LAST UPDATE | 11 Oct 2021

THE LEADER OF the DUP has said it is not acceptable for Northern Ireland to fall within the jurisdiction of a court over which it has no control.

Jeffrey Donaldson made the remark as he was pressed on the DUP position on the UK government’s demand for the EU to remove the arbitration role of the European Court of Justice (ECJ) from the Northern Ireland Protocol.

Fielding media questions at Stormont, Donaldson was asked why the ECJ was not referred to explicitly in his party’s seven tests for judging efforts to resolve issues with the protocol.

Donaldson said ECJ jurisdiction fell within the fourth test set out by the party: “Give people in Northern Ireland a say in making the laws that govern them”.

“Actually that is part of my test – that I want to know how the people of Northern Ireland are going to be dealt with in all of this,” he said.

“It is not acceptable for Northern Ireland to have to accept laws and the jurisdiction of a court over which we have no control and in which we have no say. That is not the way forward.”

Donaldson added: “We are very clear that the governance arrangements, how any future measures and arrangements that are agreed with the EU are taken forward, how they are governed is very important, because there is the potential for future divergence between the UK and the EU, and we don’t want Northern Ireland once again caught in the middle of all of that.”

Earlier, Sinn Féin accused the UK Government of shifting the goalposts by demanding the removal of the European Court of Justice’s (ECJ) role in the Northern Ireland Protocol.

Declan Kearney questioned whether the UK government was throwing a “dead cat” on the negotiating table because the EU was about to “call their bluff” by tabling proposals that would resolve the practical difficulties with Irish Sea trade.

However, Donaldson said there are “genuine issues” with European judges having the final say on trading disputes involving Northern Ireland.

The EU will outline what it has described as “far-reaching proposals” on Wednesday in a bid to resolve issues with the protocol.

Brexit negotiator David Frost has said the ECJ’s oversight role in arbitrating over any future UK/EU disagreements on the protocol must be removed if both sides are to resolve the stand-off over the contentious post-Brexit trading arrangement.

Critics of the UK Government claim it is now raising a new fresh red line when engagement to date has been focused on reducing everyday checks and processes on goods moving from Great Britain to Northern Ireland.

Kearney, a Sinn Fein junior minister at Stormont, told BBC Radio Ulster: “The problem throughout, and particularly over the last nine to 10 months, is that as we have attempted to double down and deal with these issues the goalposts continuously seem to change from the perspective of David Frost’s negotiation strategy and I think now that we’re seeing the goalposts shift once more.

“I think it can be read potentially one of two ways.

This may well be a negotiation tactic. We’re now approaching the point where hopefully all of these issues can be successfully covered off and we can in fact see all the difficulties with the protocol eliminated and David Frost is simply trying to up the ante and bring some more heat into the talks process that will follow publication of the European Union proposals.

“However, there is another scenario. And that is they are at this point in time, that is David Frost and the Tory Government, finding that their bluff has finally been called and the European Union is indeed determined to bring forward substantive proposals on all of these areas – medicines, agri-food, customs, and governance – that will in fact bring certainty, simplicity and stability for our business sector here in the north and across the island economy and they’re running scared from that.

“Hence, the dead cat of the European Court of Justice being thrown onto the table.”

Kearney said it would be a “disaster” if the UK Government walked away from the protocol.

Donaldson said he understood why the UK government had concerns over the ECJ.

He insisted it was not a new issue and had been flagged in the Government’s Command Paper on the protocol published in the summer.

The DUP leader however declined to be drawn when pressed whether the issue would be a “red line” for his party.

He said he would not judge the EU proposals until he had sight of them, insisting his priority was the removal of the Irish Sea border.

Speaking in the Stormont Assembly this afternoon, First Minister Paul Givan emphasised the “harm” being done by the protocol, adding it “isn’t working and that change needs to be made”.

“I look forward to the proposals later this week from the European Union, I look forward to the United Kingdom Government in terms of how they will respond to that and let us get to a place where east/west no longer has any barriers, and of course that is interdependent to the north/south relationship,” he told MLAs.

‘Unlawful’

Nationalist parties earlier called on the DUP to drop their boycott of north-south meetings after a High Court judge ruled the action unlawful.

Donaldson announced last month that his party would disengage from North South Ministerial Council (NSMC) meetings as part of its campaign of opposition to the protocol.

At Belfast High Court today, Justice Scoffield said the decision to withdraw from the NSMC is unlawful.

He added: “It frustrates, is contrary to and is in breach of legal duties contained in part five of the Northern Ireland Act 1998.”

SDLP Infrastructure Minister Nichola Mallon said ministers must live up to their obligations under the Good Friday Agreement.

She added: “The ruling from the High Court is significant and it demands an immediate response from the DUP leadership. The decision to suspend north-south cooperation was intemperate, ill-considered and has now been confirmed as unlawful.

It is time for ministers involved in this boycott to take a step back and commit to upholding their legal obligations.

High court has ruled that DUP boycott of North-South Ministerial Council was, and is, unlawful. Ministers need to do their jobs, act within the law, and stop impeding progress. NSMC is due to agree €1bn PeacePlus funding this month. This cannot be jeopardised by DUP play acting.

— Michelle O’Neill (@moneillsf) October 11, 2021

Sinn Féin deputy First Minister Michelle O’Neill tweeted: “High court has ruled that DUP boycott of North-South Ministerial Council was, and is, unlawful.

“Ministers need to do their jobs, act within the law, and stop impeding progress. NSMC is due to agree 1bn euro PeacePlus funding this month. This cannot be jeopardised by DUP playacting.”

In response to the court ruling, a DUP spokesman said: “The High Court judgment is further proof that the conditions to trigger Article 16 have been met.

“If an early resolution between the UK and EU cannot be achieved, we call upon the UK Government to invoke the terms of Article 16 to avoid a further deterioration in political and economic stability in Northern Ireland.”

Five DUP ministers were named as respondents in the court case, First Minister Paul Givan, junior minister at the Executive Office Gary Middleton, Education Minister Michelle McIlveen, Agriculture Minister Edwin Poots and Economy Minister Gordon Lyons.

Givan was asked about the court ruling during ministerial question time at Stormont.

He said: “Obviously, we will read through the judgment that has been passed in the courts.

“Whenever it comes to the working of the north-south institutions my party has made clear we do wish to see all of the parts of the Belfast Agreement upheld, but they are inter-dependent, they are inter-linked and the east-west dimension has been trashed as a result of the Protocol.”

Alliance Party MLA Stewart Dickson said he hoped the DUP would now reconsider their non-attendance at north-south meetings.

He said: “Now the High Court has made this ruling, there must be consequences for the DUP’s actions, including sanctions if appropriate.

“However, I hope this will now lead the DUP to reconsider their move.

It is vital the institutions are allowed to function and not be subjected to repeated threats.

TUV leader Jim Allister said the DUP had been left with a choice of facilitating the protocol, or resigning.

He added: “The union-dismantling Protocol partitions the UK and treats Great Britain as a third country.

“If one is a unionist, and can only be a minister if you are party to that trashing, the only honourable course is to resign.”