Government rejects request to pull Stormont brake

The government has rejected a request from Northern Ireland’s unionist parties to use the post-Brexit mechanism known as the Stormont brake.

It allows members of the legislative assembly (MLAs) at Stormont to object to changes to European Union rules that apply in Northern Ireland.

All eligible unionist MLAs had backed a Democratic Unionist Party (DUP) motion to pull the brake in a bid to stop changes to EU rules on packaging and labelling of chemicals.

But the UK government, which decides whether the brake is formally triggered, concluded the tests for using it had not been met.

It said the EU rules being challenged do not meet the threshold of having a “significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.

Northern Ireland Secretary Hilary Benn has written to the Speaker of the assembly, Edwin Poots, outlining why the Stormont Brake was not being pulled.

Unionist politicians, including Democratic Unionist Party (DUP) leader Gavin Robinson, have criticised the decision while First Minister, and Sinn Féin vice-president, Michelle O’Neill called for pragmatism.

The brake formed part of an overall package of measures – known as the Windsor Framework – agreed by the UK and EU two years ago, aimed at resolving problems with post-Brexit trade arrangements in Northern Ireland.

The framework is the special Brexit deal which applies to Northern Ireland and means it continues to follow some EU laws relating to goods.

The brake was designed to give Stormont’s politicians a greater say before any amended EU rules could take effect in Northern Ireland.

In his seven-page letter, Benn outlined his reasons for not pulling the Stormont Brake, including:

• There was “already existing divergence” in labelling for chemicals in Northern Ireland compared to Great Britain. Benn said these differences “have never been raised with the government as creating difficulties”.
• The “overwhelming majority” of businesses in the UK internal market also trade with the EU market, and would “be in a position to continue to place their products on the Northern Ireland market”.
• Indications from industry suggest routine labelling changes are made on average every 30-36 months, suggesting that most businesses “are likely to undertake routine labelling changes”.

Benn concluded that the requirements “would not lead to significant impacts specific to the everyday life of communities in Northern Ireland in a way that would be liable to persist”.

The secretary of state said the government would “take any future steps necessary to avoid new barriers arising” from the EU rules.

“To this end we will consult on how best to safeguard the UK internal market, including on whether to apply a consistent regime across the UK,” he said.

“This reflects the strong shared interest between those bringing this notification forward and the government in protecting the UK internal market.”

The Northern Ireland secretary thanked unionist MLAs for their “genuine and sincere consideration of the issues”.

“It is right that elected representatives in Northern Ireland have the opportunity to raise concerns about the application of these measures and look to do everything possible to avoid significant impacts on the constituents they represent,” he wrote.

DUP leader Gavin Robinson said the government’s decision not to activate the Stormont Brake is “wrong”.

“There are elected representatives in Parliament and the NI Assembly who close their eyes to the impact divergence is and will have. This is utter foolishness,” he said.

First Minister Michelle O’Neill called for pragmatism following the UK government’s decision.

“Let’s not have stop-start – let’s create the stability and the certainty that the business community would require,” the Sinn Féin vice-president said in the assembly.

She added: “Let’s be pragmatic about it, instead of grandstanding or trying to be overtly political about it.

“We are where we are because we have been taken out of Europe against our wishes – that’s my personal view. And we have to deal with the consequences in a post-Brexit world.”

Ulster Unionist Party (UUP) assembly member Steve Aiken said the government’s decision “fundamentally undermines the safeguards that are supposed to be in place”.

“Northern Ireland is far from being in the ‘best of both worlds’ and Hilary Benn had an opportunity to actually examine the impact of this divergence,” he said.

“He has demonstrably failed at this first hurdle.”

Alliance Party deputy leader Eóin Tennyson warned against the Stormont Brake being “abused”.

“Where there are issues arising from an EU regulation, this should be addressed at the earliest possible opportunity through engagement between the UK Government and the European Commission,” he said.

“Ultimately, it is only through closer alignment and cooperation between the UK and the EU that the impact of Brexit will be mitigated.”

Social Democratic and Labour Party (SDLP) leader Matthew O’Toole, leader of the Stormont assembly’s opposition, said debate around the Stormont Brake was a “distraction”.

He said there was “huge potential” for Northern Ireland “to benefit from our relationship with Europe”.

“Instead of continual debate around the Stormont Brake, we need the secretary of state and the UK government to engage with the EU around a permanent solution that recognises Northern Ireland’s unique position and allows us to make the most of dual-market access,” he added.

Traditional Unionist Voice (TUV) leader Jim Allister said the decision was “not just a calculated slap in the face of all democrats but creates a moment of truth for the DUP”.

“The secretary of state has thrown down the gauntlet to the DUP,” he said.

“They need to pick it up and demonstrate, while they still can, that unionism will not be humiliated in this way.

“It’s time to call time on the executive and the DUP’s implementation of EU rule.”

The framework is the special Brexit deal which applies to Northern Ireland and means it continues to follow some EU laws relating to goods.

The brake was designed to give Stormont’s politicians a greater say before any amended EU rules could take effect in Northern Ireland.

Entirely new rules are dealt with under a similar process known as an applicability motion.

The move by unionist parties before Christmas is being viewed as a first test of the mechanism since power-sharing returned at Stormont almost 12 months ago.

There are restrictions on its use for assembly members who wish to use the brake.

Firstly, the measure can only be used in the “most exceptional circumstances and as a matter of last resort”.

The mechanism also cannot be used for “trivial” reasons and those seeking it to be pulled must demonstrate that the rule being challenged is having a “significant” impact on everyday life in Northern Ireland.

Unionist parties had a two-month “scrutiny period” from the publication of the EU law to make their request and for the government to respond, making Monday the deadline for a decision by Northern Ireland Secretary Hilary Benn.

If the government had determined the conditions were met, it would have formally notified the EU and the changed law would not apply.

There would then have been “intensive consultation” between the UK and EU.

The Joint Committee – the UK-EU body responsible for overseeing the Brexit deal – would be required to discuss the rule in question.

Once those discussions concluded, the UK government could either send it back to the assembly for a cross-community vote or decide the rule should not apply in Northern Ireland.

At that stage, the government could still avoid a Stormont vote if it assessed there were “exceptional circumstances” including an assessment that the rule would not create a new regulatory border between Great Britain and Northern Ireland.

If the UK decided not to adopt the rule, the EU could take “appropriate remedial measures”, which could include measures to address the fact that NI goods may no long fully comply with EU law.