My Lords, the Stormont brake is at the heart of the Windsor Framework. In the view of His Majesty’s Government, it addresses the democratic deficit, restores the balance of the Belfast agreement and ends the prospect of dynamic alignment. It restores practical sovereignty to the United Kingdom as a whole and to the people of Northern Ireland in particular.
In a democracy, people should have a say over any change to the laws under which they live but, under the old protocol, that was not the case, as noble Lords from Northern Ireland have frequently pointed out in this House. Changes to laws were automatically imposed on Northern Ireland whether it wanted them or not, and I, like many in this House, found that an unacceptable state of affairs.
The Stormont brake not only ends that situation but ensures that changes to rules and regulations have the consent of both main community designations in the Northern Ireland Assembly, asserting a fundamental principle of the Belfast agreement. The process works as follows: once an amendment to existing EU law within the scope of the Windsor Framework has been adopted, this will be notified by the United Kingdom Government to the Northern Ireland Assembly. The brake is triggered if, within two months of notification, 30 MLAs from two or more parties object to an amending rule or regulation. These MLAs can be from the same community designation so, in theory and in practice, they can come from two or more unionist parties or two nationalist parties. The exercise of the brake will require no other process and no vote in the Assembly. Once the brake has been pulled, the law will automatically be disapplied in Northern Ireland after two weeks. The EU could challenge the use of the brake only through international arbitration after the law had been suspended, where the bar to overturn it would be exceptionally high.
In our view, the Stormont brake is one of the most significant changes that my right honourable friend the Prime Minister has secured. It is a robust change that gives the United Kingdom a veto over dynamic alignment with EU rules. Just as importantly, the regulations put the democratically elected representatives of the people of Northern Ireland in charge of whether and when that veto will be used.
The old protocol had some measures aimed at giving it democratic legitimacy; for example, the Government had—and still retain—a veto over any new laws that the EU wanted to add to the protocol. However, that veto did not extend to amendments to laws that are already here. Crucially, there was no role for the Northern Ireland Assembly in deciding whether and when to use the veto. Of course, the old protocol also contained a democratic consent mechanism as a means of giving the Assembly the right to end the application of its Articles 5 to 10. Those measures are maintained in the Windsor Framework but they were not in themselves enough to address the democratic deficit, as my noble friend Lord Dodds of Duncairn and others have pointed out to your Lordships’ House many times.
To address that, the regulations will add a new democratic scrutiny schedule to the Northern Ireland Act 1998 to codify the brake in domestic law. There will be a binding statutory obligation in domestic law on Ministers to pull the brake when a valid notification is provided by 30 or more MLAs. The UK Government must notify the EU when a valid notification of the brake has been provided by MLAs. This is an important new function for Members of the Assembly. It is vital that they can exercise this new function with the right information and expertise, which is why these regulations also provide for a Standing Committee of the Assembly to scrutinise the relevant rules properly.
Some have described these arrangements as tantamount to a consultative role for MLAs. The Government do not agree. In our view, this is a robust power for MLAs to stop the application of amended rules—a power that neither the UK Government nor the EU can override provided that the conditions in the framework are met. Some have also claimed that the EU must have some means of blocking the brake. These regulations are clear that the process is an entirely internal one for the United Kingdom; the process is firmly and unambiguously within strand 1 of the Belfast agreement, relating to the internal affairs of Northern Ireland. There is no role for any institutions outside the United Kingdom, whether the EU or anyone else, to determine whether the brake is pulled. It will be a choice for the United Kingdom and its sovereign Government alone, alongside elected MLAs, whether the brake is pulled.
Some also claimed that the Government might simply ignore the brake. These regulations make clear that the Government have no discretion and MLAs cannot be ignored. Valid notifications of the brake must be made to the EU, with the subsequent disapplication of any new law automatically after two weeks.
The Government’s actions will be subject to all the normal public law principles that attach to decision-making and cannot be abused for reasons of political expediency. For the avoidance of doubt, the regulations are clear that the prospect of remedial measures by the EU cannot be a relevant factor in the Government’s determination.
It is not enough simply to allow MLAs temporarily to halt the application of a rule but to allow the UK Government simply to override them when the joint committee decides whether the rule should be permanently disapplied. These regulations go much further and provide a clear, robust, directive role to determine whether the Government should use our veto or not.
The regulations are very clear: unless there is cross-community support in the Assembly, Ministers will be legally prohibited from accepting an amended or new EU law which creates a regulatory border between Northern Ireland and the rest of the United Kingdom, except in varying exceptional circumstances. To be clear, “exceptional circumstances” means just that; the threshold is very high and any Minister invoking exceptional circumstances must be able to defend that decision robustly and in line with normal public law principles. Moreover, a Minister must account to Parliament where they have concluded that exceptional circumstances apply or where they consider that a measure would not create a regulatory border.
In the view of His Majesty’s Government, this represents one of the strongest statutory constraints on the exercise of ministerial functions under any treaty codified in domestic law. These regulations could scarcely make it clearer: the overwhelming presumption is that, unless the Northern Ireland Assembly says yes, the United Kingdom Government must say no.
Finally, as with any international agreement, if the EU considers that the UK has pulled the brake improperly, it may choose to initiate a dispute. We need to be clear that any dispute could arise only after the rules have been disapplied in Northern Ireland and that the resolution of that dispute would be for an international arbitration panel. The European Court of Justice would have no role in resolving that dispute.
These regulations also make the case for functioning devolved institutions in Northern Ireland even more compelling. These measures will become operable only once the institutions are restored. The regulations give domestic legal effect to this democratic safeguard and restore the UK’s sovereignty. Without this measure, Northern Ireland would continue to have full and automatic dynamic alignment with EU goods rules, with no say for the Northern Ireland Assembly and no veto on amending or replacing measures. That is not a situation that I can support. Should we vote on this measure, I would urge all Members of this House to back an end to that full and automatic dynamic alignment. I therefore commend the regulations to the House and beg to move.
Amendment to the Motion