Sam McBride: Arlene Foster, the Attorney General, and why she backed a controversial bill which provoked DUP rebellion

For weeks, Arlene Foster’s support for a bill which she presented to the Assembly as dull and technical, then rushed through under emergency provisions has baffled many of her colleagues, rivals and observers.
Arlene Foster pictured at her desk in StormontArlene Foster pictured at her desk in Stormont
Arlene Foster pictured at her desk in Stormont

Mrs Foster’s actions have made precarious her position as DUP leader, prompting unprecedented criticism from her former key adviser and the largest parliamentary rebellion in the party’s 49-year history. Why would the First Minister risk so much over what she presented as an innocuous piece of legislation?

For weeks, the DUP has given reasons which did not stack up. But now, a month after the Executive Committee (Functions) Bill was first published and as it waits in Buckingham Palace for Royal Assent, the News Letter has been given important new information about the reasoning behind what Mrs Foster did.

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Significantly, the justification which the First Minister gave to the Assembly for the bill is now said to at best be only part of the rationale for what happened and there was an unspoken motivation based on the issue at the heart of debate about her actions – the possibility of ministerial solo runs.

The bill began with a May 26 request from Infrastructure Minister Nichola Mallon that the Executive agree to her tabling legislation to get the sole power to decide planning applications. Citing legal advice, the SDLP minister argued that this was necessary to allow her to take major planning decisions due to the implications of a 2018 Court of Appeal judgment – the Buick case which overturned planning permission for an incinerator.

Stormont’s lawyers viewed the judgment as a departure from past case law because they felt that it significantly lowered the bar for decisions which had to be brought to the full Executive for agreement if they were ‘cross-cutting’ – impacting on another minister’s work.

However, Mrs Foster’s former special adviser Richard Bullick – a former barrister who was intimately involved in several DUP court battles in this area – subsequently said that the judgment was in line with case law which had accepted DUP arguments that there should be an “expansionist” view of what had to come to the Executive, a deliberate attempt to curb Sinn Féin ministers’ unilateral power.

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After Mrs Mallon’s attempt to bring forward a simple bill on planning, Mrs Foster and Michelle O’Neill intervened and took control of the issue. The DUP pushed to widen the bill to also put in place a new test for ‘cross-cutting’ – now only decisions which affect “the exercise of the statutory responsibilities” of another minister “more than incidentally”.

Mr Bullick was perturbed by what he saw as the weakening of a key safeguard crafted by the DUP in statute and then nurtured through case law. The former aide to Peter Robinson and Mrs Foster, whose legal and political judgement is widely respected at Stormont, was further dismayed when Mrs Foster wrongly claimed that parties would still have “the right” to pull major decisions into the Executive if three ministers supported that.

Mrs Foster has never explained or retracted that claim. However, now a senior DUP source has told this newspaper that Mrs Foster was referring to a provision in the 2014 Stormont House Agreement.

Critically, that deal is a political agreement between four of the Executive parties and the Government, rather than law, and so it is not a “right” as the DUP leader described it.

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Indeed, multiple aspects of the Stormont House Agreement – from bodies to investigate the Troubles to devolving corporation tax – have never happened, and one Executive party, the UUP, never signed up to it in the first place.

Nevertheless, Mrs Foster is said to believe that the agreement would carry some legal weight if it came before a court.

But the more significant new material relates to the genesis of the bill. The News Letter has been told that the then Attorney General John Larkin, First Legislative Counsel Brenda King (who has taken over from Mr Larkin as interim Attorney General), and the hugely experienced senior crown counsel Tony McGleenan QC all agreed that the bill was necessary.

Although this newspaper has not seen either the full legal advice or the instructions on which it was based, the lawyers are said to have been clear that the Buick judgment represented a major change, and did not just reaffirm case law.

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The strongest legal opinion is said to have come from Mr Larkin, who advised in writing that at least one aspect of the Lord Chief Justice’s Buick verdict was wrong and, although it had not been tested in the Supreme Court because it was not appealed, was therefore likely to be overturned at some future point when another case was taken against a different decision.

Mr Larkin is also understood to have raised concerns about another aspect of the ‘significant or controversial’ test – along with the cross-cutting test, one of two safeguards which give a de facto veto to both unionism and nationalism.

That test for whether a matter can be forced into the Executive is referred to in the Northern Ireland Act 1998 as relating to “significant or controversial matters that are clearly outside the scope of the agreed programme referred to in paragraph 20 of Strand One of that [Belfast] Agreement”.

That has widely been taken to simply refer to the programme for government. However, Mr Larkin questioned this, highlighting that paragraph 20 of the Agreement said that the Executive “will seek to agree each year, and review as necessary, a programme incorporating an agreed budget linked to policies and programmes, subject to approval by the Assembly, after scrutiny in Assembly Committees, on a cross-community basis” and that the programme for government might not necessarily satisfy that test.

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The DUP is said to have been troubled because Mr Larkin’s advice had gone to every Executive minister – thus alerting them to an issue which they could exploit.

At the top of the DUP, there was a belief that what was described by one senior DUP source as the “clear and unambiguous legal advice” pointed to a political trilemma.

First, if the lawyers were right and Buick was overturned – and if the lawyers were also right that case law was not settled – then the ‘significant or controversial’ test for stopping ministerial solo runs could be severely weakened.

Secondly, if Mr Larkin was right that there was any doubt over the programme for government question, then there could be a separate threat to the test being engaged at all. For these reasons, an uncontested part of the bill clarified this issue.

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And thirdly, if the lawyers were wrong and Buick stood as case law, then they believed – because of the sweeping definition of ‘cross-cutting’ set out by the Court of Appeal – that government would be almost unworkable, with minor decisions having to come to the Executive to be legally secure.

Mr Bullick says this problem was anticipated and dealt with by the ministerial code, which allows for retrospective Executive approval of uncontroversial decisions if they are challenged. He says that the DUP prized the power to call in almost any decision of real significance, but used that power sparingly.

Mr Bullick’s strongest argument in favour of his position is to point to where Mrs Foster’s own barrister argued in court for her that there should be a sweeping definition of what could be forced into the Executive – a proposition from which she now recoils.

But if this bill was founded on defensible arguments, why ram it through with minimal scrutiny? The senior DUP source argued that the urgency had been due to both the potential danger of ministerial solo runs and the need for urgent planning decisions to be taken.

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Other questions remain. This explanation comes retrospectively. And internally a leaked party briefing note had none of the explicit detail set out here.

Externally, the party’s communication was abysmal, failing to even engage with many of Mr Bullick’s criticisms until the bill was law.

But most alarming for Mrs Foster is that when asked to trust her judgement on this complex issue of profound importance, many of her senior DUP colleagues did not do so.

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