Arlene Foster seems to have made a massive error which would give Sinn Fein ministers more power

The implications of the First Minister’s apparent error would be to hand more power to other ministers – including Sinn Féin ministers, whose power the DUP had used the St Andrews deal to curb.

Despite criticism from her former senior adviser Richard Bullick, yesterday Mrs Foster made clear that she is not planning to back down on the legislation which MLAs will today debate and vote upon as part of reduced scrutiny requested by the first and deputy first ministers in order to speed it through the legislature to become law within a month.

Yet last night it emerged from previously unseen court papers that Mrs Foster’s own barrister had argued on her behalf against the position she is now advocating.

Three weeks ago the First Minister appeared before the Assembly committee which scrutinises her department and it was there that she set out for the first time the provisions of the Executive Committee (Functions) Bill – something which she presented as a technical tidying-up exercise in response to a court judgment.

The bill would give more power to individual ministers to make decisions, rather than forcing them to bring decisions to the whole Executive.

However, Mrs Foster appeared relaxed about that because she said that there would still be a provision for any three ministers to ask that any significant or controversial decision be brought to the Executive.

If such a provision existed, it would give the DUP, with four ministers, a unilateral power to call in such decisions.

Yet the DUP has been unable to point to any legislation which gives it the power Mrs Foster claims – and Mr Bullick has said that no such power exists.

At the committee hearing, the First Minister was asked if there would still be circumstances in which a planning decision would be called in to the Executive.

Mrs Foster replied that “we still have the right, under this legislation, to pull decisions in if they are significant or controversial, if three or more ministers decide that they need to be brought in...we still have the right to pull issues in to the Executive if we need to do so.”

Having heard that evidence, the committee’s SDLP chairman, Colin McGrath, then said the following week in the Assembly that it was “important to point out that any planning or other decision can still be brought to the Executive for consideration if three or more ministers think that it is significant or controversial”.

In the same debate, senior DUP MLA Christopher Stalford picked up on that, saying: “The chair of the committee touched on an important point that was in danger of being lost in the earlier debate: the ‘three or more ministers’ safeguard remains in place.

“If ministers are upset or concerned about the implications of a decision that is cross-cutting, three of them are required to ensure that the Executive as a whole have a conversation about that decision. It is important that that safeguard remains in place.”

However, Mr Bullick, the man who was the DUP’s key backroom strategist for more than 15 years and a lawyer by training, said those claims involved a fundamental misunderstanding of the legal position from which had been derived “misplaced comfort”.

Referring to Mr McGrath’s comments – which effectively were replicated by Mrs Foster and Mr Stalford – Mr Bullick wrote on Twitter: “I’m afraid to say that’s complete nonsense.

“No such provision exists...hence my concern about the ill-informed nature of the assumptions underlying the bill.”

The News Letter asked the DUP on Friday to point to where in legislation three ministers have the power to call any decision into the Executive, or whether the party had got that wrong. There was no response.

When asked again about the matter yesterday, again the DUP did not respond to the question but in a statement issued late last night it defended Mrs Foster’s move nonetheless.

The party said: “The amendment clarifies the requirements on ministers to bring cross-cutting matters to the Executive to simply reflect in legislation the practice and interpretation of ‘cross-cutting’ by the Executive since the St Andrews Agreement.

“As this simply reflects practice, it is anticipated that there will no reduction or change on the volume or type of matters that are required to come to the Executive under this requirement.

“The amendment’s purpose is to give legislative clarity and does not change Executive’s collective responsibility or ministerial obligations to bring cross-cutting matters to the Executive.”

The bill which Mrs Foster and Ms O’Neill have jointly brought to the Assembly would weaken the DUP’s historic position that it wanted the power to have most significant or controversial decisions by ministers brought to the Executive – something which it believed gave it power to prevent radical moves by Sinn Fein ministers, such as Martin McGuinness’s 2002 decision to abolish the Eleven Plus exam.

Under the new law which MLAs will today debate, a minister is not required to bring a matter to the Executive “unless that matter affects the exercise of the statutory responsibilities of one or more other ministers more than incidentally”.

Mrs Foster and Ms O’Neill have argued that the bill brings “clarity” and would “not fundamentally alter” how the Executive works – something which they used to justify the absence of any public consultation and limiting scrutiny of the bill to rush it through the Assembly.

However, Mr Bullick said that it was “the most far reaching change to the safeguards in NI’s decision making processes in over a decade, narrowing the role of the Executive – and it’s all based on a misreading of the case law”.

The former spad said that the courts had consistently adopted an expansive interpretation of what impacted on more than one minister – and that they had been accepting the DUP’s interpretation in doing so, meaning that he could not understand why the party would be arguing for that now being reversed.

When asked about Mr Bullick’s concern at what she was doing, yesterday Mrs Foster denied that her legislation would make it easier for ministers to embark on solo runs.

She told the Press Association: “Well, my very clear view, not just my view but the legal advice that we have been given on this, is this puts us in a post-St Andrews position, but a pre-Buick position.

“You will remember Buick was the case that was taken when there was no executive in place and there was a judgment given in relation to cross-cutting issues [relating to an incinerator] and so we needed to deal with that issue.

“And I’m very comfortable that that’s where we are.”

Asked if the Bill is paving the way for more ministerial solo runs, Mrs Foster replied: “No, it most certainly is not.”

Sam McBride analysis: Arlene Foster seems to be tearing up historic DUP policy, perhaps without even realising

——— ———

A message from the Editor:

Thank you for reading this story on our website. While I have your attention, I also have an important request to make of you.

With the coronavirus lockdown having a major impact on many of our advertisers — and consequently the revenue we receive — we are more reliant than ever on you taking out a digital subscription.

Subscribe to newsletter.co.uk and enjoy unlimited access to the best Northern Ireland and UK news and information online and on our app. With a digital subscription, you can read more than 5 articles, see fewer ads, enjoy faster load times, and get access to exclusive newsletters and content. Visit https://www.newsletter.co.uk/subscriptions now to sign up.

Our journalism costs money and we rely on advertising, print and digital revenues to help to support them. By supporting us, we are able to support you in providing trusted, fact-checked content for this website.

Alistair Bushe

Editor