London says it hasn’t overruled DUP minister on Irish Sea border, but doesn’t rule it out

As the ultimate weakness of Stormont’s devolved powers becomes clearer, the DUP’s chief whip in the Commons, Sammy Wilson, told MPs that the Conservative minister’s department, DEFRA, had overruled his DUP colleague and given instructions to the civil servants in Mr Poots’ department.

During Monday night’s Commons debate on the controversial Internal Market Bill, Mr Wilson said that “only on Friday the Secretary of State for Environment, Food and Rural Affairs overrode the Northern Ireland Agriculture, Environment and Rural Affairs Minister and instructed civil servants in Northern Ireland to put up border posts and put in a proposal for border posts, even though all the information about what would be necessary had not been accepted”.

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 when the new arrangements become operational at 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 and instead ordering those officials working for the devolved administration to disobey their minister.

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.”

That legislation also gives the Secretary of State power to direct that Stormont departments should undertake certain actions if it meets those criteria, or to revoke legislation passed by the Assembly.

In a carefully-worded statement to the News Letter, DEFRA appeared to indicate that it was leaning on Stormont to proceed with the new border infrastructure but had not yet formally ordered civil servants in Northern Ireland to disobey their minister’s instruction.

The brief statement said: “We are continuing to work closely with the Executive on implementation of the agri-food part of the Northern Ireland Protocol. This includes being clear about our expectations of the Northern Ireland Executive and DAERA [Mr Poots’ department], but no instructions have been issued.”

At the weekend, DEFRA had said that it had “submitted to the EU applications for these entry points on time and there will be no new customs infrastructure in Northern Ireland”.

At the time of publication, Mr Poots’ department had not responded to questions on the issue.

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