The last time DUP minister Edwin Poots ordered a halt to sea border checks, in September 2020, the government diplomatically pretended it had not overridden the order.
Sammy Wilson complained in the Commons that checks had resumed within a week because the UK secretary of state for agriculture had “instructed civil servants in Northern Ireland to put up border posts”.
Deputy prime minister Michael Gove thanked Wilson “for the reminder, with some regret on his part, we are erecting border inspection posts” - but said nothing more.
Questioned by the News Letter, the department of agriculture in London would only say it was “working closely” with Stormont on the protocol and “this includes being clear about our expectations of the Northern Ireland executive.”
In other words, everyone had been given an informal nod to get back to work.
Under the law enacting the Good Friday Agreement, the government has complete authority to override Stormont to ensure the UK meets its international obligations, such as the protocol. But this is considered a drastic measure and in 2020 it had never been used. It would be the following year before London ordered Stormont to commission abortion services in compliance with a United Nations charter. The controversy over that intervention reveals how hesitant even this Tory government is to countermand devolution, even with clear powers to do so.
It was particularly delicate ordering sea border checks in September 2020. The government was passing the UK Internal Market bill, notorious for its ‘limited and specific’ breach of the protocol - Gove and Wilson’s exchange was during a debate on that bill.
By politely dismissing Wilson, Gove wanted to make the point the UK was still serious about implementing a sea border. He just did not want to make the point too forcefully, to avoid upsetting his own backbenchers or weakening the government’s hand in EU negotiations.
We are essentially back in this situation with Poots’ latest order to halt checks.
This began with a legal argument by loyalist activist Jamie Bryson that checks require a full executive vote. While there is no doubt a vote should have occurred, there is confusion over whether it is too late to stop checks now they have started. However, all this is ultimately irrelevant as Stormont still has to comply with the UK’s international obligations.
Last Friday, foreign secretary Liz Truss was asked by the Belfast Telegraph if London will override a Stormont order. She replied it is “a matter for the executive” - as slippery an evasion as the 2020 statement on “our expectations of the Northern Ireland executive”.
Some journalists have speculated the government could step back this time and let the courts sort it out. But Truss does not need to wait months for a judge to inevitably order everyone back to work. She wants protocol talks to conclude with a deal by February 21, as does the EU and the DUP.
In the meantime, the DUP needs to pretend it is doing something to influence those negotiations. Picking a sham fight over the sea border fulfils that role. Bryson has been congratulating himself for getting the DUP to act, yet all he has done is provide the party with an opportunity to string him and his followers along.
London can see the advantage of indulging this for three weeks if it helps the DUP sell whatever deal emerges. Judging by its lack of reaction, it seems Brussels sees no harm in it either.
But that cannot be how it feels to the Stormont officials left without political cover.
They have sought their own legal advice on obeying Poots’ order. Bryson must know the DUP is using him and that if officials do not suspend checks, even briefly, he will have nothing to show for his efforts.
He has begun complaining about “unelected civil servants” plotting “a constitutional coup on behalf of nationalists” with “[profound] consequences for political and societal stability”.
Officials should not be beyond scrutiny, as RHI showed. Complaints do not constitute threats just because they are made by loyalists.
Nevertheless, there have been attempts to intimidate sea border staff. The PSNI said last year paramilitaries were not involved but there was a “febrile” atmosphere.
It is unconscionable for the government and the DUP to leave public servants to face this alone, even for just a few weeks, no matter how enormously convenient it is for all sides.
The courage and professionalism of those officials is putting their political masters to shame.
