By Jamie Bryson
It transpired in the High Court on Monday in a legal challenge brought against the order by Edwin Poots to halt Irish Sea border checks, that in fact there may never have been any obligation to conduct such checks at all.
That is the case now being made by DAERA, in a remarkable story completely missed in substance by the entirety of the mainstream media.
As a reminder, Unionist Voice Policy Studies (UVPS) brought a legal challenge against DAERA, on the basis that the ongoing implementation of the Protocol required Executive approval, the absence of which deprived Minister Poots of continuing authority to conduct the checks, pursuant to section 28A (10) of the Northern Ireland Act 1998.
In a short period of time after having this matter drawn to his attention, Minister Poots conceded our challenge and confirmed he would seek to refer the matter to the Executive.
This paper to the Executive was blocked by Sinn Fein, who had already declared their intention to block it without even seeing it, thus rendering the decision procedurally flawed, and in addition none of the parties had appreciated their obligations under section 46 (1) of the Internal Market Act 2020.
After taking legal advice from one of the United Kingdom’s foremost constitutional lawyers, Edwin Poots agreed with the initial point made by UVPS that in the absence of Executive approval, he had no authority to continue the checks.
Accordingly, an order was issued to halt the Irish Sea border checks. Within hours Sinn Fein surrogates had launched legal action, and Mr Justice Colton issued an interim order staying the order to halt checks until the legal challenge concluded.
However, as the case was about to get underway on Monday, a potential bombshell was dropped. It seems that due to a legislative error, that there is in fact no legal obligation at all to conduct checks between GB-NI, and that there never was such an obligation.
Rather, as a matter of EU law, the requirement is that the checks take place at the entry point into the European Union, and thus in fact a proper application of EU law leads to the conclusion that the legal obligation is in fact to conduct checks at the land border.
Here is why:
Article 5 (4) of the Northern Ireland Protocol commits the United Kingdom to apply the provisions of Union law listed in Annex 2 of the Protocol. This obligation has the force of domestic law pursuant to section 7A of the European Union (Withdrawal) Act 2018. So far, so good.
The applicable regulations in relation to checks and controls is Regulation 2017/625. This is what requires checks to be carried out on animals and goods. Again, so far, so good.
Then if we turn to the EU’s technical briefing note on the Protocol https://ec.europa.eu/info/sites/default/files/brexit_files/info_site/20200430_note_protocol_ie_ni.pdf and go to (b) (iii) it can be seen it says what the UK-EU has agreed “implies” there will be checks on goods moving GB-NI.
But hold on, if this only implied, where is the legal obligation?
So, lets go back to regulation 2017/625- but not the updated GB version post Exit Day, but rather the original version. Remember the updated GB version has no applicability to NI, because the EU Law, as it was prior to Exit Day, is what continues to apply in NI.
Let’s go first to Article 3 (40) of regulation 2017/625 and look at the definition of “entering the Union” or “entry into the Union” (references to the ‘Union’ is to European Union”)
“(40) ‘entering the Union’ or ‘entry into the Union’ means the action of bringing animals and goods into one of the territories that are listed in Annex I to this Regulation from outside these territories, except in relation to the rules referred to in point (g) of Article 1(2) for which these terms mean the action of bringing goods into the ‘Union territory’ as defined in the second subparagraph of Article 1(3) of Regulation (EU) 2016/2031;”
We then turn to Annex 1 and to the territories listed, but…oh dear… Northern Ireland is included at (28) as part of the United Kingdom of Great Britain and Northern Ireland.
Therefore, when you move goods for example from Liverpool to Belfast, you are not “entering the Union” from one of the territories, rather you are moving within one of the territories.
The point of entry into the Union is when you enter the Republic of Ireland.
Accordingly, due to the failure to amend the EU law to change the definition of UK to exclude Northern Ireland, Regulation 2017/625 does not in fact impose a legal obligation to conduct checks and controls pursuant to Article 5 (4) of the Protocol.
As such, there is not (nor never was) a legal obligation to conduct checks on goods moving GB-NI. The ‘implication’ as set out in the technical note was never actually legislated for and remains no more than an implication or pious wish.
There has been no credible answer to this point. The most common claim has been a reference to Article 7 of the Withdrawal Agreement and 13 (1) of the Protocol as justification for the requirement, but neither of these provisions can change the meaning of Union territory, so they add nothing.
And now for the best point. The Executive parties (SF, SDLP and Alliance) have publicly and privately in writing committed themselves to the position that the Executive already agreed that DAERA would be responsible for implementing the legal obligations flowing from the Protocol.
That was their defence against the section 28A point. However, that defence is now turned against them.
It seems the legal obligation is in fact to conduct checks at the entry point into the European Union, due to the wording of regulation 2017/625, and of course the other Executive parties have already essentially approved- indeed demanded- Minister Poots proceed to discharge his obligations on implementing the regulations flowing from the Protocol.
As such, Minister Poots should do so and issue a direction to move all checks to the entry point to the European Union, as required by law. Put simply; apply the law and turn the Irish Sea border into the Irish land border.