Reversal looms for DUP’s block on building permanent Irish Sea border checkpoints

DUP Agriculture Minister Gordon Lyons surprised many observers on Friday night when he announced that he was halting preparations for making permanent the current temporary border posts which his predecessor Edwin Poots had allowed to be constructed.

Mr Lyons also ended some charges which the DUP has previously allowed to be levied at the internal UK border –but did not act to order his staff to stop carrying out checks or to dismantle the temporary border checkpoints which is party now argues are illegal.

However, under Stormont’s ministerial code a controversial or major decision which relates to the legal responsibilities of another department must be brought to the whole Executive to be decided.

The Executive contains a pro-Northern Ireland Protocol majority, meaning that if the issue is decided there it will not be to the satisfaction of those seeking to remove the new trade frontier.

The Press Association last night reported that a meeting of the Executive yesterday was told that acting Attorney General Brenda King’s view was that Mr Lyons should have brought the decision to the Executive under the terms of the ministerial code.

Today ministers will meet again to consider a paper from Mr Lyons and Ms King’s advice. Mr Lyons is set to hold talks with Ms King ahead of today’s meeting.

If it is clear that the DUP minister acted beyond his legal authority, that in itself will not overturn the decision, which remains presumptively valid until superseded.

And the DUP may be able to prevent the matter from being tabled on the agenda for Executive meetings for a vote because the agenda must be jointly agreed by Arlene Foster and Michelle O’Neill.

However, if Mr Lyons broke the ministerial code then such tactics would only delay the decision being reversed.

The most likely route for Mr Lyons’ decision being overturned would be in court where the DUP minister would have to explain why he did not bring the controversial issue to the Executive for a decision.

At yesterday’s Executive meeting Sinn Fein, SDLP and Alliance ministers contended that he does not have the authority to act unilaterally on issues considered significant or controversial.

Mr Lyons’s announcement late on Friday afternoon represented the DUP’s latest bid to undermine the contentious Northern Ireland Protocol, which governs Irish Sea trade between Great Britain and the region post-Brexit.

Having initially pragmatically agreed to operate the Irish Sea border, the party has come under increasing pressure to wreck the protocol – and has said that it now will seek to do so.

As well as ordering officials to halt work on planned permanent inspection facilities for regulatory checks on agri-food goods arriving from GB, Mr Lyons also stopped further recruitment of inspection staff and said charges would not be levied at the ports on traders bringing goods into Northern Ireland from the rest of the UK.

Explained his rationale on Friday, Mr Lyons said his move was in response to the “practical difficulties” caused by the protocol.

He cited uncertainty over the movement of goods when grace periods currently limiting protocol bureaucracy end at the start of April.

Mr Lyons’s Department of Agriculture, Environment and Rural Affairs has been fulfilling the UK Government’s legal duty to construct the facilities under the terms of the Brexit Withdrawal Agreement.

Last year the minister’s predecessor and DUP colleague Edwin Poots also explored the potential of ordering a stop to construction but quickly stepped back from that position following legal advice.

Mr Poots instead distanced himself from the work and his senior officials took on responsibility for fulfilling the protocol obligations.

Mr Lyons cited UK domestic legislation – in the form of the Internal Market Act – in arguing he has a “legal duty” to stop the work.

Yesterday the Prime Minister’s official spokesman insisted the issue was one for the Executive to resolve.

“That is a matter for the Northern Ireland Executive and we obviously remain in close contact with them,” he said.

“Goods, including food, continue to flow through ports in Northern Ireland with the existing, interim agri-foods facilities in place.”

Asked whether halting work would be a breach of the Northern Ireland Protocol, agreed between the UK and the European Union, the spokesman again said it was a matter for the devolved executive.

“We will obviously will continue to liaise and speak to them.”

Mr Lyons’ decision was debated in the Assembly yesterday where rival MLAs accused Mr Lyons of stunt politics.

He replied: “The steps that I have taken are as a result of the practical barriers and the legal uncertainties that currently exist.

“I think the steps that I’ve taken have been entirely reasonable and I would ask people whether their opposition to what I have done is based on common sense and practicality or is it just based on opposition to anything that they don’t like in relation to Brexit and the protocol.”

SDLP MLA Matthew O’Toole asked Mr Lyons: “Minister, if this was a reasonable step to take, can I ask why you did it late on a Friday afternoon, can I ask why no official statement has been issued by your department, can I ask why a further ministerial direction was sought or issued and whether this order is live in that is your permanent secretary seeking legal advice as to whether he should proceed with your instruction or not?”

In response, Mr Lyons said he had given “an instruction” to his civil servants but denied that the timing of it late on a Friday afternoon was of any significance.

Asked by the SDLP’s Patsy McGlone if the contract – worth about £40 million – had been cancelled or delayed, and whether there would be any financial penalty for taxpayers, Mr Lyons cautiously answered in a way which did not quite address the question.

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