Northern Ireland’s Attorney General may need to become involved in legal proceedings over the DUP’s boycott of north-south political structures, a High Court judge has said.
Mr Justice Scoffield also expressed concern that the North's First Minister Paul Givan and junior minister for the Executive Office Gary Middleton were not represented in the current legal action.
His comments came as Sinn Féin deputy First Minister Michelle O’Neill told the DUP to end the “nonsense” of withdrawing from cross-border engagements and get back to work.
The DUP has vowed to disengage from the structures of the North South Ministerial Council (NSMC), apart from meetings on health issues, as part of its protest against Brexit’s Northern Ireland Protocol.
But last week Mr Justice Scoffield ruled the DUP position is unlawful.
Despite that ruling, DUP Agriculture Minister Edwin Poots did not participate in two planned virtual meetings with Irish ministerial counterparts on environmental issues on Friday.
Under Stormont rules, such meetings with the Irish Government cannot proceed without the participation of both a unionist and a nationalist minister from the Northern Ireland Executive.
Belfast businessman Sean Napier returned to the High Court on Wednesday as part of his legal action against the DUP ministers.
His counsel Ronan Lavery QC said he was not pressing the court to make an immediate order compelling the DUP ministers to attend.
He said: “My focus is on the November 24 meeting, so that all steps are in place to make sure that meeting takes place.”
Mr Justice Scoffield asked Tony McGleenan, counsel for the respondents, if he appeared for all five DUP ministers named in the court action.
Mr McGleenan told the judge that he appeared for Mr Poots, Economy Minister Gordon Lyons and Education Minister Michelle McIlveen, but not the First Minister nor the junior minister from the Executive Office.
He said: “The Executive Office has not responded to the proceedings. The reality is that unless you have joint instructions from both sides of the office, nothing can be said on behalf of the office.”
The judge said he was concerned about the non-representation of two of the respondents, saying the court would not get as “full a picture as it should have”.
The DUP has previously contended it technically did not boycott NSMC meetings because it was not possible to formally schedule them after the First Minister refused to sign off on the agendas.
The judge said the court needed further information on the difference between a meeting being proposed and scheduled.
He said: “Would there be anything to stop me exercising the court’s powers requiring the production of documents? Could I order the permanent secretary of TEO (The Executive Office) to produce whatever documents there are within TEO about the scheduling of these meetings?”
Mr McGleenan suggested the court could take a more phased approach with the documents being requested before an order was made.
Mr Justice Scoffield said: “It does bring a focus into the line which is being offered by the First Minister that there are no scheduled meetings. One of the things I am very keen to get to the bottom of is whether that is right or not.”
The judge added: “Another thing I have been reflecting on is whether it might be appropriate to invite the Attorney General (Brenda King) to become involved in these proceedings, given her entitlement to attend Executive meetings.
“I wondered if it might be of assistance to get the Attorney General’s views of what powers are open to the court.”
The judge said he would review the case on November 5 and said he hoped the court would have further information about the scheduling of NSMC meetings by that date.
Ms O’Neill was asked about the DUP boycott as she attended an event in west Belfast later on Wednesday.
“The DUP need to stop cherry-picking which parts of the Good Friday Agreement they wish to operate, you can’t be in the Executive and not operate the North South Ministerial Council,” she replied.
“So it’s time for them to end their boycott of the North South Ministerial Council and get back to their desk and do their job, which is to lead us through what’s going to be a very difficult winter, which is to tackle the issue of extended waiting lists, which has to do with the Covid pandemic and making our way through that and the economic recovery.
“It’s about the fact that the public and households are going be facing such a difficult winter with rising food prices and fuel costs.
“So it’s time for them to end that nonsense and actually get back to the desk like everybody else.”
