Northern Ireland’s Department of Agriculture has confirmed it is seeking legal advice over ministerial orders to halt construction work and customs charging at ports, with the first steps already underway towards a judicial review.
DAERA permanent secretary Denis McMahon made the revelations at Thursday’s Stormont Agriculture Committee meeting.
McMahon said the Minister Agriculture, Environment and Rural Affairs Gordon Lyons had not given him any advance warning of his plans.
McMahon said: “[He wrote] to me asking me to halt:
- Work on the permanent facilities for SPS checks;
- Charging for SPS checks.”
However, the permanent secretary also revealed that had not actually started charging.
“We are still in the process of developing them,” he said.
McMahon explained the minister had also ordered officials to cease engaging with Defra over the matter.
“We are in the process of seeking legal advice on these two requests and will be briefing the minister accordingly. The minister will also wish to engage with Executive colleagues; he’s done that already and he plans to bring a paper to the Executive,” McMahon said.
“The DAERA approach is that we must always seek to work within the law and that’s really what this comes down to,” he said.
The permanent secretary told the committee that checks are continuing. However, the department has rescheduled some of the planned building work until legal advice is received.
Preparing for a judicial review
McMahon explained that the department had received a “pre-action protocol letter” relating to the minister’s decisions.
“That’s the first step leading to a judicial review,” he said.
On that basis, I can’t discuss the [minister’s] letter, or whether it should have been sent. I don’t want to prejudice the legal processes that are going forward.
“I have been advised by departmental solicitors that it would be improper for me to talk about the details at this time.”
Committee chairman Declan McAleer asked McMahon if he had known about the decision to halt work before it appeared in the press.
“I think there’s two elements to that answer,” McMahon said.
The first: No, I wasn’t aware that the minister was going to write until the Friday [February 1] when the minister told me that he was going to write, and then the letter came subsequently.
“On the issue of charging: The minister had raised the issue previously on February 16 at a meeting and had at that point instructed me to stop work to develop charging.
“The reason why at that stage that wasn’t made public was because I simply said, ‘I’m going to have to seek legal advice before I know whether I can accept that instruction.’ Therefore, we were seeking legal advice on that anyway.
“With charging, there are some legal issues we need to work through anyway; it wasn’t changing anything that we were doing.
“But in terms of the two letters that subsequently came, no, I didn’t know about those until lunchtime on the Friday when the minister called me to inform me that he would be writing to me.”