A DUP Stormont minister will act unilaterally to halt Brexit checks at Northern Ireland ports, Stormont’s First Minister has said.
Paul Givan said his party colleague Edwin Poots will order a stop to the controversial checks after a failed bid to secure the wider approval of the Stormont Executive to continue them.
The anticipated move by the Agriculture Minister has been branded a stunt by other parties on the Executive, which insist Mr Poots does not have the authority to prevent checks required under the terms of the Brexit Withdrawal Agreement, an international treaty.
Sinn Fein deputy First Minister Michelle O’Neill, who claimed the proposal would expose the DUP to “public ridicule”, said civil servants would be obliged to defy any order from Mr Poots as such a direction would be unlawful.
However, Mr Givan offered a very different interpretation, claiming Mr Poots no longer has legal cover to continue the agri-food checks, which are currently being conducted by his department’s staff.
He said civil servants will be legally obliged to follow a direction from the minister.
The dispute centres on whether Mr Poots requires the authority of the wider Stormont Executive to conduct the checks and inspections on goods arriving from Great Britain necessitated by Brexit’s Northern Ireland Protocol.
Claiming recent court rulings have clarified that such authority is required, Mr Poots tried to secure the approval of the Executive by asking for it to be voted on at Thursday’s meeting.
He did so in the knowledge that if the matter was elevated to the Executive, his party could at that point exercise a veto to block approval for the checks.
Realising that, Sinn Fein used its own veto to prevent the issue from even getting on the agenda in the first place.
Mr Poots now contends that, in the absence of wider Executive backing, he does not have the legal authority to continue the checks.
It is unclear when he will formally announce that he has directed a halt to them.
Edwin Poots acknowledged to the Assembly that his department is required by domestic law to ensure compliance with obligations to implement SPS checks at ports. To avoid more stunt politics & public ridicule the DUP would be wise to take the legal advice provided.— Michelle O’Neill (@moneillsf) January 27, 2022
Mr Givan told reporters at Stormont that his colleague will act.
“I think that’s a mistake on the part of Sinn Fein not to have allowed it in to the Executive because for those checks to continue requires the Executive to agree that – that’s why we believe that the checks continuing would be unlawful,” he said.
“That requires Edwin Poots as the minister to act in a way that will resolve that issue – and Edwin Poots is going to act.
“The fact that it’s not on the agenda does not change the legal parameters by which Edwin Poots as a minister has to discharge his duties and he will be taking action.
“That is something that the DUP have said that we were going to do, and we are going to do that.”
Mr Givan said civil servants would be obliged to follow any instruction from the minister.
“It’s politicians who are elected, they have a democratic mandate. Civil servants do not have a democratic mandate to take these decisions and, absolutely, civil servants will have to follow the democratic ministerial instruction of their minister,” he said.
“Not to do that, I think, would have profound implications in terms of how the civil service operates.”
Sinn Fein has argued that the Executive already took a decision in 2020 that Mr Poots’s Department of Agriculture, Environment and Rural Affairs (Daera) would assume legal responsibility for carrying out the checks.
The party has now pointed to a response Mr Poots gave to an SDLP MLA later in 2020 which, it claims, confirms that position.
In September 2020, ahead of the checks coming into effect, SDLP MLA Patsy McGlone asked Mr Poots what legal advice he had sought in the event he fails to make the preparations required by the Brexit Withdrawal Agreement to carry out the checks.
In his reply, Mr Poots said his department had responsibility for carrying out agri-food safety checks and was required by UK domestic law to comply with that duty.
Responding to the apparent contrast between his position in 2020 to his stance now, Mr Poots said on Thursday: “A number of recent judgements which were not previously available have given considerable clarity on the legality of the issue.”
Ms O’Neill dismissed the DUP claims on Thursday. She characterised it as electioneering ahead of May’s scheduled Assembly poll.
“Edwin Poots himself has clearly said in the Assembly chamber that he has a legal responsibility in which to administer the checks at the ports. That remains the case today,” she said.
“There’s also very clear Executive policy that it is the Daera department, his department, that must administer those checks, so he is the minister responsible.
“Instead of electioneering and stunt politics, he should get on with doing his job.
“That’s why I have made that point very clear to him. This is all about the election, folks, this is what the DUP are at, it’s more stunts in a long list of stunts over the past number of months on this issue.”
Ms O’Neill said the Executive has very clear legal advice from the attorney general on the issue.
She said civil servants have to comply with the department’s legal obligations under the withdrawal treaty regardless of what Mr Poots directs.
“He has a responsibility, and the (Daera) permanent secretary has responsibility, regardless of what the minister says, that they have to deliver upon the checks because that is an international agreement,” she said.
It is understood the contention that the Executive already agreed to designate Daera as the responsible department for the checks is based largely on a minute from a meeting of the powersharing administration on May 21 2020.
At that time Arlene Foster was first minister alongside Ms O’Neill as deputy First Minister.
The PA news agency understands that Executive minute reads:
“The First Minister advised that;
(i) the UK Government had published its policy approach to the implementation of the Protocol, and that this confirmed the need for arrangements to control the entry of agri-food products into Northern Ireland, but also the need to simplify and minimise such checks;
(ii) she and the deputy First Minister would continue to engage with the Westminster Government on this matter, including by means of the JMC (EN) meeting later that day.
“It was agreed that the Minister of Agriculture, Environment and Rural Affairs would take the lead on this issue with the support of a cross Departmental group; and that officials would confirm to Whitehall that the necessary work would be taken forward with DEFRA, Cabinet Office and the NIO to move this forward.”
If protocol checks were to stop, it would put the UK Government at odds with its obligations under the terms of the Brexit Withdrawal Agreement.
In such circumstances, the Government could use its authority to direct that the checks resume.
However, that could place it in an uncomfortable position politically, given Foreign Secretary Liz Truss is currently involved in intensive negotiations with Brussels in a bid to significantly reduce the number of checks required under the protocol.
In an interview with the Belfast Telegraph, published on Thursday night, Ms Truss appeared to suggest the Government would not intervene, telling the paper it was a “matter for the Executive”.