Internal battle between Sir Jeffrey Donaldson and Edwin Poots seriously hampering carefully laid plan to stop checks at ports
What has emanated from the DUP this week has been a mixture of carefully laid strategy and actions which for now remain inexplicable even to some DUP members.
Sir Jeffrey Donaldson had been working to a plan suitably desperate for a party facing potential annihilation in the election now just three months hence: Threatening to topple devolution if the Irish Sea border is not removed. But some of what he has done this week is difficult to explain based on what is now publicly known.
Sinn Fein made clear in 2017 that, in the right circumstances, it was prepared to use the existence of devolution as a negotiating card, only allowing devolution back after three years when it had secured some of its objectives. Now the DUP has adopted the same strategy.
Setting aside whether that is inherently irresponsible — as many of the DUP and Sinn Fein’s opponents argue — if Stormont is to be used by a party as a lever to secure its agenda, then it makes sense to use that tool in a way which secures maximum leverage.
While Sir Jeffrey’s move on Thursday was dramatic and would have appeared tough to some external observers, it was in fact the moment where he threw away his key lever.
The DUP’s continuing civil war, in which Sir Jeffrey and Edwin Poots are the key protagonists, may contain the clues which explain why this week unfolded as it did. If that is so, it is an example of how a political party’s internal spats — sometimes dismissed as irrelevant to the more serious aspects of politics — can have dramatic consequences for the very existence of government.
What happened this week has its roots in Arlene Foster’s failed attempt to reluctantly accept the Northern Ireland Protocol. After being betrayed by Boris Johnson, Mrs Foster was explicit. She accepted that the DUP had lost and would have to make the most of it. As the Irish Sea border went up last January, she spoke effusively of a “gateway of opportunity”.
Once unionist voters realised the protocol’s sweeping scale, that plan collapsed, and with it ultimately Mrs Foster’s leadership. Mr Poots, her successor for a few weeks, and his successor, Sir Jeffrey, then endorsed an obstructionist stance, even though they had gone along with her pragmatic acceptance of the sea border.
In a speech last September, Sir Jeffrey threatened that if the sea border did not go, his party would topple Stormont. Having talked tough but acted with restraint, he was increasingly being lampooned.
But that altered in December, when the loyalist anti-protocol activist Jamie Bryson served a legal threat on Mr Poots, arguing that he had never secured the Executive’s approval for the checks and so they were unlawful. Rather than contest the claim, Mr Poots conceded within days.
From then, Mr Poots was openly moving towards ordering his officials to stop the sanitary and phytosanitary checks they conduct.
The DUP’s spads, ministers, staff in party headquarters and legal advisers had been involved in crafting the circumstances in which Mr Poots would give that order. Legislation was examined, case law was re-opened, civil service codes were looked at and the party gamed out how others would react to the instruction.
When Foreign Secretary Liz Truss indicated to the Belfast Telegraph just over a week ago that the Government would not countermand Mr Poots, the DUP received a major boost.
The final piece of the plan required legal advice. That arrived on Mr Poots’ desk on Wednesday. The source of the advice was remarkable — former Attorney General John Larkin.
Civil servants had long feared that stopping checks would be unlawful. The SDLP, Sinn Fein and Alliance endorsed that view, based on advice which current Attorney General Brenda King had given in a similar situation in 2020.
However, with Mr Larkin — the man who the DUP and Sinn Fein had made the Executive’s chief legal adviser for a decade — backing the lawfulness of Mr Poots’ order, it became harder for officials to refuse it.
A demonstrably illegal order, such as a request to assault someone, must be refused by officials. But the bar is high — a minister’s orders are “presumptively valid” unless demonstrably illegal or overturned by a court.
I understand from someone briefed on Mr Larkin’s opinion that it was lengthy, detailed and robustly in favour of the thrust of what Mr Poots had argued publicly. That individual said that Mr Larkin was clear that an order to stop checks would be lawful and could not be rejected by officials.
He is also said to have highlighted that for months swathes of the protocol are not being enforced due to unilateral grace periods declared by the government, but that these have no legal basis.
That means that officials have been content for the protocol to be broken until now, and their objection to halting the checks that were happening would make them decision-makers over how much of it should be broken.
