Correspondence from the Democratic Scrutiny Committee to all MLAs
16 February 2024
Mr Philip McGuigan MLA, Chairperson
Windsor Framework Democratic Scrutiny Committee (DSC)
Parliament Buildings
Room 371
Ballymiscaw
Stormont
Belfast
BT4 3XX
Ref: DSC10/24
16 February 2024
TO:
Michelle O’Neill, MLA, First Minister
Emma Little-Pengelly, MLA, deputy First Minister
The Executive Office
A chairde,
Windsor Framework Democratic Scrutiny Committee (DSC)
The Windsor Framework Democratic Scrutiny Committee (DSC), which was established under The Windsor Framework (Democratic Scrutiny) Regulations 2024, held its first meeting on 15 February 2024.
Following that meeting, I wish to take the opportunity to outline the DSC’s functions and provide you with information on how the Committee has agreed to carry out its business.
Functions of the DSC
The key objective of the DSC is to assist with the observation and implementation of Article 13(3a) and Article 13(4) of the Windsor Framework - the wording of these Articles can be found attached to this letter. A copy of the Unilateral Declaration by the United Kingdom on the Involvement of the Institutions of the 1998 Agreement (“the Unilateral Declaration”) is also attached for completeness.
The functions of the Committee include:
(a) the examination and consideration of new EU acts and replacement EU acts,
(b) the conduct of inquiries and publication of reports in relation to replacement EU acts,
(c) engagement with businesses, civil society and others as appropriate in relation to replacement EU acts,
(d) engagement with the UKG in relation to replacement EU acts,
(e) engagement with Ministers and Northern Ireland departments in relation to replacement EU acts,
(f) the collation and publication of evidence collected as part of its other activities, and
(g) dealing with other matters (including legislative proposals which may become new EU acts or replacement EU acts) which the Committee considers to be connected with its purpose or otherfunctions.
As provided for in the Unilateral Declaration, 30 MLAs, in specific circumstances, can ask the UK Government to apply the Stormont Brake. Therefore, it is not a function of the DSC to ask that the Brake be applied. It is also not a function of the DSC to agree, or not agree, that a new EU act should be added to the Windsor Framework. That is a matter for the Assembly on foot of an applicability motion. However, in both cases, the work of the DSC could inform decisions on how to proceed.
Operation of the DSC
The DSC may be notified by the UKG, under paragraph 6(1)(a) of the aforementioned regulations, if a new EU act to be added to the Windsor Framework has been proposed by the European Commission, or if a replacement EU act, that falls within the scope of the Windsor Framework, has been proposed by the European Commission.
Under paragraph 6(1)(b), the DSC may be notified if a replacement EU act,that falls within the scope of the Windsor Framework, has been published in the EU Official Journal (having completed the EU legislative process).
Notification: Proposed new or replacement EU acts
Following receipt of a notification that the European Commission has proposed a new EU act or a replacement EU act, as specified above, the DSC may monitor its progress and publish any interim reports that it considers appropriate. Where it does so, the DSC may also decide, at any time, to hold an inquiry into the proposed new or replacement EU act.
Proposed new EU acts
In making its decision on whether to monitor a proposed new EU act, the DSC will consider whether applying the new EU act would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist. Where appropriate, the Committee will also consider the potential impact of not applying the replacement EU
act, including any significant impacts that may arise as a result of dual divergence. An assessment of impact will be requested from the relevant department to help it do this. The department will also be asked to draw to the DSC’s attention any other matters of relevance to the proposed new EU act. Should the department wish to draw any other matters to the DSC’s attention, the information provided should be evidential in nature rather than a commentary.
Should the DSC decide to monitor a proposed new EU act, the department will be asked to provide a revised assessment of impact if the impact changes in the course of the act progressing through the EU’s legislative process.
The DSC may decide, at any time, to hold an inquiry into the proposed new EU act.
In the course of its consideration of a proposed new EU act, the DSC may choose to engage with any relevant EU consultation.
Proposed replacement EU acts
In making its decision on whether to monitor a proposed replacement EU act, the DSC will consider whether applying the replacement EU act would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist. Where appropriate, the Committee will also consider the potential impact of not applying the replacement EU act, including any significant impacts that may arise as a result of dual divergence. An assessment of impact will be requested from the relevant department to help it do this. The department will also be asked to draw to the DSC’s attention any other matters of relevance to the proposed replacement EU act. Should the department wish to draw any other matters to the DSC’s attention, the information provided should be evidential in nature rather than a commentary.
The DSC will also consider whether the proposed replacement EU act significantly differs (in whole or in part) from the content or scope of the EU act that it amends or replaces. Consideration will be based on legal advice.
Should the DSC decide to monitor a proposed replacement EU act, the department will be asked to provide a revised assessment of impact if the impact changes in the course of the act progressing through the EU’s legislative process.
