NI Protocol: Poots' suspension of Brexit checks unlawful, court rules

Since January 2021 food products being sent from Great Britain to Northern Ireland have required a range of checks and controls due to the NI Protocol

Edwin Poots' instruction to halt checks on goods entering Northern Ireland from GB was unlawful and taken for political reasons, the High Court has ruled.

The court quashed the instruction of the former Democratic Unionist Party (DUP) agriculture minister.

The DUP opposes the Northern Ireland Protocol, which imposed the checks.

A challenge to the legality of the order was brought by a Sinn Féin member, another applicant named Edward Rooney, and Belfast City Council.

Mr Poots was agriculture minister when he issued the instruction in February 2022, shortly before the Northern Ireland Assembly collapsed when the DUP withdrew its first minister in protest against the protocol.

• What is the Northern Ireland Protocol?

• The Northern Ireland Protocol: What does each side want?

Since January 2021, food products being sent from Great Britain to Northern Ireland have required a range of checks and controls due to the protocol.

The protocol is a deal between the UK and EU which keeps Northern Ireland in the EU's single market for goods, avoiding the need for a hard border with the Republic of Ireland after Brexit.

Unionist politicians have condemned what they regard as the imposition of a trade border in the Irish Sea.

Mr Poots said he had received legal advice that he could direct a halt to the checks in the absence of approval for the inspections from the wider Stormont Executive.

'Overtly political'

At the High Court on Thursday, Mr Justice Colton found the wider executive did not need to approve the checks.

"It is difficult to draw conclusion other than the decision under challenge was an overtly political one, taken for political reasons, and as part of a political campaign directed in opposition to the protocol," he said.

Analysis: Ruling comes as no surprise

By Louise Cullen, BBC News NI agriculture and environment correspondent

The judge's comments that Edwin Poots' instruction was "overtly political" will come as no surprise to those who have watched the former agriculture minister and his DUP colleagues collapse the assembly in their opposition to the legislation that seeks to prevent a hard border on the island of Ireland.

The judge recognised there was political opposition to the protocol, but said "any politically motivated decision" that was not in accordance with the law was "unsustainable and must be set aside as a consequence".

It's a fair bet that, had Mr Poots still been in place, there would be further court action to follow after this decision.

As it is, it remains to be seen what steps the Department of Agriculture, Environment and Rural Affairs will now take in the absence of a minister.

The decision to formally quash an instruction that never took effect comes as London and Brussels hold more talks to try to resolve the impasse, and after figures this week showed sales to GB had increased in the year since the protocol began to be implemented.

He said the instruction had been issued at a time when the then DUP First Minister Paul Givan's resignation was imminent, and consistent with the party's previously declared strategy of opposition to the protocol.

"It may well be that for politicians, as the DUP leader said in September 2021 'there are no easy answers when the law requires one thing and politics demands something else'," the judge said.

"From the court's perspective there is an easy answer and that is that the law must be obeyed.

"Any politically-motivated decision that is in accordance with the law is unimpeachable.

"Every such decision which does not satisfy this indelible standard is unsustainable in law and must be set aside as a consequence."

Formally quashing Mr Poots' order to staff, Mr Justice Colton confirmed: "By issuing the instruction on 2 February 2022, the minister was in breach of his legal obligations.

"The instruction was unlawful and of no effect."

Despite Mr Poots' instruction, border checks on agri-food products entering Northern Ireland have been continuing pending the outcome of the judicial review proceedings.

Anonymity was granted to the Sinn Féin member who brough the challenge because of fears he might be targeted by loyalist paramilitaries.