There was a certain logic in the DUP waiting to see how officials reacted and then deciding whether it should escalate its threats to Stormont — first perhaps linking the two, and then a post-dated resignation letter from the First Minister, giving the party time to work out its next move.
That would have put civil servants in a horrible position, facing a minister telling them that the future of Stormont rested in their hands.
Instead, before it was even publicly clear as to whether checks had stopped, someone in the DUP leaked that the First Minister would be resigning that day. Immediately, Mr Poots’ moment at the centre of the drama was over.
Sources close to Mr Poots say that he was not the leaker. There was no apparent benefit to him from having done so. However, given the party’s civil war, and Mr Poots’ central role in one of its camps, did someone move to push him out of the picture?
If so, that came at the expense of the party’s most significant reserve plan to build pressure. The reason that was essential for the party is that a ministerial direction — a formal order given after an official has told the minister they cannot recommend a course of action — is probably impossible in this situation.
No ministerial direction was issued on Wednesday, perhaps because officials played for time by not making clear their own strategy. But a ministerial direction requires either the approval of the Finance Minister, Sinn Fein’s Conor Murphy, or the entire Executive — the first of which will not be given, and the second of which would also veto the plan even if it remained in place to do so.
The Gadarene rush to topple devolution removed a subtler way in which the DUP could have built pressure on officials. Now Mr Poots looks limp, with officials openly refusing his order and his party out of ideas as to how to make them comply.
DUP sources are not entirely united about the planned timing of walking out of the Executive. Some had been led to believe that may be next week, while others say that from the start of this week Thursday had been set as the day.
Whatever the precise explanation, consistent with how the party has acted since so lightly backing Brexit six years ago, the DUP has managed to bungle something which had the potential to be far more effective in advancing its aims.
Neither Paul Givan’s resignation statement, nor Sir Jeffrey’s lengthy speech announcing their move, explained why it was essential at precisely that moment. It is true that Sir Jeffrey had warned for months that he might do this. But what changed from the previous day, when he hadn’t done it? What changed from the previous week? Last week Mr Givan himself set February 21 as the key deadline.
Given that the move undermines what Mr Poots did, it would make no sense for his instruction to stop checks to be the reason. It was telling that neither statement suggested the sudden rush out of Stormont was linked in any way to Mr Poots’ order, or to officials’ reaction.
The other dimension which had changed in the preceding days was the growing internal battle over Mr Poots’ future. Having attempted to move constituencies to South Down because Sir Jeffrey wants to run in Lagan Valley, Mr Poots was rejected by the party officers. On Wednesday, hours before Mr Poots ordered an end to checks, he publicly said that Sir Jeffrey had encouraged him to move to that seat (something Sir Jeffrey yesterday denied).
DUP MP Sammy Wilson retorted that Mr Poots had not been the best candidate and that Sir Jeffrey had not voted for him in the selection process.
Mr Poots is fighting to overturn the party officers’ rejection of him as the candidate, and his ally Jim Wells is confident that the party executive will back him. That body includes many ordinary DUP members who would have been delighted with Mr Poots’ move to stop checks.
But rather than a week where he was taking the credit for his actions, he was immediately sidelined by Paul Givan’s resignation. Whatever lies behind this move, Sir Jeffrey has now bet his party on it.
Yesterday, the High Court issued an interim injunction which freezes Mr Poots’ order until a full hearing next month. If the judge finds against the DUP, there is the possibility that this goes in an unexpected direction.
If there is no legal basis for the current implementation of the ‘protocol-lite’ which has existed for the last year, and if Mr Justice Colton rules that the entire protocol is a legally binding commitment which must be implemented, then there is the possibly that both Mr Poots’ order to stop checks and the limited checks which had been taken place are unlawful.
That would require a huge escalation in checks. It would mean the banning of everything from GB chilled meats to GB plants with soil on their roots from Northern Ireland and would also mean the imposition of the medicines border which had been paused by the government.
Industry, political and civil service sources say that full implementation of the protocol in that way is impossible immediately. If it was to happen, it would be unpopular with the public.
An EU document released last week showed that the commission wants to search passengers’ luggage as they arrive in Northern Ireland from GB, to require documentation and checks on pets travelling with their owners, to check items being posted from GB to consumers in Northern Ireland, and a host of other new checks.
Just as Brexit was intended to strengthen the Union but has weakened it, so an order to stop checks could see them increase.