The DSC may decide, at any time, to hold an inquiry into the proposed replacement EU act.
In the course of its consideration of a proposed replacement EU act, the DSC may choose to engage with any relevant EU consultation.
Notification: Published replacement EU acts
Following receipt of a notification that the European Union has published a replacement EU act, the DSC must decide whether to hold an inquiry into the act, or, whether to continue any inquiry previously begun when the replacement EU act was at proposal stage. The DSC has a statutory duty to make such decisions no later than five working days after the day on whichthe notification is made. A failure to make a decision will be treated as a decision not to hold an inquiry or not to continue an inquiry that had already begun, as the case may be.
In making its decision on whether to hold an inquiry into a published replacement EU act, the DSC:
(a) must have regard to whether it appears likely that the replacement EU act -
(i) significantly differs (in whole or in part) from the content or scope of the EU instrument which it amends or replaces, and
(ii) would have a significant impact specific to everyday life of communities inNorthern Ireland in a way that is liable to persist, and
(b) may have regard to any other matters it considers appropriate.
In making its decision on whether to hold an inquiry into a published replacement EU act, the DSC will consider whether applying the replacement EU act would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist. Where appropriate, the Committee will also consider the potential impact of not applying the replacement EU act, including any significant impacts that may arise as a result of dual divergence. An assessment of impact will be requested from the relevant department to help it do this. The department will also be asked to draw to the DSC’s attention any other matters of relevance to the published replacement EU act. Should the department wish to draw any other matters to the DSC’s attention, the information provided should be evidential in nature rather than a commentary. Given the statutory five working days timeframe, officials will need to have assessments of impact approved and ready for submission at the pointat which they are requested by the DSC.
Inquiries
Should the DSC decide to hold an inquiry into a published replacement EU act, or a proposed new or replacement EU act, it will seek substantive discussion and engagement with the UKG, a Minister or Northern Ireland department, and to the extent the DSC considers appropriate, representatives of businesses and civil society affected by the EU act, or who would be affected if the EU act enters into force. This discussion and engagement will take the form as is usual in committees.
Inquiry Reports
The DSC will publish its inquiry reports. In cases where an inquiry has been held on a published replacement act, the DSC will publish its report within the statutory timeframe of no later than 15 working days before the end of the “scrutiny period”. The scrutiny period ends two months from the day on which the EU replacement act was published in the EU’s Official Journal. There is no statutory timeframe for the publication of reports on proposed new EU acts or proposed replacement EU acts.
Interaction between the DSC and statutory committees
It is the role of the DSC, rather than statutory committees, to examine and consider proposed new EU acts, and proposed and published replacement EU acts. Statutory committees will continue to consider EU exit related issues that fall within the functions of their department, this might include engagement on policy development and the scrutiny of the implementation of EU acts.
Review
The DSC will keep its processes and procedures under review to ensure that they remain fit for purpose.
The DSC looks forward to working with departments in the discharge of its functions. In the meantime, if any further information/clarification on the operation of the DSC is required, officials should contact Marie Austin, Clerk of the Windsor Framework Democratic Scrutiny Committee, on Ext # 20302.
Le meas,
Philip McGuigan
Chairperson, Windsor Framework Democratic Scrutiny Committee
Article 13(3a) of the Windsor Framework
3a. By derogation from paragraph 3, and subject to the fourth subparagraphof this paragraph, a Union act covered by this paragraph that has been amended or replaced by a specific Union act (“specific Union act”) shall not apply as amended or replaced by the specific Union act as from two weeks after the day on which the United Kingdom has notified the Union in writing through the Joint Committee that the procedure set out in the of the institutions of the 1998 Agreement made by the United Kingdom, as annexed as Annex I to Joint Committee Decision No 1/20232, has been followed. Such notification shall be made within two months of the publication of the specific Union act and shall include a detailed explanation of the United Kingdom’s assessment as regards the conditions referred to in the third subparagraph of this paragraph, as well as of the procedural steps taken within the United Kingdom prior to the notification.
If the Union considers that the United Kingdom’s explanation is insufficient as regards the circumstances referred to in the third subparagraph of this paragraph, it may request further explanation within two weeks as of the date of notification and the United Kingdom shall provide that further explanation within two weeks as of the date of the request. In that case the Union act covered by this paragraph shall not apply as amended or replacedby the specific Union act as from the third day after the day on which the United Kingdom has provided that further explanation.
The United Kingdom shall make the notification referred to in the first subparagraph of this paragraph only where:
(a) the content or scope of the Union act as amended or replaced by the specific Union act significantly differs, in whole or in part, from the content or scope of the Union act as applicable before being amended or replaced; and
(b) the application in Northern Ireland of the Union act as amended or replaced by the specific Union act, or of the relevant part thereof as the casemay be, would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist.
