‘Stormont Brake’ a powerful tool that will lock unionists into NI Assembly

Late former US president Richard Nixon is purported to have believed in the madman theory of negotiating. Under this approach, it was considered an advantage if those on the other side perceived you to be irrational and volatile, as they might then give concessions beyond those that a reasonable person would have accepted.

Former British prime minister Boris Johnson’s approach to the Brexit negotiations appeared to draw significant inspiration from this way of doing things. By behaving in a way which was unreasonable and which violated the established norms of international deal-making, Johnson may have hoped to wring more concessions from the EU than might otherwise have been the case.

Thus, Johnson signed the Brexit deal that clearly created a trade border for goods in the Irish Sea, then denied doing so, before moving on to announce that he planned to pass legislation in Westminster to repudiate unilaterally the commitments he had undertaken.

This approach had high costs for the broader reputation of the UK as a trustworthy actor in international relations, but Johnson must have hoped that, in the narrow context of this specific negotiation with the EU, it would produce more concessions than the British government might otherwise have been able to achieve.

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However, it appears that, even in the narrow terms of the Brexit negotiations, British prime minister Rishi Sunak’s dedication to an approach that appeared more reasonable and trustworthy has gained far more concessions from the EU than Johnson’s “madman” tactics.

[ Windsor Framework: Deal will make positive difference to people in Northern Ireland, Sunak says ]

Johnson’s threats to repudiate the Northern Ireland protocol unilaterally produced a tough response from the EU, which threatened to cancel the broader Trade and Co-operation Agreement reached between the EU and UK.

Sunak, on the other hand, by accepting the fundamental principle of the protocol – namely that Northern Ireland would remain subject to European law in relation to trade in goods – has achieved an unexpected degree of flexibility from the EU.

Some elements of the deal were expected. A Green Channel is being established under which goods from Great Britain destined to be sold in Northern Ireland and which will not move on to the Republic can enter the North with a minimum of checks.

Also expected was the fact that the jurisdiction of the European Court of Justice as the final interpreter of EU law, as it applies to Northern Ireland, remains intact. Indeed, the DUP demand that the ECJ jurisdiction be removed was never feasible, as it would have been illegal under EU law.

The most surprising element of the deal relates to the “Stormont Brake”. This part of the agreement is intended to address the problem of the democratic deficit inherent in the application of EU goods law to the North when, due to Brexit, Northern Ireland no longer has representation at either the EU Council of Ministers or the European Parliament.

[ Windsor Framework: How the new deal on the Northern Ireland protocol will work ]

While some kind of consultation mechanism allowing of Northern Irish politicians to feed into EU lawmaking had been expected, the Brake goes much further. It allows 30 Members of the Stormont Assembly to object to new laws proposed by the EU in areas governed by the protocol. This objection will then give the UK government the right to veto the application of new EU rules in Northern Ireland.

The agreement is clear that the Brake cannot be used for what it terms “trivial reasons”, and explains that the new rules must be “significantly different” from what went before and must have a “significant impact specific to everyday life”. Any disputes in relation to the Brake will be judged not by the European Court of Justice, but by an arbitration panel.

Given how badly Johnson behaved, the EU may have been so relieved to find themselves with a more trustworthy partner in Sunak that they were willing to really stretch themselves

Importantly, the Brake only operates if Stormont is up and running, thus making the ability of the DUP to block new laws contingent on their agreement to resume powersharing.

The Brake is quite a concession by the EU. It opens the possibility that unionists in the Assembly can successfully block new EU legislation in areas covered by the protocol from being applied in Northern Ireland. This would mean there would be divergence between the applicable laws in the Republic and the North, and a danger to the integrity of the Single Market that could require some kind of monitoring on the Irish Border.

There is also the risk that if the UK government proceeds with its plan to scrap much of the EU law that it kept in place back in 2020 and to embark on a spree of deregulation, the risk of undermining the integrity of the Single Market will rise significantly.

[ DUP must think quickly as protocol deal puts its holding pattern under pressure ]

However, the Single Market in goods was largely complete by 1993, so the amount of new legislation likely to have a “significant impact on everyday life” will be low.

Given how badly Johnson behaved, the EU may have been so relieved to find themselves with a more trustworthy partner in Sunak that they were willing to really stretch themselves to be flexible in the latest negotiations.

After all, as the UK government’s own document recognises, Brexit is already leading to significant divergence on Northern Ireland in areas such as services that are not subject to the protocol. These changes will also lead to further divergence in the areas covered by the protocol given that they envisage that Northern Irish shops will be stocking goods that cannot be moved on to the Republic and may even be banned in the EU.

[ Fintan O’Toole: DUP must confront the truth that its own actions detached North from British mothership ]

Perhaps therefore the madman strategy has had some success, though it will no doubt be maddening for Johnson that the beneficiary is not the madman himself but his more trustworthy successor.

Ronan McCrea is Professor of Constitutional and European Law at University College London