Joël Reland / Dec 2023
Ursula von der Leyen and Rishi Sunak at the Windsor Framwork conclusion. Photo: European Union, 2023
Irish backstop. Max fac. Settled status. Windsor Framework. Over the years, Brexit has spawned its own wide but weird lexicon.
And, as we approach 2024, it continues to grow. “Trivergence” is the next new word which could soon be on the tips of Brexit-watchers’ tongues.
What this refers to is the scenario where Northern Ireland diverges from the regulations of both the EU and UK – creating three separate sets of rules and leaving itself adrift of both.
So, how might it occur?
It rests on the application of the ‘Stormont Brake’ – a provision included in the ‘Windsor Framework’ agreed by the UK and EU earlier this year. Under the terms of the Framework, a wide range of EU regulations continue to apply in Northern Ireland, in order to maintain an open Irish border.
Naturally, when new EU rules take effect in Northern Ireland, this creates divergence with the rest of the UK, which no longer follows EU rules. This effect is of significant concern to the pro-UK Unionist community in Northern Ireland, due to the sense of political estrangement – and trade disruption – which it creates.
The Stormont Brake, however, is meant to address this, by allowing Northern Irish Assembly members to block the application of updated EU regulations in Northern Ireland, if it creates a ‘significant impact specific to everyday life in a way that is liable to persist’.
To give a tangible example, the EU’s revision of its Packaging and Packaging Waste Directive could impose significant new obligations on companies in terms of how packaging is produced, used and disposed of. If companies in Great Britain (GB) do not adapt to the new requirements (which they are not obliged to do), their packaged goods will no longer be exportable for sale in Northern Ireland.
This could have a marked impact on trade, and thus the Brake might in theory be triggered to block its application, leaving Northern Ireland following the old version of the EU’s packaging directive, which at the moment still applies in GB (because it was copied over during Brexit).
But another problem arises if one of the UK governments subsequently changes its own rules on packaging (as it has already shown some inclination to do). There would then be separate rules on packaging in Great Britain, Northern Ireland and the EU.
The Windsor Framework is meant to place Northern Ireland in a unique position, with unfettered access to both the EU single market and UK internal market. But the triggering of the Brake (note: the barriers to doing so are quite high) could leave it cut adrift from both, stuck in a regulatory time capsule from 2021.
This may seem like a deeply obscure point, painting an extreme, hypothetical example. Yet, as our divergence trackers have found, in many policy areas the UK government has shown similar regulatory instincts to the EU, but taken longer to act.
It is therefore possible to imagine a series of cases where the EU updates legislation and Northern Ireland blocks its application via the Brake, before the UK also legislates – creating the trivergence effect (or ‘dual divergence’ as Dr Lisa Claire Whitten has called it). A few examples currently in the pipeline include rules on goods linked to deforestation, forced labour in supply chains, gene editing, and chemicals.
For the time being, the trivergence risk is redundant because Northern Ireland does not have a sitting Assembly to trigger the Brake. But, if one returns following elections next year, the risk becomes live, and is arguably heightened by the legislators’ long absence.
There may be political appetite in certain quarters to trigger the Brake at the first available opportunity, as a demonstrative rejection of EU law, before the consequences have been fully thought through. There are very serious questions to be posed about whether Assembly Members are sufficiently aware of the risks the Brake poses, including around trivergence.
The issue of the Brake also raises a deeper question Northern Ireland’s capacity to align with UK regulation. The Brake is designed to prevent unwanted GB-NI divergence stemming from the EU changing its rules. But what about when the Westminster government changes its rules, but they do not apply in Northern Ireland because it is an area of devolved competence, or because EU rules apply?
In areas of devolved competence, the obvious solution is for the Northern Irish government to replicate Westminster’s legislation, but there are questions about whether it will have the capacity to monitor all applicable changes and implement the necessary reforms. After all, the Scottish and Welsh governments both publicly committed to alignment with EU regulations where possible, but have been unable to deliver much in practice.
Will Stormont be able to perform any better? If it is to do so, it will probably rely on constructive engagement from Westminster about upcoming changes. Doing so may be vital if the Windsor Framework is to be accepted as the new status quo in Northern Ireland.
2023 is widely seen as the year in which UK-EU relations were normalised, thanks to the Windsor Framework. But its effects on Northern Ireland remain uncertain because its provisions are yet to be fully tested (not least due to the absence of an Assembly).
The Assembly is also due to hold a consent vote on the Withdrawal Agreement and Protocol (as amended by the Framework) before the end of next year. 2024 may thus be the year when we start to get a sense of whether the Framework can deliver a new normal for Northern Ireland.