After less than a week defying PM, DUP minister U-turns to allow officials to work on Irish Sea border checks

In a sudden U-turn which has emerged this evening, the agriculture and environment minister abandoned the stance he began to adopt last week and returned to the position which Arlene Foster outlined in her interview with Sky News where she accepted that her party now has to implement a border it detests.

Significantly, Whitehall department DEFRA said that it did not order Mr Poots to change his stance.

The DUP’s chief whip in the Commons, Sammy Wilson, told MPs on Monday night that DEFRA had on Friday overruled his DUP colleague and given instructions to the civil servants in Mr Poots’ department.

However, DEFRA said that was wrong, telling the News Letter that it was “continuing to work closely with the Executive” on implementation of the Brexit deal, which “includes being clear about our expectations of the Northern Ireland Executive and DAERA [Mr Poots’ department], but no instructions have been issued.”

Last Wednesday Mr Poots wrote to both his own officials and to DEFRA to tell them that he was stopping work – which until then had been proceeding in his department – on preparing for the border infrastructure necessary for checks on goods from the end of this year.

That led to a heated Executive meeting last Thursday evening in which ministers and a senior civil servant were in dispute over what Mr Poots had done.

The meeting, during which legal advice from the Departmental Solicitor’s Office in relation to Mr Poots’ decision was discussed, was inconclusive, with ministers only able to agree on a request for more legal advice from the Attorney General.

It is believed that there is no precedent for a London minister overruling an instruction from a devolved minister to his civil servants.

However, in certain circumstances – which in law are defined so as to encompass many potential scenarios – that is possible, even if it is a nuclear option for the government.

Section 26 of the Northern Ireland Act 1998 – the legislation which enacted the Belfast Agreement – says: “If the Secretary of State considers that any action proposed to be taken by a Minister or Northern Ireland department would be incompatible with any international obligations, with the interests of defence or national security or with the protection of public safety or public order, he may by order direct that the proposed action shall not be taken.”

Yet it is clear that DEFRA did not have to invoke that legislation to force Mr Poots to allow his officials to work on the border infrastructure.

Instead, the News Letter has been told by a senior source with knowledge of the issue that DEFRA minister George Eustice wrote to Mr Poots’ most senior official, Denis McMahon, to set out his expectation that the work – which now involves major procurement – would resume.

Mr McMahon then wrote a memo for Mr Poots “to note” that he must press ahead with procurement for border checks. However, unusually in such circumstances, he did not ask his minister to take a formal decision.

Nevertheless, as a minister Mr Poots has the authority to issue a ministerial direction forcing his officials to act in a particular way – something he has not done in this instance, thus allowing them to help construct the new border.

Speaking to Radio Ulster’s Farming Matters programme last night, Mr Poots claimed that last week’s BBC report that he had ordered officials to stop work on the border was “inaccurate” – despite Arlene Foster implicitly endorsing the broad accuracy of the report when she criticised ministerial colleagues on Monday for having given the BBC “a full summary” of the Executive meeting where the issue caused a row.

Mr Poots said that his reason for not signing off on the work was that EU delay meant “we still don’t know what is required for appropriate measures at the [border]” and he could not justify the expenditure of £40 million in such circumstances – rather than arguing that he would outrightly attempt to block the border, come what may.

He said that DEFRA had now agreed to pay for the infrastructure, but “I’ll not be signing it off”.

Earlier, Mr Poots’ department had said in a statement: “There is a binding international agreement passed by Westminster to implement the Northern Ireland protocol. DAERA officials are working to implement points of entry in order to meet those requirements as set out by the Defra minister and the UK command paper, The UK’s Approach to the Northern Ireland Protocol.

“Approved points of entry are a legal requirement for the purposes of protecting public health, securing safe food supply and protecting animal and plant health.”

This morning the News Letter reported that a source had said that Mr Poots’ decision to halt work on border infrastructure followed a DUP meeting at which senior party figures urged him to do so.

Prior to publication, the News Letter attempted to contact Mr Poots directly and twice asked the DUP about the issue. The party did not deny the accuracy of the account.

However, after the publication of our report Mr Poots said on Twitter that the information about the DUP meeting was “erroneous and untrue”.

Sam McBride: The DUP and Brexit – from backing Leave on a whim to Arlene Foster’s ‘blood red line’, and now her surrender

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