Sinn Fein has accused Edwin Poots of stunt politics over his threat to halt port checks after highlighting previous Assembly correspondence in which the Agriculture Minister acknowledges he has responsibility for them.
Deputy First Minister Michelle O’Neill said Mr Poots is exposing himself to “public ridicule” with claims that he does not have the authority to continue with the checks.
Earlier this week, the DUP politician formally asked the Stormont Executive for permission to continue carrying out Brexit checks at Northern Ireland ports, in a move that could see him ultimately attempt to halt them.
He claims he needs to secure the approval of the wider Executive for his officials to continue overseeing the processes required under the Northern Ireland Protocol.
Mr Poots has threatened to halt the checks unilaterally if Executive approval is not forthcoming.
If the issue goes to the Executive for a vote, the DUP could use its veto to try to stop the checks.
However, Ms O’Neill has used her veto to block the matter from getting on to the Executive agenda, saying the administration took a decision in 2020 that Mr Poots’ Department of Agriculture, Environment and Rural Affairs (Daera) would assume legal responsibility for carrying out the checks.
Sinn Fein has now pointed to a response Mr Poots gave to an SDLP MLA later in 2020 which, the party claims, confirms that position.
In September 2020, ahead of the checks coming into effect, SDLP MLA Patsy McGlone asked Mr Poots what legal advice he had sought in the event he fails to make the preparations required by the Brexit Withdrawal Agreement to carry out the checks.
In his reply, Mr Poots said his department had responsibility for carrying out agri-food safety checks and was required by UK domestic law to comply with that duty.
He also said the department would be open to potential legal challenges or damages claims if it failed to “implement its responsibilities”.
“Legal advice has been sought during various stages of the programme from the Departmental Solicitors Office and from the Attorney General,” he wrote.
“DSO has advised that the obligation to implement the NI Protocol is on the UK Government, and it has given the protocol domestic legal effect by Section 7A of the European Union (Withdrawal) Act 2018. It has ongoing obligations under the Withdrawal Agreement to create the legal effects set out in it.
“The Official Controls Regulation (OCR) requirements are part of domestic law as a result of Article 5(4) of the NI Protocol and S 7A of the European Union (Withdrawal) Act 2018.
“Under the OCR, Daera is responsible for sanitary and phytosanitary (SPS) checks on certain goods coming into Northern Ireland. Daera is therefore required by UK domestic law to ensure compliance with its legal duties under the OCR.”
He continued: “The consequences of a failure by the Department to implement its responsibilities may be a judicial review or a claim for damages by affected parties.
“Furthermore, failure to implement the NI Protocol may result in penalties under the Withdrawal Agreement, to which the UK Government may require the Department to contribute.”
Ms O’Neill tweeted: “Edwin Poots acknowledged to the Assembly that his department is required by domestic law to ensure compliance with obligations to implement SPS checks at ports.
“To avoid more stunt politics and public ridicule, the DUP would be wise to take the legal advice provided.”
Mr Poots has previously contended that recent legal rulings have clarified the legal position around his need to secure wider Executive approval.
Daera has been approached for comment.