The DUP is preparing to order NI civil servants to stop Irish Sea border checks — but officials might just refuse to comply
Northern Ireland may be weeks away from stumbling into a constitutional crisis of a sort never seen before. Rather than arguments about partition or tribalism, the issue here would be constitutional propriety, and at its heart would be nervous civil servants, a bungling minister and a matter of immense importance — the Northern Ireland Protocol.
What is unfolding appears to have been engineered by the DUP, a political party so desperate to change the public perception of how it has handled Brexit that its former leader is now willing to publicly humiliate himself to shift focus from its impotence until now. With that party facing voters in May, it is likely to ensure that this escalates quickly, even though there are risks that what it is doing could rebound on it.
This story first became public four days before Christmas, although there had clearly been weeks of strategising before that point was reached. At a time when most people were worrying about Covid and their festive plans, the Press Association reported that loyalist activist Jamie Bryson’s Unionist Voice Policy Studies group had commenced legal action against DUP agriculture minister Edwin Poots.
Acting as a litigant in person, Mr Bryson contended that the minister should have sought approval from the Executive before agreeing to build the Irish Sea border inspection posts and then allowing his officials to carry out inspections of products entering Northern Ireland from Great Britain.
Even within the political bubble, few people paid much attention to the story. But on Wednesday, the Nolan Show revealed that Mr Poots had responded to Mr Bryson and effectively thrown in the towel before the issue even came to court, saying that he intended to bring a paper to the Executive not later than the end of January “in relation to the continued and future implementation of the protocol”.
As my colleague Allison Morris observed, receiving such a prompt ministerial reply over the Christmas holidays is unusual to the point of provoking suspicion that Mr Poots was eager to concede the legal claim. It does, after all, provide a potential route for him to impede the protocol — something his party says it wants to do, yet for more than a year he has been allowing his officials to implement it.
It is all the more striking because of Mr Bryson’s involvement. While he has for years denounced the DUP with regularity, his relationship with the party is more complicated than those denunciations imply. For years, Mr Bryson has also been used by some senior DUP figures at key points where it suited the interests of some of the party’s internal factions.
When asked by the Belfast Telegraph if he was working with the DUP on the issue, Mr Bryson denied that he was, saying: “We are on different sides of this case. In my view the point is strikingly obvious as a matter of law, therefore the concession by [Mr Poots] reflects the strength of the legal point rather than any political conspiracy”
SDLP leader Colum Eastwood was among those who in reacting to this news sneered at the involvement of Mr Bryson, an unelected figure who has been close to paramilitaries and spoken in defence of the UVF. But whatever one’s view of the North Down man or what he represents, the fact that the legal points which he has raised have been conceded by an Executive minister is highly significant. It is all the more significant because of the implications of that concession.
In simple terms, the anti-Good Friday Agreement campaigner is attempting to use the architecture of the Agreement he hates to undermine the protocol. The Northern Ireland Act 1998 — which put the Agreement into law — makes clear that any significant or controversial decisions by individual ministers must come before the full Executive.
That legislation interacts with a legally-enforceable ministerial code and case law. There are plenty of MLAs who know less about this complex area of the law than Mr Bryson.
However, despite the complexity in the rules about what comes to the Executive and what ministers can do unilaterally, this situation appears on one level straightforward. Unquestionably, the protocol is both significant and controversial and it therefore seems clear that it should have been brought to the Executive.
The DUP’s plan appears to be to propose to both regularise what has already happened, and then seek Executive approval for every future aspect of protocol implementation — but only do so because it wants to get the decision into the Executive where it has a veto and can block it.
However, this is where awkward questions begin for Mr Poots. The person who did not ask the Executive for a decision on this was himself. His current position appears to be that he made a huge error when he allowed his officials to build border posts and then enforce checks on goods.
It will be for the courts to decide whether that delay undermines his contention now that the matter must be considered by the Executive, but in political terms it is excruciating. It seems that the minister is either admitting that he did not think at the time the Irish Sea border was significant or controversial, or that he believes that the checks he allowed his officials to put in place are illegal because as a veteran minister he failed to understand a central aspect of the Belfast Agreement.
