A High Court judge has reserved a ruling in a legal challenge seeking to compel the DUP to engage in setting a date for the next full meeting of the North South Ministerial Council (NSMC).
The DUP is currently boycotting cross-border political meetings as part of its protest against Brexit’s Northern Ireland Protocol.
Belfast businessman Sean Napier has already secured a court judgment that declared the DUP boycott as unlawful.
However, that ruling has not prompted a change in the DUP policy of non-engagement.
At a relief hearing in Belfast High Court on Tuesday, Mr Napier’s lawyers sought a further ruling compelling DUP First Minister Paul Givan to engage with Sinn Fein deputy First Minister Michelle O’Neill and the Irish Government to set a date and agenda for the next plenary meeting of the NSMC.
The plenary meeting was supposed to take place this month.
It cannot happen without the participation of the DUP and the party is currently not engaging in the cross-border political structures set up under the Good Friday Agreement, with the exception of meetings related to health issues.
The party contends that the Brexit Protocol and it associated barriers on Irish Sea trade have damaged east/west relations and, as such, it should not be business as usual when it comes to north-south relations.
Mr Napier’s barrister Ronan Lavery QC told judge Mr Justice Scoffield that his client wished to adopt an “incremental approach” in respect of seeking court intervention.
He said he was not, at this stage, seeking an order compelling DUP participation in meetings but rather an order compelling Mr Givan to engage in scheduling a date for the next meeting and agree a joint agenda.
The issue of whether meetings have been formally scheduled has been a key aspect of the legal case, with the DUP arguing that as no specific dates have been agreed for various NSMC meetings its ministers are not technically boycotting them.
The party has contended that it is not under a legal duty to attend a meeting that has not been formally scheduled.
Mr Lavery rejected the DUP’s scheduling defence as “not viable or lawful”, arguing that the reason no specific dates have been set for the plenary meeting is due to a refusal by Mr Givan to engage in the processes required to schedule it and sign off its agenda.
Mr Lavery said rather than respect the court’s declaration, the DUP has instead tried to deliberately undermine it.
“The position since that judgment has been this conscientious attempt to not respond and to do the opposite to participate but to find a reason to thwart the terms of your lordship’s judgment,” he said.
The barrister said if the court did not follow through with a mandatory order there was a risk that confidence in the justice system would be undermined.
In exchanges with Mr Lavery, the judge asked what would happen if Mr Givan complied with an order to schedule a meeting but then DUP ministers turned up to the plenary and refused to engage with the business or make any decisions.
The barrister said such a scenario would represent an “embarrassing moment” for the people of Northern Ireland, but he acknowledged that it would be “more difficult territory” for the court to intervene on.
“I hope we never get to the stage where the court has to intervene to state what engagement looks like,” he said.
Mr Napier observed proceedings from the back of the court accompanied by his solicitor Paul Farrell.
Mr Givan and his junior minister in the Executive Office, Gary Middleton, are not legally represented in the judicial review case.
Three other DUP Executive ministers named as respondents in the challenge – Gordon Lyons, Edwin Poots and Michelle McIlveen – were represented in court by barrister Tony McGleenan GC.
The court has previously been told the joint nature of Stormont’s Executive Office means Mr Givan and Mr Middleton cannot be legally represented without the approval of deputy First Minister Ms O’Neill.
Addressing the court on Tuesday, Mr McGleenan acknowledged that it was unsatisfactory that NSMC meetings had not been taking place.
However, he argued that not every unsatisfactory situation required judicial intervention.
He insisted the issue lay within the “political arena” and suggested the DUP could be held accountable for its decisions by the Assembly and the electorate.
He highlighted that scheduling a meeting was a “tripartite” process involving the DUP, Sinn Fein and the Irish Government.
The barrister said the judge was being asked to place an obligation on Mr Givan to make an agreement in an “inherently contested political sphere” in circumstances that the court “cannot forecast with certainty” the position of the other two parties to the agreement.
Justice Scoffield put it to the barrister that the process of finding a suitable date for a meeting to take place was not an issue of “political contention”.
After hearing around an hour and 45 minutes of submissions, Justice Scoffield said he would deliver a written ruling later this month before the end of the current legal term.
“This is obviously a case of some political sensitivity and some importance,” he said.
“It will come as no surprise to you that I want to reflect on submissions that you’ve made and the authorities that have been provided.”