Richard Bullick: The DUP won key safeguards for unionism at St Andrews, yet now the party seems to be sleepwalking into removing them

On Tuesday the modestly titled Executive Committee (Functions) Bill is set to conclude all its Stormont stages and upon Royal Assent will become law.
Ian Paisley and senior members of the DUP at St Andrews in Scotland in 2006 after the deal. The party made constraints on ministers one of its centre-piece demands for the restoration of Stormont, yet now, under a different leadership, it is helping to push through legislation that will remove those constraintsIan Paisley and senior members of the DUP at St Andrews in Scotland in 2006 after the deal. The party made constraints on ministers one of its centre-piece demands for the restoration of Stormont, yet now, under a different leadership, it is helping to push through legislation that will remove those constraints
Ian Paisley and senior members of the DUP at St Andrews in Scotland in 2006 after the deal. The party made constraints on ministers one of its centre-piece demands for the restoration of Stormont, yet now, under a different leadership, it is helping to push through legislation that will remove those constraints

This bill, which has been rushed through the assembly in a matter of weeks and has to date received little or no legislative scrutiny, will fundamentally affect decision-making in Northern Ireland.

From the public comment on the bill, there is no appreciation of the implications of some of the proposed changes. Instead, MLAs are sleepwalking into making profound constitutional amendments.

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Twenty years ago ministers enjoyed considerable autonomy in relation to decisions within their department and famously the then minister for education abolished the eleven plus exam on his last day in office without recourse to the executive.

Richard Bullick, a former barrister, was special advisor to Peter Robinson and Arlene Foster as first ministerRichard Bullick, a former barrister, was special advisor to Peter Robinson and Arlene Foster as first minister
Richard Bullick, a former barrister, was special advisor to Peter Robinson and Arlene Foster as first minister

Allowing ministers such power within their departmental remits did not sit well with democratic accountability or joined up government and the DUP made the reform of these arrangements a centre-piece of its terms for the restoration of devolution. Admittedly, there was also a significant element of being able to limit the capacity of Sinn Fein ministers to pursue their political and constitutional agenda.

In a 2004 policy document, the party argued that legislation “would be required to ensure that ultimate power would rest with the executive as opposed to the individual departments”.

To be clear the DUP’s intention was to ensure that any important decision could be required to secure executive approval and the resulting provisions meant that unionist (and nationalist) consent was required.

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The provisions that were legislated for were complex and interlocking. The underlying objective was achieved in two carefully worded statutory tests for which decisions would require executive approval. These arrangements operated successfully from 2007 and on only a few occasions did DUP ministers feel compelled to go to court to successfully enforce the arrangements the party had largely devised.

The rationale for the present bill arises out of a Court of Appeal decision to the effect that a significant planning application required executive approval. Understandably, the executive wished to bring forward an amendment to rectify that situation, but more controversially it has also chosen to amend a provision relating the carefully calibrated tests for executive approval more generally.

There is little evidence that the drafters of the objectionable clauses of the bill were informed of the purpose of the original provisions. As a result the proposed changes seriously undermine the DUP’s claim to have a veto on all important decisions in NI.

The essential purpose of the amendment is to redefine a test for full executive consideration in a way which would increase ministerial autonomy. This was done by limiting the meaning of what constitutes a ‘cross-cutting’ matter, reducing the range of decisions that have to come to the executive.

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Why then are DUP the appearing to be reversing a long-standing policy? My view is that it is not a change of policy but flows from misconceptions in what is a complex area of law.

Firstly, there is a custom and practice argument which asserts that the new clause reflects the sort of matters that actually come before the executive for decision. While this may be true, it also entirely misses the point. The real issue is not what normally comes to the executive, but what can be required to come where other ministers take exception to a proposed decision.

Secondly, there is the argument that the legislation restores the test for what constitutes cross-cutting to the standard which existed before the Buick decision (on a regionally significant planning application), but after the changes brought about by the 2006 St Andrews Agreement.

The new test for cross-cutting would mean that there would be no requirement for executive agreement, “unless that matter affects the exercise of the statutory responsibilities of one or more other ministers more than incidentally”.

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Notably, there is no mention of ‘statutory’ responsibilities in paragraph 19 of the Belfast Agreement. This distinction has significant application for functions where there is no statutory underpinning for what departments do in practice.

Even more significantly the “more than incidentally” requirement, above, is demonstrably a greater level of “cross-cutting” than requirements which have already been found to satisfy the statute by the courts. These include reference to, “touches on” (JR 65) “issues arise in a multitude of less obvious circumstances” (Central Craigavon), “engages the responsibility of various Ministers” (Minister for Enterprise Trade and Investment).

Self-evidently, if the intention of the new clause had been to reflect previous case law, then the language in those judgments could have been deployed for statutory purposes. It was not.

Thirdly, misplaced comfort may be taken by what is known as the ‘significant or controversial’ test, though this simplification ignores a crucial second limb of the provision, which also requires the decision to be ‘clearly outside the scope of the agreed programme’ for government.

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The boundaries of this limitation are unclear, though unambiguously it weakens the short-hand catch-all test.

And fourthly, it has been suggested, both at the Executive Office Committee and in the assembly, that the so-called ‘three minister call in’ provision in the legislation provides an ultimate safety net. This provision, it is said, would allow any three ministers to require a matter to come to the executive and deprive the minister of the authority to take such a decision (thus rendering the debate on cross-cutting academic).

As the argument goes, there being four DUP ministers, this provides the needed assurance for unionists fearful of republican ministers going on ‘solo runs’. The logic of this argument is impeccable but for one rather fundamental defect. No such provision exists.

This regrettable conclusion is reached, not by recourse to case law or obtuse statutory interpretation, but by a simple Google search of the relevant legislation, namely ‘section 20 Northern Ireland Act 1998’.

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As this safeguard has been widely cited in aid of the new provision, it is safe to assume that the entire bill is predicated upon this mistaken assumption. This is not a solid foundation for constitutional legislation.

Problematically for the movers of the bill is that fact that they have to convince assembly members that the legislation, with the amendment, means exactly the same as the legislation did without it. The only intervening event was a judgment by lord chief justice where he interpreted the statute consistent with the approach the DUP have always advocated.

All is not yet lost.

Doug Beattie MLA has put down amendments to remove the dangerous aspects of the bill, while leaving in place the sensible provisions. These should be supported leaving the contentious aspect the bill to another day.

We shall see if this happens.

• Richard Bullick, a former barrister, was special advisor to Peter Robinson and Arlene Foster as first minister

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