Windsor Framework Democratic Scrutiny Committee

Correspondence from the Committee to all MLAs regarding the Committee's first meeting

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: ALL MLAs

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 Members 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:

  1. the examination and consideration of new EU acts and replacement EU acts,
  2. the conduct of inquiries and publication of reports in relation to replacement EU acts,
  3. engagement with businesses, civil society and others as appropriate in relation to replacement EU acts,
  4. engagement with the UKG in relation to replacement EU acts,
  5. engagement with Ministers and Northern Ireland departments in relation to replacement EU acts,
  6. the collation and publication of evidence collected as part of its other activities, and
  7. 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 other functions.

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 new 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 will 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 will 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 which the 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:

  1. must have regard to whether it appears likely that the replacement EU act -
    1. significantly differs (in whole or in part) from the content or scope of the EU instrument which it amends or replaces, and
    2. would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist, and
  2. 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 will be evidential in nature rather than a commentary.

The DSC will also consider whether the 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.

The DSC will publish, on its website, any decision it takes on whether to hold an inquiry into a published replacement act. Departmental assessments of impact for all proposed or published EU acts will also be published on the website.

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.

If you require any further information/clarification on the operation of the DSC, please contact Marie Austin, Clerk of the Windsor Framework Democratic Scrutiny Committee, on Ext # 20302.

Le meas,

Chairperson

Windsor Framework Democratic Scrutiny Committee