A legal challenge to DUP Minister Edwin Poots’ decision to halt Irish Sea border checks has been put on hold amid new claims that his department may not be under any obligation to carry out the inspections.
Proceedings were adjourned at the High Court on Monday after Mr Poots’ lawyers suggested responsibility could instead lie with a branch of the UK Government.
Mr Justice Colton confirmed that his order for the checks to continue remains in place until the dispute is resolved.
Legal action is being taken against Mr Poots for instructing his officials in February to stop the post-Brexit checks on goods entering Northern Ireland from Great Britain.
The step taken by the Stormont Agriculture Minister came amid continued DUP opposition to the Northern Ireland Protocol.
Unionists claim the arrangements, which involve inspecting British products to ensure compliance with EU laws, threatens the region’s status in the UK.
Mr Poots said he had received legal advice that he could direct a halt in the absence of approval for the checks from the wider Stormont Executive.
The lawfulness of his decision is disputed by a Sinn Fein member granted anonymity, another applicant named Edward Rooney, and Belfast City Council.
The cases involve a claim that the Minister is frustrating a statutory purpose.
According to those behind the challenge, the Executive has already dealt with the issue by allocating implementation of the Irish Sea border checks to the Department of Agriculture, Environment and Rural Affairs (DAERA).
They contend that the step taken by Mr Poots was so significant and controversial that it required full Executive consent.
But as a full hearing was set to get underway, senior counsel for the Minister questioned whether the relevant Official Control Regulations placed any duty on DAERA.
John Larkin QC told the court that the alleged obligation on his client has not been spelled out.
“It may be that Her Majesty’s Government may want to express a view on this,” he said.
Recognising the new legal point, Mr Justice Colton pointed out: “Previously this case has been framed on the basis of whether there was an obligation to refer the matter to the Executive, that’s really what kicked off the dispute and was the issue as I understood it.”
A branch of the UK Government and the Attorney General are now expected to become involved in the case when it resumes next month.
Meanwhile, the suspension of Mr Poots’ direction continues.
The judge stressed: “I’m conscious that I have granted interim relief…the status quo from the applicants’ point of view will remain.”