Mark Francois is MP for Rayleigh and Wickford and Chairman of the European Research Group.
Yesterday the ERG held a meeting at Westminster where the so-called Star Chamber, our team of expert lawyers, delivered their verdict after three weeks of pouring through the Windsor Framework and related documents in great detail.
The legal team, chaired by Sir Bill Cash MP and ably supported by Martin Howe KC, Barnabas Reynolds, and David Jones MP, was tasked by the Group to undertake a detailed legal audit of the Framework and related documents and to advise what their legal implications really are.
The ERG published the findings of the Star Chamber yesterday lunchtime.
In summary, the Star Chamber’s principal findings are: that EU law will still be supreme in Northern Ireland; the rights of its people under the 1800 Act of Union are not restored; the green lane is not really a green lane at all; the Stormont Brake is “practically useless”, and the Framework itself has no exit, other than through a highly complex legal process.
Later today, the House of Commons will have a 90-minute debate on a Statutory Instrument (which was only published on Monday) to implement the Stormont Brake However, some people in Government are talking this up as a vote in principle on the entire agreement.
The Government has attempted on multiple occasions to portray the Brake as an effective veto, via the Northern Ireland Assembly in Stormont, on the introduction of EU laws into Northern Ireland.
Chris Heaton Harris, the Northern Ireland Secretary, said in an interview with the BBC on the 9th of March 2023 that:
“When the Stormont brake is pulled, it will go to the UK EU joint committee where the UK government will be ‘bound’ to veto new EU legislation based on the conditions laid out in the papers which have been published.”
However, in giving evidence to the European Scrutiny Committee yesterday, he came under repeated pressure to explain exactly how the Brake would work in practice – something he clearly struggled to do.
The Star Chamber’s Report contains a convenient flow diagram on how the Brake is intended to work (reproduced at the top of this article).
Nonetheless, a verbal summary – from which I hope it will be obvious that the Brake is very different in reality from what has previously been claimed – would be as follows.
Firstly, it can only apply if Stormont is “up and running”. That means that were Sinn Féin to collapse the Assembly – perhaps because Unionists threatened to use the Brake – then it would cease to function.
Secondly, the Brake itself is only very limited in scope. It applies to EU laws relating to goods, but not to those relating to state aid, VAT, the majority of the customs measures, trade defence measures, and the electricity market.
Thirdly, the EU law must (assuming this is a law being amended) significantly differ in whole or in part from the contents or scope of the Union Act as applicable before being amended or replaced.
Fourthly, the EU law “must have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”; there are obvious definitional challenges on what would and would not actually qualify by this standard.
Fifthly, it can only be used in “exceptional circumstances”; even then, Secretary of State for Northern Ireland can refuse to accept it anyway, if he or she deems that “exceptional circumstances” apply. This Kafkaesque situation is a particularly pertinent point, especially if you consider future changes of government at Westminster.
Sixthly, HM Government would have to agree, in the UK/EU Joint Committee, that these tests have been met. Even then, they could still decide not to apply the Brake!
The UK/EU Joint Committee is meant to discuss any potential use of the Brake as urgently as possible. Yet even, after all this, if the UK minister in the Joint Committee did decide to exercise the Brake, the EU would still retain the right to object anyway.
Seventh, if the EU do object, then the matter has to be referred to an independent arbitration panel – at which the UK could eventually lose.
Thus this is not actually a veto at all. Rather, it is an opportunity to delay and then seek arbitration, all of which is highly complex and strongly caveated and in which the result could in any event be reversed.
Eighth, even if the UK were to win at the arbitration panel, the EU can then take “remedial measures”. In plain English, they can retaliate.
Ninth, even after all this, if the UK does decide to apply the Brake it is then required to conduct a near-term review of why it has done so and then report these conclusions to the EU via the Joint Committee, a process rather akin to being called into the Headmaster’s office for being a truculent pupil.
Taken together, it should be evident to the reader that this extremely complicated procedure is, in reality, practically useless – especially as there could be hundreds of revised, amended, or new EU laws every year.
In simple terms, the Brake has been designed to be so complicated and difficult to use that it is unlikely that it will ever actually be invoked at all.
As evidence of this: the design of the Brake is a highly restricted version of a process contained in the European Economic Area (EEA) Agreement; yet, over several decades, there has only been one attempt to use the EEA version of the Brake (by Norway in 2011, which was subsequently abandoned in 2013).
The dismal record of this less stringent procedure is strong, empirical evidence of just how weak the comparable version for Northern Ireland actually is.
The Government are clearly nervous that these weaknesses have been exposed, because the SI published on Monday contains an extra provision, which was not in the original Windsor Framework documents: to require an “applicability motion” to be passed by Stormont, but only for new EU laws (not revised or amended ones).
Nevertheless, ministers in London can still ignore this requirement in “exceptional circumstances”, so even this last-minute provision is effectively meaningless.
Later today, MP’s will be asked, after a 90-minute debate, whether not they wish to approve this procedure. Butt is already plain as a pikestaff that what was originally billed as a simple veto, following a straightforward decision by 30 MLA’s in the Stormont Assembly, is in reality immensely more complicated than that.
That is why the Star Chamber has declared the Brake “practically useless.”
It is of course up to every individual MP to decide how to vote this afternoon. But if they take the trouble to read our Report – or perhaps just this article and the associated diagram – it will hopefully be plain to them that what they are being asked to vote for is not what they were promised.
