The North’s Minister for Agriculture has defended his decision to halt work on permanent border control posts at Northern Ireland’s ports despite challenges from three of the five parties in the Northern Executive.
Sinn Féin, the SDLP and the Alliance Party criticised Gordon Lyons’ move, questioning whether he has the legal authority to make such an order and accusing him of acting unilaterally on a significant and controversial issue which requires the agreement of the Executive.
The Sinn Féin Assembly member Declan McAleer put it to Mr Lyons during an urgent oral question in the North’s Assembly on Monday that the “vast majority of people will see this as another DUP stunt, only a very dangerous stunt that will serve the purpose of inflaming tensions within loyalism, and unfortunately from the past we know where than can lead us to.”
The DUP minister responded that it was "entirely proportionate and reasonable to take this approach, and I would hope that people would put their views on Brexit to a side for the moment and see what is actually best for the people that we represent."
Mr Lyons announced on Friday that he was ordering a halt to work on permanent inspection facilities for post-Brexit regulatory checks on agri-food goods arriving from Great Britain. He also stopped the further recruitment of staff, and said traders importing goods from Britain would not face charges.
Mr Lyons's decision was discussed at an Executive meeting on Monday, and it was agreed he would seek legal advice from the North's Attorney General, Brenda King. Discussions took place on Monday, and it is understood Ms King advised such a decision would be required to come before the Executive.
The issue is expected to be discussed again by ministers at another meeting of the Executive on Tuesday.
Minister for Finance, Sinn Féin's Conor Murphy, told the BBC on Monday he had also sought legal advice from the Attorney General as he was "very clear that the Minister hadn't got the authority to instruct officials to stop any work."
The Attorney General’s advice, he said, was a matter for the Executive, but he added that “my view on it, I felt, was reinforced.”
A spokesman for the European Commission said on Monday he expected permanent Border Control Posts (BCPs) at the North's ports to be ready by the middle of this year, and the UK had commitments to meet regarding the implementation of the Northern Ireland protocol.
"We have received reassurances that these announcements last week are not going to affect the current work of the temporary border control posts in Northern Ireland, so the relevant checks and controls are continuing to take place as usual," Daniel Ferrie said.
"We expect the same commitment when it comes to the UK Government's obligations under the protocol regarding the permanent facilities that need to be put in place by the middle of this year, by the middle of 2021, in line with the protocol and also in line with the Joint Committee decisions from last December."
A spokesman for the UK prime minister said the issue was for the Northern Ireland Executive to resolve.
The checks on goods required under the Northern Ireland protocol, which have been taking place in temporary facilities since the end of the Brexit transition period, are continuing at the North’s ports.
Construction work has not yet begun at any of the permanent sites, with work is still in the design and preparatory stages.
Unionists are opposed to the protocol because it places a customs and regulatory border between Northern Ireland and the rest of the UK. Pro-Remain parties argue that these are the inevitable consequence of Brexit, which the DUP supported, and the best way to solve any issue is through the protocol.
In the Assembly on Monday the Minister outlined the reasons for his decision, which included “a lack of clarity on a range of legal issues which needs resolved in respect of the implementation of the protocol and the functioning of the internal UK single market.”
He said he was “concerned we do not have the required certainty to forward plan” given the number of factors outside his department’s control such as “the role of the ongoing discussions including those at Joint Committee and the lack of certainty that this presents, the uncertainty around grace periods and the undeliverable and unworkable requirements for retail consignments if a solution is not achieved.”
He also said he had concerns over his legal duty to comply with the UK’s Internal Market Act.
The SDLP MLA Matthew O’Toole questioned the timing of the decision, saying that “if this was a reasonable step to take, can I ask why you did it late on Friday afternoon, can I ask why no official statement has been issued by your Department ... is your Permanent Secretary seeking further legal advice on whether he should proceed with your instruction or not?”
Mr Lyons said it was something he had been looking at “following the concerns that have been raised with me, and I don’t think it’s unreasonable in any way for me to want to make sure that appropriate action is taken.”
The Alliance MLA Stewart Dickson said business "thrives on certainty" and asked the Minister to "name for us ... those businesses and organisations in Northern Ireland that told you that the best course of action you could take would be to stop the building and to stop the recruitment of employees?"
The Ulster Unionist MLA Mike Nesbitt suggested that given that "Europe thinks we have got in Northern Ireland we have got the best of both worlds" it would be an "act of great friendship and neighbourliness" to extend that to the Republic of Ireland by moving the checks at the North's ports to Southern ports and airports "over goods that are definitely heading to continental Europe.
“Therefore the EU would take back control of their inspections, we would solve all unionist objections and the Republic would benefit, so it would be a win, win win.” –Additional reporting PA