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The Protocol Row

Explainer: What has led Edwin Poots to halt Brexit agri-checks at Northern Ireland ports?

Poots claims he no longer has the legal authority to continue the Protocol checks – but local politics is also at play.

HERE WE GO again. 

After a Stormont minister ordered a halt to agri-food checks at Northern Ireland ports on incoming British goods – what can we expect next in the latest Brexit twist?

Stormont minister and DUP MLA Edwin Poots has tonight told officials in his Department of Agriculture, Environment and Rural Affairs (Daera) to stop checks required under the terms of Brexit’s Northern Ireland Protocol.

This has been criticised as a stunt by Sinn Féin, grandstanding by Alliance, and welcomed by the TUV.

The Irish Government has said that it’s a serious decision that would breach international law, while the British Government has said it won’t get involved.

Here are the answers to some of the key questions about the move – due to kick in in just over an hours’ time.

Why has Poots ordered a halt to these checks?

2.60284228 The DUP's Edwin Poots. PA PA

Edwin Poots is claiming he needs the approval of Stormont Executive ministers to continue the checks.

Under Stormont’s powersharing rules, decisions deemed “significant or controversial” need the endorsement of the wider administration to proceed.

That is to ensure that big policy moves have cross-community backing and guards against ministerial solo-runs.

Issues that cut across the responsibilities of multiple departments should also be brought to the Executive under the terms of the ministerial code.

Poots brought a paper to the Executive last week seeking that authority on that basis.

He did so in the knowledge that, if the matter was elevated to the wider Executive, the DUP could at that point exercise a veto to block approval for the checks, on the basis that they are not supported by the unionist community.

Realising that was Poots’ likely intent, Sinn Féin used its own veto to prevent the issue from even getting on the agenda in the first place.

Poots is now arguing that, in the absence of wider Executive backing, he does not have the legal authority to continue the post-Brexit checks.

He said he has sought and received  the opinion of senior counsel on the issue – which has been questioned by Sinn Féin. 

It’s worth remembering that the Northern Ireland Assembly is due to vote on whether to retain the post-Brexit Protocol arrangements in 2024, under the consent mechanism of the Brexit deal. 

Does the halt relate to all Protocol checks?

No, Agriculture Minister Poots is only responsible for sanitary and phytosanitary (SPS) checks. These relate to food and plant safety checks on agri-foods.

The customs elements of the Northern Ireland Protocol are not within Daera’s remit and are not affected by the announcement.

So even if these checks are halted at midnight, there will still be other checks taking place on goods going from Great Britain to Northern Ireland under the Protocol.

Why now?

An obvious question is why is Poots, a vociferous critic of the Protocol, only taking this action now – over a year after the checks started.

His critics within the unionist family insist he should have acted long ago, indeed well before the Protocol became operational in January 2021.

Poots came close to taking action then and threatened to halt work on checking facilities but he ultimately stepped back from that position upon the receipt of legal advice.

The UK Government’s Environment Secretary George Eustice also wrote to Poots then, to remind him that he was obliged to conduct the SPS checks as part of the UK’s international obligations under the Withdrawal Agreement.

There’s always a local politics angle

It’s worth noting that at the weekend, Poots was not selected by the DUP as a candidate for the South Down area, ahead of Stormont Assembly elections to be held in May. Poots had indicated he wanted to leave his Lagan Valley constituency and stand in South Down – today he blamed DUP leader Jeffrey Donaldson, his successor as DUP leader, for his failed attempt.

The party nominated Diane Forsythe as its candidate for South Down instead.

In a statement tonight, the DUP MP Sammy Wilson said that it was “disappointing that Edwin had not accepted this decision”, and that “any Executive challenge would not result in Edwin replacing Diane as the candidate in South Down”. 

Poots gave an interview on the BBC’s Good Morning Ulster earlier today in which he said “Edwin Poots hasn’t gone away” and that his political demise had not happened yet.

Poots has contended that he is taking action now because the legal position has only recently been clarified by a series of recent court rulings that examined issues around Executive authority and decision making.

What has triggered this chain of events?

Late last year, a group called Unionist Voice Policy Studies issued legal proceedings against Poots, warning that it would launch a judicial review against the minister if he did not seek the approval of the wider Executive for continuing the checks.

Poots conceded the case without even going to court and said he would bring a paper to the Executive seeking approval by the end of January.

You can guess what Sinn Féin thinks about this

The DUP’s partners in the NI Executive have branded Poots’ recent actions as an electoral stunt, motivated by poor opinion poll showings.

The party argues that the Executive already took a decision in 2020 that Poots’ department would assume legal responsibility for carrying out the checks.

It is understood that contention is based largely on a minute from a meeting of the powersharing administration on 21 May 2020.

At that time Arlene Foster was DUP First Minister alongside Michelle O’Neill as Sinn Féin Deputy First Minister.

The PA news agency understands that Executive minute reads: “The First Minister advised that;

  1. the UK Government had published its policy approach to the implementation of the Protocol, and that this confirmed the need for arrangements to control the entry of agri-food products into Northern Ireland, but also the need to simplify and minimise such checks;
  2. she and the deputy First Minister would continue to engage with the Westminster Government on this matter, including by means of the JMC (EN) meeting later that day.

“It was agreed that the Minister of Agriculture, Environment and Rural Affairs would take the lead on this issue with the support of a cross Departmental group; and that officials would confirm to Whitehall that the necessary work would be taken forward with Defra, Cabinet Office and the NIO to move this forward.”

Does the civil service have to stop the checks now?

Senior civil servants are in a difficult position.

The DUP insists civil servants are obliged to follow ministerial directions. Sinn Féin and other parties claim civil servants have a primary obligation to abide by the law, so would be unable to follow any unlawful direction.

What about the UK Government’s position?

Parliament is sovereign, so any decision taken by Poots, or the Executive, could in theory be overridden by the British Government.

If Protocol checks were to stop, it would put the British Government at odds with its obligations under the terms of the Withdrawal Agreement.

In such circumstances, the British Government could use its authority to direct that the checks resume.

However, that could place it in an uncomfortable position politically, given Foreign Secretary Liz Truss is currently involved in intensive negotiations with Brussels in a bid to significantly reduce the number of checks required under the Protocol.

The Government has recently signalled that it might not intervene – with Northern Ireland Secretary Brandon Lewis telling ITV News tonight that it was a matter for the Executive, but that they would be looking at the advice that Poots had received.

In its most recent statement on the issue, the British Government said: “We have been clear the operation of checks is a matter for the Northern Ireland Executive in the first instance.

It’s clear the Northern Ireland Protocol is not working as it stands.

“We are determined to negotiate a solution and move forward. 

Our proposal is pragmatic and common-sense: only goods going to the European Union should face customs checks and processes.

“The UK Government is in intensive talks with the EU and our clear priority is to protect the peace process and the Belfast (Good Friday) Agreement in all its dimensions.”

Supporters of Poots highlight that the Good Friday Agreement is also an international treaty and the Government is equally obliged to uphold its terms. They claim continuing with checks without the cross-community support of the Executive would impinge on that 1998 treaty.

The Irish Government and EU have argued that’s the Brexit deal that Boris Johnson signed up to in late 200, and that without the Protocol, checks would go up between the six and 26 counties in Ireland, which would also infringe on the Good Friday Agreement. 

With reporting from Gráinne Ní Aodha.

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