Sam McBride: Hints of reformist DUP wing could discomfit Arlene Foster but help her party

The setting was the Assembly’s Finance Committee, which had asked me to give evidence as part of its scrutiny of Jim Allister’s bill which would impose criminal sanctions – including the possibility of jail time - for some of the practices revealed by the RHI scandal.

Referring to the need for a “culture change” at Stormont in light of RHI, North Antrim MLA Paul Frew said bluntly: “I don’t see much evidence of culture change”.

He went on to explicitly refer to his concern over the behaviour of departments run by Alliance, Sinn Féin and the DUP. The former electrician and Royal Irish reservist then said: “There is still this accountability issue, this public interest and confidence issue that needs to be addressed. So do we need reform? Absolutely, yes – it’s the method and the travel of that reform that is the question.”

For years, such comments have been common in off the record discussions with many DUP members at all levels of the party. But the DUP’s discipline, crucial to its electoral success, means that such strategic criticism is rarely articulated in public by DUP politicians.

That was known across most of the party, just as Sinn Féin’s calculated decision to circumvent the law – effectively seeing itself as being above the law – on spads saw it appoint a ‘super spad’ to not only oversee its team of special advisers, but also manage its ministers.

The RHI Inquiry which both parties opposed until public opinion forced each into U-turns exposed those situations and necessitated at least the appearance of such behaviour being recanted. Thus, when devolution returned in January, ministers and civil servants trumpeted new codes and mechanisms which they said would deal with such problems. But do they?

I have read the documents, discussed them with some of their authors and listened to those now arguing that they are adequate – but see no evidence that they contain the sort of tough sanctions which would make a repeat of the RHI scandal behaviour either impossible or highly risky for an individual.

Sue Gray, now permanent secretary in the Department of Finance, spent many years as one of the most senior figures in the Cabinet Office, giving her some authority when she says that Stormont’s codes are now the toughest in the UK.

But Stormont had codes before – they were simply ignored. And, as is now apparent to many in London, in repeated Westminster scandals spads have been able to survive if their minister backs them – and that is in a normal political system with an opposition, a powerful legislature and scrutiny by national media.

In our system, with only 6% of MLAs not members of governing parties, we have a legislature which is almost indistinguishable from the Executive, there is no official opposition to scrutinise the Executive, and the media is rapidly shrinking – something likely to continue as the pandemic leads to further cuts in already shrunken newsrooms.

The new codes for ministers and spads contain much common sense and little which in itself is objectionable – but it is what they leave out that is crucial.

The simplest way in which to test the new system is to apply it to some of the behaviour exposed by the RHI Inquiry. For instance, Andrew Crawford, Arlene Foster’s spad for most of her ministerial career, was passing commercially-sensitive government documents to his relatives, alerting them that cash for ash was to end.

More than that, he was passing confidential government documents to Gareth Robinson, the lobbyist son of the then First Minister, for his corporate clients – and was unabashed in telling the inquiry that he nepotistically treated Robinson Jr more favourably than other lobbyists because of who his father was.

What would happen to a spad now acting as Crawford did? In short, nothing unless their minister withdrew protection from them.

Those who endorse the new codes as adequate – and Sinn Féin in particular – suggest it is a great breakthrough to have clarified that the minister is responsible for their spad, including for their discipline. In fact, it is nothing of the sort.

Ministers have always been responsible for their adviser’s discipline and recent history shows that far from being a solution, that in itself is a problem. Ministers, whether because they have themselves authorised the wrongdoing, or because they fear what a spurned spad may reveal, or simply out of party loyalty, have far too great a vested interest to be independent arbiters of their closest aide’s conduct.

When the then DUP minister Nelson McCausland’s spad Stephen Brimstone was implicated in the Red Sky scandal, officials investigated and recommended that he face disciplinary action. But McCausland used his power to ensure that did not happen, allowing Brimstone to remain untouched and then be promoted to the First Minister’s office.

The hope of those behind the new codes seems to be that a minister will be embarrassed into action because there will be an independent report into the spad which will make a recommendation on disciplinary action and that will be published. Would a report manage to achieve what vast media coverage of an issue and demonstrable public anger had not? It seems highly unlikely.

Mr Allister’s Functioning of Government (Miscellaneous Provisions) Bill is far tougher and would put in place two new criminal offences.

The first would outlaw any minister, civil servant or spad electronically communicating government business using personal email or other accounts – something which hides activity by keeping it off the grid and is critical to the continuation of the secrecy which some powerful DUP and SF figures desire.

The second new criminal offence would be for a minister or spad to send confidential government information to a third party. That could create an unintended impediment to whistleblowers, an issue which the committee seemed to agree needed an amendment to make explicit its intent to prevent behaviour such as that of Crawford.

When the bill came before the Assembly at second stage in March, Sinn Féin immediately made clear its opposition – with John O’Dowd oddly even complaining about the fact that it was being tabled by a backbencher rather than an Executive minister, despite Sinn Féin TDs in the Dail having tabled legislation.

At the time, Mr Frew – his party’s spokesman on the issue – said that the DUP endorsed the bill’s core principles. But earlier this month the head of the civil service said that Mrs Foster had since sold him that she opposed it.

That is why Mr Frew’s forthright comments this week are intriguing. If even after the party leader has apparently made clear her changed stance, there is a split within the DUP on reforming Stormont, it has the potential to create something which, while hardly relished by Mrs Foster, could be to the benefit of her party.

Until now, unionists who dislike the constant scandal which has infused Stormont in general and the DUP in particular have little option but to vote for another party – if they vote at all. If a reformist wing – not pushing policy changes, but basic standards of good government – opens up within the DUP, it has the potential to undermine Mrs Foster in the short term but broaden the party’s appeal the long term – especially if the reformers succeed.

By contrast, there does not appear to be a single voice in Sinn Féin even questioning the toothlessness of Stormont’s new regime for spads – despite that party’s chest-beating rhetoric on putting manners on the DUP. While comforting for the leadership in the short term, that might ultimately not be in its strategic interests.

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Alistair Bushe

Editor