Mark Francois is MP for Rayleigh and Wickford and Chairman of the European Research Group.
Yesterday the ERG held a meeting at Westminster where the so-called Star Chamber, our team of expert lawyers, delivered their verdict after three weeks of pouring through the Windsor Framework and related documents in great detail.
The legal team, chaired by Sir Bill Cash MP and ably supported by Martin Howe KC, Barnabas Reynolds, and David Jones MP, was tasked by the Group to undertake a detailed legal audit of the Framework and related documents and to advise what their legal implications really are.
The ERG published the findings of the Star Chamber yesterday lunchtime.
In summary, the Star Chamber’s principal findings are: that EU law will still be supreme in Northern Ireland; the rights of its people under the 1800 Act of Union are not restored; the green lane is not really a green lane at all; the Stormont Brake is “practically useless”, and the Framework itself has no exit, other than through a highly complex legal process.
Later today, the House of Commons will have a 90-minute debate on a Statutory Instrument (which was only published on Monday) to implement the Stormont Brake However, some people in Government are talking this up as a vote in principle on the entire agreement.
The Government has attempted on multiple occasions to portray the Brake as an effective veto, via the Northern Ireland Assembly in Stormont, on the introduction of EU laws into Northern Ireland.
Chris Heaton Harris, the Northern Ireland Secretary, said in an interview with the BBC on the 9th of March 2023 that:
“When the Stormont brake is pulled, it will go to the UK EU joint committee where the UK government will be ‘bound’ to veto new EU legislation based on the conditions laid out in the papers which have been published.”
However, in giving evidence to the European Scrutiny Committee yesterday, he came under repeated pressure to explain exactly how the Brake would work in practice – something he clearly struggled to do.
The Star Chamber’s Report contains a convenient flow diagram on how the Brake is intended to work (reproduced at the top of this article).
Nonetheless, a verbal summary – from which I hope it will be obvious that the Brake is very different in reality from what has previously been claimed – would be as follows.
Firstly, it can only apply if Stormont is “up and running”. That means that were Sinn Féin to collapse the Assembly – perhaps because Unionists threatened to use the Brake – then it would cease to function.
Secondly, the Brake itself is only very limited in scope. It applies to EU laws relating to goods, but not to those relating to state aid, VAT, the majority of the customs measures, trade defence measures, and the electricity market.
Thirdly, the EU law must (assuming this is a law being amended) significantly differ in whole or in part from the contents or scope of the Union Act as applicable before being amended or replaced.
Fourthly, the EU law “must have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”; there are obvious definitional challenges on what would and would not actually qualify by this standard.
Fifthly, it can only be used in “exceptional circumstances”; even then, Secretary of State for Northern Ireland can refuse to accept it anyway, if he or she deems that “exceptional circumstances” apply. This Kafkaesque situation is a particularly pertinent point, especially if you consider future changes of government at Westminster.
Sixthly, HM Government would have to agree, in the UK/EU Joint Committee, that these tests have been met. Even then, they could still decide not to apply the Brake!
The UK/EU Joint Committee is meant to discuss any potential use of the Brake as urgently as possible. Yet even, after all this, if the UK minister in the Joint Committee did decide to exercise the Brake, the EU would still retain the right to object anyway.
Seventh, if the EU do object, then the matter has to be referred to an independent arbitration panel – at which the UK could eventually lose.
Thus this is not actually a veto at all. Rather, it is an opportunity to delay and then seek arbitration, all of which is highly complex and strongly caveated and in which the result could in any event be reversed.
Eighth, even if the UK were to win at the arbitration panel, the EU can then take “remedial measures”. In plain English, they can retaliate.
Ninth, even after all this, if the UK does decide to apply the Brake it is then required to conduct a near-term review of why it has done so and then report these conclusions to the EU via the Joint Committee, a process rather akin to being called into the Headmaster’s office for being a truculent pupil.
Taken together, it should be evident to the reader that this extremely complicated procedure is, in reality, practically useless – especially as there could be hundreds of revised, amended, or new EU laws every year.
In simple terms, the Brake has been designed to be so complicated and difficult to use that it is unlikely that it will ever actually be invoked at all.
As evidence of this: the design of the Brake is a highly restricted version of a process contained in the European Economic Area (EEA) Agreement; yet, over several decades, there has only been one attempt to use the EEA version of the Brake (by Norway in 2011, which was subsequently abandoned in 2013).
The dismal record of this less stringent procedure is strong, empirical evidence of just how weak the comparable version for Northern Ireland actually is.
The Government are clearly nervous that these weaknesses have been exposed, because the SI published on Monday contains an extra provision, which was not in the original Windsor Framework documents: to require an “applicability motion” to be passed by Stormont, but only for new EU laws (not revised or amended ones).
Nevertheless, ministers in London can still ignore this requirement in “exceptional circumstances”, so even this last-minute provision is effectively meaningless.
Later today, MP’s will be asked, after a 90-minute debate, whether not they wish to approve this procedure. Butt is already plain as a pikestaff that what was originally billed as a simple veto, following a straightforward decision by 30 MLA’s in the Stormont Assembly, is in reality immensely more complicated than that.
That is why the Star Chamber has declared the Brake “practically useless.”
It is of course up to every individual MP to decide how to vote this afternoon. But if they take the trouble to read our Report – or perhaps just this article and the associated diagram – it will hopefully be plain to them that what they are being asked to vote for is not what they were promised.