Neither possibility flatters a man who last year wanted to be, and briefly succeeded in becoming, DUP leader. The fact that a senior DUP politician is acting in this way is a measure of the party’s desperation to change the narrative.
Mr Poots’ political career may depend on how this develops. His proximity to the protocol’s implementation is politically toxic and he has rarely given the sense of being sure-footed. Last year he said that he did not know that his department had advertised for staff to conduct protocol checks — something the DUP had very publicly claimed to have stopped — until I told him about it.
With unionist rivals referring to the border control posts as “Poots’ Posts” and the agriculture minister facing two heavyweight DUP running mates in Lagan Valley — Sir Jeffrey Donaldson and Paul Givan — he is vulnerable to losing out in a constituency where the DUP currently only has two seats.
Sinn Féin immediately responded by saying that it will block his proposal for the checks to receive Executive approval from even being discussed by the Executive. But Mr Poots retorted that in that scenario he will not have authority for the continuation of checks and so be able to order his staff to stop the work.
This is where another form of politics may take over. Eighteen months ago, Mr Poots briefly flirted with the idea of blocking the Irish Sea border checks. Despite having been aware for months that his officials were working on creating the new internal UK trade frontier, the flip-flopping minister ordered his civil servants to stop that work.
Senior civil servants took their own legal advice which I understand said that such an order be invalid because they are obliged to obey the law and the protocol is law.
The issue led to heated exchanges between a senior civil servant and the DUP at an Executive meeting. But within days Mr Poots backed down, allowing officials to resume work while attempting to politically distance himself from what was happening by saying that he hadn’t told them to do the work.
He explained his U-turn on a U-turn by saying “I have no legal remit to stop it in that all of the legal advice that has came [sic]…would indicate that a ministerial direction to an official which would oblige an official to break the law is not a ministerial direction which would have any standing”.
The precise questions which that legal advice addressed are unclear. However, it appears that there are here two legal obligations which are to some extent in conflict. The protocol has been incorporated into UK law, meaning that it is legally binding. But the Northern Ireland Act 1998 is equally binding in law, and it requires any controversial or significant decisions to come to the Executive for approval.
In itself, that is not a conflict. But once at the Executive table the DUP could use its veto to block implementation of the protocol — and that creates the conflict. The power which allows the DUP to do so is not incidental to the Agreement, but is its essence because the accord was centred not only on power-sharing but a system of government in which unionism and nationalism had mutual vetoes over major decisions.
There is a provision of the Northern Ireland Act 1998 — which has never been used — that would allow the Government to override a devolved decision. That may be the most obvious route out of this mess, but it is politically awkward for a Prime Minister chest-beating about removing swathes of the Irish Sea border.
The next aspect of this tussle is likely to involve civil servants. If Mr Poots orders them to stop checks, they will have to decide whether to follow that order. If their stance 18 months ago is repeated, at least some of them are likely to refuse to do so, something which would be without precedent.
Members of the NI Civil Service are bound by their code of ethics to “comply with the law”. But the same code also says that they must not “frustrate the implementation of policies once decisions are taken by declining to take, or abstaining from, action which flows from those decisions”.
In law, a minister’s orders are presumptively valid until overturned by a court. Article 4(1) of The Departments (Northern Ireland) Order 1999 states clearly that “the functions of a department shall at all times be exercised subject to the direction and control of the minister”.
This is perilous territory for the civil service and comes just seven months after the appointment of an outsider, Jayne Brady, as its head. She, and Mr Poots’ officials, will have to decide what political neutrality and commitment to upholding the law means in this context.
But it is also perilous territory for Mr Poots and his party. Until now, he has effectively blamed others for the Irish Sea border, telling DUP supporters that it was put in place over his head. Now he seems to be claiming to have the power to stop it because it was put in place illegally.
That means that from now on whatever checks are carried out will exist because he has decided not to end them, despite claiming to have the power to do so.
Yet this could get much worse for the DUP. If a judge rules that the checks are not in fact illegal for the very reason that the DUP allowed them to be put in place and delayed more than a year before changing its stance, then yet more of the unionist blame for how Brexit has been bungled will land at the DUP’s feet.