‘Clapping ministers in shackles and sending them to prison may not be in the public interest’ says High Court judge in stinging findings against DUP

The text of his judgment against the DUP yesterdaysuggests that, whilst a judge could theoretically send ministers to jail for contempt if they outright ignored the court’s instrutctions, this may not be in the “public interest”.

He stated that he does not want to end up with a situation where the DUP can use the courts to paint themselves as anti-protocol “martyrs”.

His 26-page written judgment acknowledges that “goodwill between the power-sharing parties ... or at least business-like and pragmatic cooperation between them ... does not presently appear to be present”.

But ultimately, “without good faith participation in the structures of the North-South Ministerial Council (NSMC) on the part of the respondents [the DUP], the court cannot ensure that the council is able to meet and do business”.

In other words, he could not force ministers to conduct any meaningful business at meetings even if they obeyed an order 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,” the judgment goes on to read.

And “even if a mandatory order were made and not complied with, the standard approach would be to make a finding of contempt and not (as some might assume) to have the relevant minister led off in shackles”.

He added: “If personal default on the part of a minister was to be established, as might well occur in this case, penal powers are available in principle against the offending minister.

“But there are public interest considerations weighing against the imprisonment of a serving minister with departmental responsibilities. In any event, a fine would usually be the most appropriate penalty for an initial breach.

“Whatever penalty were to be imposed however, this is unlikely to result in substantive agreement being reached on issues raised for consideration within the NSMC.

“And, if it did, there are questions as to the propriety of the court securing the achievement of a substantive political outcome through the use of its coercive powers, given the doctrine of separation of powers.

“As I have also previously said, 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.”

More from this reporter:

Click here: ‘DUP has embarrassed all of unionism with its empty Protocol threats’ declares Empey as Donaldson pledges more ‘engagement’ with No10

Click here: Man shot dead in west Belfast understood to have recently beaten charges of blackmail and threats to kill

Click here: Leading loyalist warns government it may well be playing with fire over Protocol

Click here: Grief and gratitude as family of Debbie Crothers praise work of volunteers who found her body

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