Brexit Facts4EU.Org Summary

Facts4EU.Org believes this is a seminal moment in the negotiations around the Protocol and also has the potential to have a significant impact on the Stormont elections in May. For this reason we thought we should provide our readers with a timeline of what has happened and why. Here are the facts that we have been able to discern from a number of disparate published sources.

What happened in 2020?

• Sep 2020: Edwin Poots, Northern Ireland Minister for Agriculture, with responsibility for administering all observance of food standards, had initially allowed his officials to plan the building of border control posts at Northern Ireland ports but changed his mind so construction would not go ahead. Officials then requested their own legal advice.
• 8 Sep 2020: Poots eventually backed down, giving as one explanation that legal advice from the solicitor's office and from NI Attorney General, Brenda King, suggested his officials could disregard his order.
• Apparently, the NI Attorney General’s advice was that Poots had a legal obligation under domestic, European and international law to allow the internal UK border to be built and operated. She said that a decision to pause work on the sea border would require an Executive order.
• At the time of this potential civil service rebellion in September 2020, one of Boris Johnson's ministers wrote to Mr Poots' top civil servant to tell him there was an expectation that he would carry out the checks. All this was happening while Michael Gove was the minister responsible for handling the UK-EU relationship.

What happened last year, in 2021?

• 1 Jan 2021: The transition period ends and the Trade and Co-operation Agreement comes into force. Edwin Poots allows SPS checks at Northern Ireland ports and airports.
• June 2021: It should be remembered that the checks Poots allows are initially limited by ‘grace periods’ of six months that the EU objected to and threatened legal action over. Before the six months are up the UK government extends the grace periods indefinitely while negotiations take place about the Protocol.
• 21 Dec 2021: Anti-Protocol campaigner and lawyer, Jamie Bryson and his ‘Unionist Voice Policy Studies’ write to NI Department of Agriculture, Environment and Rural Affairs, accusing it of failing to act in accordance with S28A (5) of the Northern Ireland Act 1998 and associated paragraph 2.4 of the Ministerial Code. These specify that any significant or controversial issues must be discussed by the NI Executive.
• 23 Dec 2021: Edwin Poots decides his officials should immediately increase checks on goods entering the Republic of Ireland via Northern Ireland, while checks on goods entering Northern Ireland from Great Britain are only conducted on the ‘basis of risk’ of entering EU territory.

HEADS UP - There have always been checks on animals products... but they were proportionate

It should be understood that sanitary and phytosanitary (SPS) checks always existed at Northern Irish ports for animals arriving before the introduction of the Protocol and before the EU membership referendum of 2016. This is because it was recognised the Irish Sea provided a natural boundary for British authorities checking against diseases such as foot and mouth. The checks were however random (not every animal) and sporadic (so people would not know when they might happen). The level and detail of these checks is significantly different from those demanded by the EU, so when people talk of “stopping” checks they really mean returning to the previous light-touch procedures.

What has happened so far this year, 2022?

• 26 Jan 2022: An audit conducted by the EU of inspection procedures at NI ports during June 2021 is lodged at the NI Assembly's Library, as reported by Facts4EU here. This audit was to measure compliance with the Protocol and the EU Commission is scathing in its criticism, saying the inspections and infrastructure “are not fit for purpose”. It wants “rigorous implementation”. Amongst many complaints it says passengers arriving on ferries from Great Britain are not having their luggage inspected. Although generally ignored by the media because of other news stories it highlights the real potential for further discord if the grace periods are ever ended.
• 27 Jan 2022: Poots wishes to table an 11-page paper to the Executive as part of plan to “stop” the Protocol checks but Sinn Fein members veto the paper before discussion. The paper argued the current situation had no statutory basis. It also states Poots doesn't have the resources to implement the whole Protocol (ironically because he blocked recruitment of further staff).
• 28 Jan 2022: The FDA union (representing senior civil servants), asks that officials be given “clear unambiguous guidance in the event of ministers issuing reckless and potentially illegal instructions”.
• 31 Jan 2022: Liz Truss, Foreign Secretary and now UK-EU negotiator, indicates UK Government will not insist the order is lifted.
• 2 Feb 2022: Poots receives legal advice he can make the order to “stop” implementing the Protocol level of animal checks and he confirms that is what he is instructing officials to do. The other checks requiring paperwork will and do continue.
• The EU suggests that the UK should instruct all checks to continue and the Irish Foreign Minister Simon Coveney naturally agrees. Her Majesty’s Government again states it is for the devolved Northern Ireland Minister to deal with.
• 3 Feb 2022: An emergency judicial review is sought in Belfast High Court and adjourned until today Friday 4 February. The instruction on “stopping” inspections is effectively put in abeyance until at least Monday.

The outcome is that the Executive cannot reverse Poots’ decision. Only the Court can now do this.

Due to the First Minister’s resignation the existing Covid regulations will naturally fall in March without renewal – which is another win for the DUP over Sinn Fein. Reports that inspections are still taking place might also refer to the other checks for anything from car parts to carpets as these were not covered by Poots’ instruction.