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

They presented the proposed legislation – the blandly-titled Executive Committee (Functions) Bill – as a somewhat boring and technical tidying-up exercise and until recent days it had attracted no controversy.

But there is now reason to believe that what the first and deputy first ministers want MLAs to nod through at breakneck speed could be the most significant change to how the Executive operates since the St Andrews Agreement 14 years ago.

However, what really lies behind the move by the DUP and Sinn Féin leaderships for now remains puzzling.

What is going on at the top of the DUP is particularly intriguing because one of the architects of St Andrews – Mrs Foster’s former senior special adviser Richard Bullick – has now said that this bill represents “the most significant rolling back of the St Andrews Agreement and will significantly undermine the ability of the Executive to prevent ministers acting without collective agreement”.

After months in which the Executive has been almost wholly focussed on dealing with the pandemic, there has been little legislation brought to the legislature.

But on July 1, Mrs Foster and Ms O’Neill appeared before the Assembly committee which scrutinises their department to reveal aspects of the bill and to ask that it be fast-tracked by accelerated passage, thus limiting scrutiny.

However, the previous day had seen Ms O’Neill and myriad Sinn Féin colleagues openly breach her own public health advice, meaning that discussion of the legislation essentially became an appetiser to the main course of Ms O’Neill having to publicly account for her actions.

With Mrs Foster describing it as “a very short bill” which was “literally a one-clause bill when you look at the substantive nature of the piece of legislation”, neither the First Minister’s words nor her body language suggested this was highly significant.

She said it was necessary because of the Court of Appeal ruling in 2018 – the Buick case – in which judges ruled against civil servants giving planning permission for a huge incinerator in the absence of a minister.

One of the court’s reasons for ruling as it did was that it said the issue involved more than one minister’s responsibilities – a so-called ‘cross-cutting issue’ which has to be referred to the Executive as a whole.

Mrs Foster told MLAs that the bill would clarify that issue because otherwise the Executive could find itself having to take planning decisions, despite not being best placed to do so.

But for some reason the bill goes far further and redefines the meaning of cross-cutting for all ministerial decisions.

The First Minister indicated that she understood the bill’s sweeping nature, saying that “we wanted to deal with it right across government, and not just in terms of the Department for Infrastructure”.

The First Minister’s argument was somewhat curious because the DUP leader was taking issue with the fact that the court had placed an expansive interpretation on the term ‘cross-cutting’. That means that there are a large number of areas in which a minister’s power to act alone is curtailed because another minister can argue that they would be impacted by their decision.

What she did not say was that the court’s interpretation was essentially the DUP’s long-standing interpretation of the term – the party had for years argued for a wide definition, something which gave it more scope to have a role in other ministers’ decisions.

In fact Mrs Foster had personally gone to court – on a question of planning policy – when she was Enterprise Minister in 2014 to challenge a decision by fellow minister Mark H Durkan. Mrs Foster’s grounds of challenge were centred on precisely this area – the argument that he had exceeded his powers because it was a cross-cutting issue.

For her part, Ms O’Neill said it was “really, really important that we get this bill enacted before the end of July to allow the planning minister to be able to take a number of planning decisions”.

But Ms O’Neill, whose opening statement to the committee lasted less than a minute, gave even less sense that she comprehended the significance of what she was jointly proposing.

After less than 11 minutes of evidence and consideration, the committee acquiesced easily in the ministers’ request for accelerated passage of the bill.

The committee’s SDLP chairman, Colin McGrath, said: “I think it’s fairly straightforward; it’s not an overly complex bill.”

In fact, the length of the bill is deceptive; it deals with an exceptionally complicated juncture between messy Stormont politics, statute and case law, balancing the ability of ministers to take decisions for which they are accountable against the Executive’s desire to maintain some sort of coherence rather than an administration of ministers constantly acting to thwart each other.

Five days later, the issue came to the whole Assembly. Only four MLAs opposed reducing scrutiny of the bill. But just one MLA – People Before Profit’s Gerry Carroll – voted against the bill itself at second reading.

Sinn Fein’s Pat Sheehan supported it as “a sensible and effective approach”, Alliance’s Andrew Muir said that the bill was “necessary” and even DUP MLAs who had enthusiastically endorsed St Andrews now queued up to say that a bill which a key DUP architect of that agreement says unravels that deal is crucial.

DUP veteran Mervyn Storey said that “obviously, this is a necessary requirement”. Party colleague William Humphrey said it was “vital that we have legislation that allows Northern Ireland to go forward”. Fellow DUP MLA Christopher Stalford said “anything that makes government quicker and more reactive to the needs that confront it is only to be welcomed”.

Even the Executive’s arch-critic, Jim Allister, accepted that the bill was “necessary”.

But last week Mr Bullick, Mrs Foster’s former adviser and a lawyer by training, began tweeting his unhappiness at what was unfolding.

He said that one provision in the bill “puts [ministers] in a much stronger position in the event of a legal challenge” and was “based on a misreading of the case law”.

Central to the DUP’s thinking at St Andrews was an attempt to stop Sinn Fein ministers from going on solo runs, such as Martin McGuinness’s unilateral abolishment of the Eleven Plus in 2002.

Critics of St Andrews argued that it led to sluggish government where decisions languished untaken for months or years and Stormont’s two dominant parties carved up power in backroom deals.

But the DUP was willing to accept that because it saw Sinn Féin as a party with far more radical goals than its own; essentially the DUP accepted that the price of thwarting a swashbuckling republican agenda was to have lethargic centralised decision-making because it could stall or halt what it didn’t like.

This bill does not wholly undo the St Andrews changes, but the very fact that Mr Bullick – the strategic brain of the DUP for years who has not spoken out publicly against the party since leaving his role three years ago – is forthrightly warning the DUP in public about this issue shows that it has caused alarm among some of those most intimately involved in constructing St Andrews.

It is no surprise that Sinn Féin is endorsing something which weakens provisions designed by the DUP to curb its power.

But is the DUP consciously making a major policy shift, or is a momentous decision being taken in ignorance?

It is possible that Mrs Foster has calculated that the inertia of the post-St Andrews decade of devolution was a mistake and that it is now better to give ministers more freedom to take speedy decisions – even if that means Sinn Féin decisions which unionists will dislike.

But Mrs Foster has nowhere made that argument or even indicated that she grasps the import of what she is doing.

It is equally possible that Mrs Foster, the minister who didn’t even bother to read the legislation which she asked MLAs to vote for in 2012 to set up the RHI scheme, is not across the detail of what is a complex area.

If that is the case here, that flaw could prove enormously damaging to her own interests, even if – as with RHI – this legislation sails through with scant opposition when MLAs debate it on Tuesday.

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