DUP ministers who are boycotting cross-border political meetings as part of a protest against Brexit’s Northern Ireland Protocol are in “abject breach of their solemn pledge”, a High Court judge has said.
However, Mr Justice Scoffield declined to make any order mandating the ministers to set a date and agenda for the next meeting of the North South Ministerial Council (NSMC), citing concerns about the courts getting involved in ongoing political matters.
The judge also said that given recent violence in Northern Ireland attributed to opposition to the protocol, it was incumbent on political leaders to be seen to be upholding the law.
Belfast businessman Sean Napier has already secured a court judgment that declared the DUP boycott as unlawful.
However, that ruling has not prompted a change in the DUP policy of non-engagement.
Mr Napier’s lawyers sought a further ruling compelling DUP First Minister Paul Givan to engage with Sinn Fein deputy First Minister Michelle O’Neill and the Irish government to set a date and agenda for the next plenary meeting of the NSMC.
It cannot happen without the participation of the DUP and the party is currently not engaging in the cross-border political structures set up under the Good Friday Agreement, with the exception of meetings related to health issues.
The party contends that the Brexit protocol and its associated barriers on Irish Sea trade have damaged east/west relations and, as such, it should not be business as usual when it comes to north-south relations.
Mr Justice Scoffield refused to grant the mandatory order against the DUP ministers, but reaffirmed his earlier declaration that their policy was unlawful.
He added: “Lest there be any temptation for the respondents to represent this decision as a vindication of their position, the following comments need to be made in conclusion.
“More than two months have passed since the court made the earlier declaration in these proceedings.
“The respondents have continued on the course they conceded was unlawful.
By their actions the respondents, and principally the first respondent by his actions are in abject breach of their solemn pledge
Mr Justice Scoffield
“A variety of business on matters of cross-border interest has not been able to be progressed in the meantime.
“That is because ministers are acting in plain breach of what they know to be their legal obligations.
“Each of the respondents affirmed the ministerial pledge of office, committed themselves to discharge all the duties of their ministerial office, to uphold the rule of law.
“By their actions the respondents, and principally the first respondent (Paul Givan) by his actions are in abject breach of their solemn pledge.”
Mr Justice Scoffield continued: “It is no answer that the respondents wish to protest what they perceive as a political injustice.
“In recent months there have been thankfully sporadic acts of violence claimed by or attributed to those who, like the respondents, oppose the operation of the Northern Ireland Protocol.
“These actions have been justly condemned by, amongst others, the respondents’ party leader (Sir Jeffrey Donaldson).
“It is incumbent upon those in political leadership to reflect on the example set when they choose to wilfully ignore clear legal obligations to which they are subject.
We would expect the First Minister and the DUP leadership will reflect on their position and agree with the court that the rule of law is a cornerstone of our society
Paul Farrell, Sean Napier's lawyer
“It is not difficult to conceive that condemnation of others’ law-breaking might be less influential when political leaders are themselves content to publicly disregard the law in instances of their own choosing.
“It is both profoundly concerning and depressing that the respondents hope to secure political advantage by openly flouting their legal obligations.”
Speaking after the judgment was delivered, Mr Napier’s lawyer Paul Farrell said: “Our client is pleased to have received further declarations from the court that the actions of the DUP leadership and ministerial team in boycotting the NSMC meetings are unlawful.
“We would expect the First Minister and the DUP leadership will reflect on their position and agree with the court that the rule of law is a cornerstone of our society and get back to making things work for the benefit of everyone in Northern Ireland.”