Where the conditions set out in points (a) and (b) are met in relation only to apart of the Union act as amended or replaced by the specific Union act, the notification shall be made only in respect of that part, provided that the latter is severable from the other parts of the Union act as amended or replaced by the specific Union act. If the latter is not severable, the notification shall be made in respect of the smallest severable element of the Union act as amended or replaced by the specific Union act containing the part in question.
Where the notification is made in respect of a part of the Union act as amended or replaced by the specific Union act, in accordance with the second sentence of the previous subparagraph, the Union act shall not applyas amended or replaced by the specific Union act only in respect of that part.
Where the notification referred to in the first subparagraph of this paragraph has been made, paragraph 4 shall apply with regard to the Union act as amended or replaced by the specific Union act; in case the Union act as amended or replaced by the specific Union act is added to this Protocol, this shall be in lieu of the Union act before being amended or replaced.
This paragraph covers Union acts referred to in the first indent of heading 1 and headings 7 to 47 of Annex 2 to this Protocol, and the third subparagraphof Article 5(1) thereof.
Article 13(4) of the Windsor Framework
Where the Union adopts a new act that falls within the scope of this Protocol,but which neither amends nor replaces a Union act listed in the Annexes to this Protocol, the Union shall inform the United Kingdom of the adoption of that act in the Joint Committee. Upon the request of the Union or the United Kingdom, the Joint Committee shall hold an exchange of views on the implications of the newly adopted act for the proper functioning of this Protocol, within 6 weeks after the request.
As soon as reasonably practical after the Union has informed the United Kingdom in the Joint Committee, the Joint Committee shall either:
a) adopt a decision adding the newly adopted act to the relevant Annex to this Protocol; or
b) where an agreement on adding the newly adopted act to the relevant Annex to this Protocol cannot be reached, examine all further possibilities to maintain the good functioning of this Protocol and take any decision necessary to this effect.
If the Joint Committee has not taken a decision referred to in the second subparagraph within a reasonable time, the Union shall be entitled, after giving notice to the United Kingdom, to take appropriate remedial measures. Such measures shall take effect at the earliest 6 months after the Union informed the United Kingdom in accordance with the first subparagraph, but in no event shall such measures take effect before the date on which the newly adopted act is implemented in the Union.
Unilateral Declaration by the United Kingdom on the Involvement of the institutions of the 1998 Agreement
1.The United Kingdom will adopt the following procedure to operate the emergency brake mechanism in Article 13(3a) of the Windsor Framework. This mechanism will apply in the unique circumstances of this Declaration and is without prejudice to the status of cross-communityvoting and safeguards in the 1998 Agreement, which apply solely and exclusively to devolved matters.
a) The mechanism will operate solely and exclusively in the event thatafter the date of this declaration, the Northern Ireland Executive hasbeen restored and become operational, including with a First Ministerand deputy First Minister in post, and the Northern Ireland Assemblyhas been in regular session. Thereafter, Members of the LegislativeAssembly (‘MLAs’) wishing to operate the mechanism must beindividually and collectively seeking in good faith to fully operate theinstitutions, including through the nomination of Ministers and supportfor the normal operation of the Assembly.
b) The minimum threshold for the mechanism will operate on the same basis as the separate ‘Petition of Concern’ process within the 1998 Agreement, as updated through the New Decade, New Approach Agreement in 2020. This means 30 MLAs from at least two parties (and excluding the Speaker and Deputy Speakers) will need to notify the UK Government of their wish that the emergency brake mechanism should be applied.
c) When providing notification to the UK Government, MLAs will need to demonstrate, in a detailed and publicly available written explanation:
i.that they have met the same requirements as those set out in Annex B of Part 2 of the New Decade, New Approach Agreement, namely that the notification is only being made in the most exceptional circumstances and as a last resort, having used every other available mechanism;
ii.that the conditions set out in the third subparagraph of Article 13(3a) of the Windsor Framework are met; and
iii.that MLAs have sought prior substantive discussion with the UK Government and within the Northern Ireland Executive to examine all possibilities in relation to the Union act; taken steps to consult businesses, other traders and civic society affected by the relevant Union act; and made all reasonable use of applicable consultation processes provided by the European Union for new Union acts relevant to Northern Ireland.
2.If it accepts that the conditions in paragraph 1(a) and (b) have been met and that the explanation provided under paragraph 1(c) is satisfactory, the United Kingdom will notify the Union in accordance with the first subparagraph of Article 13(3a) of the Windsor Framework.
3.The United Kingdom, following a notification by MLAs, commits to informing the Union without delay.
4.The United Kingdom, following a notification to the Union that the emergency brake has been triggered, commits to intensive consultations in the Joint Committee on the relevant Union act as provided for by Article 13(4) of the Windsor Framework.
