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The move by Agriculture Minister Edwin Poots follows the serving of a pre-action letter, brought by a group called Unionist Voice Policy Studies, which claimed that port checks required by the protocol are unlawful because they have not received Executive approval.
The group had stated an intention to commence judicial review proceedings if the minister did not declare an intent to refer decisions on the checks and inspections to his Executive colleagues for approval.
Mr Poots did not refer the protocol checks to the Executive for approval before the introduction of the arrangements in January last year.
A letter from Mr Poots to loyalist activist Jamie Bryson, the named person taking forward the case on behalf of the group, said that he noted the pre-action letter which was sent to him on December 21.
Mr Poots’ letter, seen by the PA news agency, continues: “I can confirm that it is my intention to bring a paper to the Executive in the coming weeks (and not later than the end of January) in relation to the continued and future implementation of the protocol.”
Mr Poots’ paper is unlikely to be voted on by the Executive, as it would require the agreement of both the DUP First Minister Paul Givan, and the Sinn Fein deputy First Minister, Michelle O’Neill, to make it onto the agenda of any meeting.
However, in the absence of Executive agreement on the issue, one option for Mr Poots, whose DUP party opposes the protocol, could be to order a stop to the port checks that his department is responsible for.
That could potentially put the administration at odds with the UK Government’s legal duty to implement protocol checks.
Mr Poots and his Department of Agriculture, Environment and Rural Affairs are under a legal obligation to fulfil the commitment made by the UK Government in the Brexit Withdrawal Agreement to carry out the checks on goods arriving in Northern Ireland from Great Britain.
Mr Poots told the BBC that his attempt to bring the paper to the Executive was not a pre-election stunt.
He said: “This is about a piece of work that we have been doing over the course of the last year in terms of mitigating the damage that has been done to Northern Ireland as a consequence of the protocol.
“The DUP’s opposition to the protocol isn’t something that is recent.
It is not a stunt, it is for real
“It is not a stunt, it is for real.”
But Sinn Fein MP John Finucane accused the DUP of trying to “disregard the law”.
He said: “Efforts to undermine what are legal obligations should not be indulged and should not even be put before an Executive which, quite frankly, has an agenda to deal with so many other matters.
“There are so many other pressures that the Executive need to be dealing with, rather than an attempt by the DUP to disregard the rule of law.”
The protocol, which was agreed by the EU and UK as a way to keep the Irish land border free-flowing post-Brexit, has created a series of new customs and regulatory barriers between Northern Ireland and the rest of the UK.
Negotiations between London and Brussels to resolve issues with the operation of the protocol are due to resume this month.
A series of grace periods limiting the volume of checks required under the protocol have been indefinitely extended by the UK.
People are sick of constant machinations around the protocol, the majority of people here support it and want to benefit from the unique opportunities it offers
Colum Eastwood, SDLP
SDLP leader, Colum Eastwood, said any DUP attempt to block the implementation of the protocol is “doomed to failure”.
He said: “The latest claim that the DUP are set to launch an attempt to block the implementation of the protocol is yet another attempt to distract from the issues that really matter to people across the North.
“People are sick of constant machinations around the protocol, the majority of people here support it and want to benefit from the unique opportunities it offers.
“Any attempt by the DUP to stop the implementation of the protocol is doomed to failure.
“This is an international agreement and Executive ministers from all parties have a legal obligation to uphold it.
“A bid to frustrate it from the DUP or anyone else will achieve little except take time away from more important issues and create a legal quagmire.”