Irish Sea border checks: DUP say it's over to the government - but NIO silent

Last month, the then-DUP leader Sir Jeffrey Donaldson told the News Letter that the final piece of legislation in his party’s Safeguarding the Union deal would give London “the powers they need to direct our local authorities to end the checks on goods moving from Great Britain to Northern Ireland and staying within the UK”.

The legislation – which became active last week – gave the Secretary of State the power to take control of implementing the Protocol and removed the ability of Stormont to scrutinise Irish Sea border decisions made by the Secretary of State.

It was part of the government’s deal with the DUP, which claimed “the Government, as part of this package of measures, will remove checks when goods move within the UK internal market system except those conducted by UK authorities and required as part of a risk-based or intelligence-led approach to tackle criminality, abuse of the scheme, smuggling and disease risks”. The deal also commits to refocusing DAERA “identity checks” to the red lane.

Selling the deal, Sir Jeffrey Donaldson went further, saying there would be “zero checks, zero paperwork”.

However, an issue which has never been addressed is how the regulations could get round the legal obligation under the Windsor Framework to check 5% of goods travelling through the green lane – checks a government official described as a “fundamental underpinning” of the trade arrangements.

There are different types of checks conducted at the new internal border: documentary, physical and identity checks. DAERA carries out physical and identity checks – so the UK government could, under the new regulations, issue guidance to stop those.

However, documentary (or paperwork) checks are carried out by HMRC, not a Stormont department. Therefore there are questions about how the new regulations could stop documentary checks, as they don’t give the NI Secretary the power to instruct HMRC. The deal was also clear that it wouldn’t stop checks “conducted by UK authorities” – like HMRC.

TUV leader Jim Allister has told the News Letter the regulations “only apply to functions of NI departments”. He said: “This causes me to believe they cannot extend to ‘documentary checks’, which according to DAERA lie with HMRC.

The North Antrim MLA said it is clear that the regulations “will leave documentary checks untouched. These matter, because they are those required by reason of our subjection to the EU Customs Code in respect of goods being brought into EU ‘territory’.

“This cuts to the very kernel of the EU sovereignty grab over NI which the tainted Donaldson Deal leaves untouched. So long as NI is under the Customs Code of the EU we cannot be a full part of the UK, but, rather, are a condominium, ruled in part by EU laws and in part by EU laws”, he said.

Mr Allister added: “But, let’s now see the detail of what the Secretary of State is going to do, so that we can measure it against the spin and hype that accompanied these regulations.”

Loyalist and anti-protocol campaigner Jamie Bryson – who is leaving open the possibility of running against the DUP leader in the general election – has asked when the directions will be issued to halt checks on goods. He said “it was claimed by senior DUP figures and the NIO that once these powers became operable then very quickly directions would be issued to halt checks on goods destined for Northern Ireland.

“Those Regulations became operative on 12 April, so when are the directions being issued?

“We now hear the present DUP leader- who championed the Donaldson Deal- retreating to accepting the Irish Sea border remains, but now claiming the ‘suggestion’ is that it may be gone in the Autumn”.

The News Letter asked Brussels if any request has been made by the UK government to remove documentary checks on the green lane and if the EU agreed to anything that would change its agreement with the UK for 5% checks.

This newspaper also asked the Northern Ireland Office, now that the regulations are active, if the Secretary of State intends to issue a direction to DAERA to stop checks on the green lane, and if so when.

We also asked if any direction will include documentary checks. There has been no response.