the Windsor Framework making it difficult for the Northern Ireland Assembly to actually launch the Stormont Brake to stop the application of EU law in Northern Ireland. Furthermore, given that the EU is actively reforming its domestic laws, it is highly likely that the Northern Ireland Assembly will often find it difficult to decide whether to trigger the Stormont Brake.

However, one can hardly imagine the Northern Ireland Assembly regularly pushing the ‘nuclear button’ to require the UK government to implement this mighty power. If the Northern Ireland Assembly cannot easily launch the Stormont Brake, the mechanism, which aims to provide timely democratic oversight, will not achieve its ostensible legislative purpose.

The Swiss-EU relationship is extraordinary. Unlike other countries signing an overarching agreement to join the EU, Switzerland signed sectoral agreements to develop its bilateral relations with the EU. These bilateral agreements consist of two batches. The first signed in 1999 includes the free movement of people, air traffic, agricultural products, technical trade barriers, public procurement, and science. The second, signed in 2004, includes security and asylum and Schengen membership, cooperation in fraud pursuits, and final stipulations in open questions about agriculture, environment, media, education, care of the elderly, statistics and services. The second group of agreements contains a particular clause stating that if any deal is renounced or not renewed, they all cease to apply. Switzerland has used this cherry-picking approach to secure a single market status while maintaining its independence from the EU.

However, life is like a box of chocolates. Switzerland had to accept unwanted elements to gain more access to the single market. For example, Switzerland’s restrictions on the free movement of people disqualified it from participating in Horizon 2020 and Erasmus+. What is more, the EU closed negotiations on any further opening of the single market, including the electricity market and stock exchange equivalence to Switzerland, when the Swiss Federal Council unilaterally terminated the talks on the EU-Swiss Institutional Framework Agreement (IFA). The IFA bundled into one instrument the agreements on the free movement of people, air transport, carriage of goods and passengers by rail and road, trade in agricultural products, and mutual recognition of industrial standards.

Like the Windsor Framework, the automatic alignment of EU law is an essential element of the drafted EU-Swiss IFA. When the EU adopts new legal rules, the EU must notify Switzerland of the corresponding changes (See Article 13 of the IFA). Upon receipt of the notification, Switzerland has the right to challenge the automatic implementation of the new EU rules in Switzerland on the grounds that it must satisfy its constitutional obligations, including the referendum. The most likely example, in reality, would be a request by Switzerland for a referendum to decide whether the Swiss government accepts the implementation of the newly enacted EU laws/regulations in Switzerland. However, an objection by the Swiss government cannot immediately and unilaterally terminate the implementation of new EU rules in Switzerland.

Article 14 of the IFA provides for an interim implementation clause. This clause allows the EU to temporarily implement new EU laws/regulations in Switzerland while the latter is exercising its constitutional procedures (e.g., a referendum). And it stipulates that implementing Switzerland’s constitutional obligations cannot normally take more than two years. In the case of a referendum the process can take up to three years. If Switzerland wishes to terminate the implementation of new EU rules on its territory immediately, it must give reasons to the EU. The IFA’s draft text does not stipulate specific criteria for the determination. This rule means that, in general, Switzerland cannot unilaterally and immediately stop the automatic alignment of EU laws/regulations in its territory.

In contrast, while providing for activation conditions, the Stormont Brake allows the UK Government to immediately terminate the implementation of EU rules in Northern Ireland at its own discretion. If the Swiss Government wishes to avoid aligning with EU laws/regulations, the best-case scenario for the Swiss Government would be for the EU to agree to its going through the entire three-year referendum process. In this way, Switzerland could put its dispute with the EU on hold for three years. But if the referendum rejects the EU law/regulations, Switzerland would lose all of its negotiations with the EU under the IFA. The consequences of using the Stormont Brake would be much less severe. The EU is only allowed to take remedial measures to compensate for the differences between the new and UK rules. Arguably, the EU made significant concessions in negotiating the Windsor Framework with the UK, not only ensuring that the UK can unilaterally and immediately terminate the implementation of EU rules in Northern Ireland but also significantly reducing the consequences that the UK government would have to suffer if the new EU laws/regulations were banned.

Switzerland rejected the IFA for reasons similar to the DUP’s rejection of the original NI Protocol; signing it would automatically align Swiss laws with EU ones in the corresponding areas. Switzerland’s direct democracy (i.e., the tradition of enacting laws by referendum) and neutrality prevent it from making concessions on parliamentary sovereignty.

The consequences of terminating the negotiations are already bitter. What is worse is that Switzerland has no opportunity to strengthen its alignment with the single market than to wait for a political opportunity to re-open a framework agreement negotiation, if indeed, it can maintain its current status that long.