Judge strongly criticises DUP North-South boycott but declines to order that they attend the meetings

Mr Justice Scoffield held that compelling them to end their unlawful boycott of the cross-border meetings could lead to a “pantomime” of continued non-participation.

Despite deciding against making an order to schedule and attend events, he branded the party representatives’ continued flouting of their legal obligations “profoundly concerning and depressing”.

The withering judicial assessment of the DUP’s ongoing stance came in a challenge to its snubbing the North South Ministerial Council (NSNC).

Belfast businessman Sean Napier took legal action against the party’s five Stormont Ministers for withdrawing as part of its opposition to the Northern Ireland Protocol.

Proceedings were issued against First Minister Paul Givan, Junior Minister Gary Middleton, Economy Minister Gordon Lyons, Education Minister Michelle McIlveen, and Agriculture Minister Edwin Poots.

In October the party’s boycott was declared an unlawful breach of the pledge of office.

Despite that ruling, there has been no apparent change to the DUP’s position.

Mr Napier’s lawyers returned to court seeking an order aimed at ensuring the DUP begins moves towards attending NSMC events.

The judge had been urged to direct Mr Givan to set a date for a plenary meeting which was to be held this month and attended by the heads of the administrations on both sides of the border.

Counsel for Mr Napier claimed the First Minister and his colleagues had displayed “open defiance” since their boycott was found to be illegal.

In his ruling, Mr Justice Scoffield further declared Mr Givan’s failure to agree a date and agenda for north south events between October and December to be unlawful.

He confirmed that the non-scheduling formed part of the DUP’s withdrawal.

“It is simply a wrecking or spoiling tactic undertaken in order to avoid the operation of the statutory requirements that Ministers attend and participate,” he said.

Mr Givan’s failure to agree dates and agendas, as suggested by Sinn Fein Deputy First Minister Michelle O’Neill, has been used “as cover for a publicly declared and unlawful boycott”

Even though some events were facilitated, the judge was scathing in his wider appraisal of the impediment to the cross-border work.

“It is difficult to see the transaction of certain limited business which the respondents have permitted to proceed as anything other than a cynical attempt to mitigate the potential political cost of their boycott of the NSMC at the expense of cheapening respect for the rule of law,” he said.

Despite those findings, however, he decided that it would be inappropriate to make a mandatory order which would involve a process of supervising and policing DUP ministers’ stance.

“A calculation has apparently been made - which the court deprecates in the strongest possible terms - that respect for the rule of law is outweighed by the political advantage to be secured by the respondents’ boycott of the NSMC,” he explained.

“In my view, it is unrealistic to suggest that, if (Mr Givan) is compelled to agree a date and agenda for forthcoming NSMC meetings, the respondents will thereafter simply engage with the NSMC in the normal conscientious manner one would usually expect.”

Mr Justice Scoffield also stressed that the court should avoid making an order which would involve stepping into the political sphere.

Ministers could not be forced to conduct any meaningful business at meetings they were directed to attend.

“This leads to the risk that the rule of law would in fact be further undermined by a pantomime of the court’s coercive powers being continually invoked to no ultimate, substantive benefit,” he said.

Even if any such direction was ignored, a subsequent finding of contempt would involve a fine rather than the threat of a serving minister’s imprisonment.

However, the judge stated: “The court is further astute to avoid its process being misused for political gain by the respondents, or any of them, being able to portray themselves as martyrs for the political cause of opposition to the Northern Ireland Protocol.”

Restricting his ruling to further declarations of unlawful activity, he emphasised that his decision was not a vindication of the DUP ministers’ position.

“By their actions which are the subject of these proceedings the respondents, and principally the first respondent (Mr Givan) by his actions following the grant of the court’s declaration in October, are in abject breach of their solemn pledge,” Mr Justice Scoffield added.

“It is no answer that the respondents wish to protest what they perceive as a political injustice.

“For present purposes, the court is entirely unconcerned with the merits of the respondents’ criticisms of the Northern Ireland Protocol.”

Citing the sporadic outbursts of violence linked to the post-Brexit treaty, the judge went on: “It is incumbent upon those in political leadership to reflect on the example set when they choose to wilfully ignore clear legal obligations to which they are subject.

“It is not difficult to conceive that condemnation of others’ law-breaking may be less influential when political leaders are themselves content to publicly disregard the law in instances of their own choosing.” ends

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