Key questions over move to halt Brexit checks in Northern Ireland

A Stormont minister has ordered a halt to agri-food checks at Northern Ireland ports on incoming goods from Great Britain.

The DUP’s Edwin Poots has told officials in his Department of Agriculture, Environment and Rural Affairs (Daera) to stop checks required under the terms of Brexit’s Northern Ireland Protocol

Here are the answers to some of the key questions about the move.

– Why has Mr Poots ordered a halt to the checks?

The minister claims he needs the approval of the wider Stormont Executive to continue the checks.

Under Stormont’s powersharing rules, decisions deemed “significant or controversial” need the endorsement of the wider administration to proceed.

That is to ensure that big policy moves have cross-community backing and guards against ministerial solo-runs.

Issues that cut across the responsibilities of multiple departments should also be brought to the Executive under the terms of the ministerial code.

Mr Poots brought a paper to the Executive last week seeking that authority.

He did so in the knowledge that, if the matter was elevated to wider Executive, the DUP could at that point exercise a veto to block approval for the checks, on the basis that they are not supported by the unionist community.

Realising that was Mr Poots’ likely intent, Sinn Fein used its own veto to prevent the issue from even getting on the agenda in the first place.

Mr Poots has since contended that, in the absence of wider Executive backing, he does not have the legal authority to continue the checks.

He sought the opinion of senior counsel on the issue which he received on Wednesday.

– Does the halt relate to all protocol processes?

No, Mr Poots’ department is only responsible for sanitary and phytosanitary (SPS) checks. These relate to food and plant safety checks on agri-food produce.

The customs elements of the Northern Ireland Protocol are not within Daera’s remit and are not affected by the announcement.

– Why now?

An obvious question is why is Mr Poots, a vociferous critic of the protocol, only taking this action now, over a year after the checks started.

His critics within the unionist family insist he should have acted long ago, indeed well before the protocol became operational in January 2021.

Mr Poots came close to taking action then and threatened to halt work on checking facilities but he ultimately stepped back from that position upon the receipt of legal advice.

UK Environment Secretary George Eustice also wrote to the minister to remind him that he was obliged to conduct the SPS checks as part of the UK’s international obligations under the Withdrawal Agreement.

Mr Poots contends that he is taking action now because the legal position has only recently been clarified by a series of recent court rulings that examined issues around Executive authority and decision making.

– What first triggered this chain of events?

Late last year, a group called Unionist Voice Policy Studies issued legal proceedings against Mr Poots, warning that it would launch a judicial review against the minister if he did not seek the approval of the wider Executive for continuing the checks.

Mr Poots conceded the case without even going to court and said he would bring a paper to the Executive seeking approval by the end of January.

– What does Sinn Fein say?

The DUP’s partners-in-government have branded Mr Poots’ recent actions as an electoral stunt, motivated by poor opinion poll showings.

The party argues that the Executive already took a decision in 2020 that Mr Poots’ department would assume legal responsibility for carrying out the checks.

It is understood that contention is based largely on a minute from a meeting of the powersharing administration on May 21 2020.

At that time Arlene Foster was DUP First Minister alongside Michelle O’Neill as Sinn Fein deputy First Minister.

The PA news agency understands that Executive minute reads:

“The First Minister advised that;

(i) the UK Government had published its policy approach to the implementation of the Protocol, and that this confirmed the need for arrangements to control the entry of agri-food products into Northern Ireland, but also the need to simplify and minimise such checks;

(ii) she and the deputy First Minister would continue to engage with the Westminster Government on this matter, including by means of the JMC (EN) meeting later that day.

“It was agreed that the Minister of Agriculture, Environment and Rural Affairs would take the lead on this issue with the support of a cross Departmental group; and that officials would confirm to Whitehall that the necessary work would be taken forward with Defra, Cabinet Office and the NIO to move this forward.”

– What about the civil service?

Senior civil servants are in a difficult position.

The DUP insists civil servants are obliged to follow ministerial directions. Sinn Fein and other parties claim civil servants have a primary obligation to abide by the law, so would be unable to follow any unlawful direction.

– What about the UK Government’s position?

Parliament is sovereign, so any decision taken by Mr Poots, or the Executive, could in theory be overridden by the Government.

If protocol checks were to stop, it would put the Government at odds with its obligations under the terms of the Withdrawal Agreement.

In such circumstances, the Government could use its authority to direct that the checks resume.

However, that could place it in an uncomfortable position politically, given Foreign Secretary Liz Truss is currently involved in intensive negotiations with Brussels in a bid to significantly reduce the number of checks required under the protocol.

The Government has recently signalled that it might not intervene.

In its most recent statement on the issue to PA, the Government said: “We have been clear the operation of checks is a matter for the Northern Ireland Executive in the first instance.

“It’s clear the Northern Ireland Protocol is not working as it stands.

“We are determined to negotiate a solution and move forward. 

“Our proposal is pragmatic and common-sense: only goods going to the European Union should face customs checks and processes.

“The UK Government is in intensive talks with the EU and our clear priority is to protect the peace process and the Belfast (Good Friday) Agreement in all its dimensions.”

Supporters of Mr Poots highlight that the Good Friday/Belfast agreement is also an international treaty and the Government is equally obliged to uphold its terms.

They claim continuing with checks without the cross-community support of the Executive would impinge on that 1998 treaty.