There are some fairly complicated and, if truth be told, boring legal points contained in the latest attempt by unionism to frustrate the protocol, making it unworkable and therefore defunct.
To cut through the legal jargon and implications of section 28A (5) of the Northern Ireland Act 1998 and associated paragraph 2.4 of the Ministerial Code not being adhered to, what has been claimed is that DUP Minister Edwin Poots needs Executive approval to continue implementing protocol checks at ports and airports.
Mr Poots’ department is responsible for implementing the checks and has been doing so since last January, leaving aside a short period last February when he controversially withdrew staff from the ports claiming they were under threat.
The Minister did not previously refer port checks to his fellow ministers because it was not seen as a cross cutting issue requiring the consent of the Executive. So, what changed?
Well, back on December 21 it was reported that a group known as Unionist Voice Policy Studies, headed up by loyalist activist Jamie Bryson, was threatening a judicial review of the Minister’s decision not to seek Executive consent and had issued a pre-action protocol letter. This story, while potentially significant, went largely unnoticed due to it being Christmas week.
Mr Poots has since responded to the threat of legal action, apparently conceding the legal points, by saying he intends to introduce a paper to the Executive in the coming weeks. This is where the story gets interesting. Any political journalist will tell you getting a response from a government minister in such timely fashion is unusual. Receiving that response days after a holiday recess, is just unheard of. Those with a suspicious mind might wonder if it was possibly even orchestrated.
Bryson appears to have conjured up an arguable legal point in a report issued on Wednesday that suits the DUP’s objectives. He is known to be close to elements within the DUP, and party leader Sir Jeffrey Donaldson endorsed that report via his Twitter account, calling it “a welcome contribution”.
Mr Poots has been quick to accept the legal argument, without, it would seem, any real time for his departmental advisors to consider the points raised.
The strategy of seemingly legally halting checks at ports puts pressure on London, which is in a critical stage of negotiations with the EU over the protocol.
Sources say Foreign Secretary and Brexit negotiator Liz Truss has planned a visit to Northern Ireland soon, and will no doubt be briefed as to the latest move by unionism to make the protocol unworkable.
Sinn Fein has said it will block it going forward — but if they refuse to allow Mr Poots’ paper to be put in front of the Executive for consent then he will declare the checks to be unlawful and they are likely to stop within weeks.
After that the question of how the protocol is implemented will fall back into the laps of Westminster, something they are unlikely to want to deal with at a time of crisis within Boris Johnson’s government. It seems for the DUP at least all is fair in love and legal warfare.