Sam McBride: Mystery and suspicion surround one question: Why did Arlene Foster do it?

So self-destructive were Arlene Foster’s actions this week that they have been indecipherable using conventional political analysis.

Saturday, 1st August 2020, 7:17 am
Updated Saturday, 1st August 2020, 9:09 am

The DUP leader presented the Executive Committee (Functions) Bill as dry, technical, and so apparently unimportant that despite the legislation emanating from her department she never even appeared in the Assembly chamber on the four occasions in which it was discussed there the Assembly.

For a DUP leader to so weaken her authority over a bill which she presented in this way, and which delivers scant political benefit to her ruthlessly transactional party, is mysterious to the point of being suspicious.

At first, the most likely hypothesis was that this appeared to be gross inattention to detail of the sort not alien to Mrs Foster. This is the First Minister who did not read the RHI legislation she proposed, and who just six months ago claimed that a border poll could only be held if the Secretary of State believed it could be won by nationalism – a claim not only factually wrong, but contrary to her own position in recent years.

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However, developments in recent days point to something more calculated, if still partially inscrutable.

Mrs Foster and Michelle O’Neill first discussed this bill publicly when they appeared before their department’s Assembly scrutiny committee on July 1. Two days later the draft bill was published.

But it is now clear from various sources that this was not the DUP simply accepting civil service advice without sufficient questioning – as former DUP spad Tim Cairns reasonably assumed had happened when questions were asked about the bill over the last three weeks.

In fact, Mrs Foster’s key special adviser, Emma Little-Pengelly, had been working in detail on the bill for weeks, multiple sources have confirmed. More than that, the most controversial aspect of this bill – conferring greater power on ministers to take decisions without asking the Executive – does not appear to have emerged from Sinn Féin or the SDLP, parties for whom such a change would sit wholly in line with their longstanding policy.

Nor is there evidence that it came from civil servants who were either ignorant of the fact that it was contrary to DUP policy or with their own agenda.

Unfathomably, the DUP did not just acquiesce in a bill which undermines its historic policy, policy so important that it fought court cases to establish it in case law as well as statute; it was driving the process.

Two weeks ago, Justice Minister Naomi Long said on Twitter that “it was the DUP who argued against changes for planning being addressed in isolation”.

A senior Executive source has confirmed what the Alliance leader had said is accurate and it was the DUP which argued for the legislation going far beyond planning and covering every minister.

Indeed, Executive papers show that Infrastructure Minister Nichola Mallon first brought a paper to the Executive on May 26, making the case for getting the sole power to decide planning applications.

For some reason, the DUP then intervened and rather than the legislation coming from the SDLP minister, it was decided that Stormont Castle would take charge of it.

Over the month between late May and the end of June, a very different bill was put together – with Mrs Little-Pengelly taking a close interest as to how it was crafted.

Given the seemingly inexplicable nature of the DUP’s actions – including Mrs Foster and other senior members defending the bill by deploying a claim about a ‘three-minister lock’ which was demonstrably wrong – inside and outside the DUP people have searched for some hidden meaning in what happened.

Has Arlene Foster consciously changed DUP policy to get things done at the expense of republicans also getting things done?

Is the DUP using this to try to somehow try to undo the liberalisation of the abortion law?

Could the party be attempting to undermine or prevent aspects of the Brexit deal which it dislikes?

All of those questions presuppose that there is likely to be some coherent explanation behind a political leader acting in ways which are detrimental to their stated policies.

However, none of those attempts to impose some hidden order on this seeming chaos stand up after even basic scrutiny. Anticlimactically, the evidence points to a more prosaic explanation involving incompetence, arrogance, and what many see as Mrs Foster’s central character flaw – a predisposition when she has erred to shun humility in favour of haughty insistence that she is right.

A month ago Mrs Foster and Ms O’Neill appeared before a Stormont committee for 11 minutes of scrutiny of the bill. Their one argument for urgently ramming the bill through the Assembly under emergency provisions was that there was a backlog of big planning decisions which could not be taken in a legally safe way until the passage of the bill.

But on Tuesday, just minutes before MLAs voted on the bill for the final time, junior minister Declan Kearney blew apart that justification. He said that even if the bill was passed by MLAs, planning decisions could not be taken by Ms Mallon until the autumn or winter because there will also have to be a change to the ministerial code.

Mr Kearney did not misspeak because when Ms Mallon’s department rejected his interpretation and insisted that it could take planning decisions immediately, Stormont Castle stood over what the junior minister had said.

With its own sole justification for cutting scrutiny of the bill having disintegrated based on the evidence of Mrs Foster’s own department, she faced suspicion within the DUP as to the real reason that she had insisted on that course.

But then on Thursday the First Minister spoke to the media for the first time (despite the News Letter having covered this issue in more detail than other outlet – or perhaps for that reason – we were not invited).

Planning was no longer even mentioned as a reason for speed. Instead, Mrs Foster set out an even more implausible explanation. She said the urgency was because “there had been a gap identified in relation to ‘significant or controversial’ issues that if we didn’t have a programme for government then those issues could be taken [sic] by ministers in their own department and there was no necessity to bring them to the Executive. And I was concerned about that, and this bill stops that from happening...[that] could have caused grave difficulties.”

It was a breathtakingly nonsensical claim. Paragraph 53 of the Lord Chief Justice’s judgment in Buick – the case Mrs Foster cited for the bill – made clear that where there is no programme for government then significant or controversial decisions must come to the Executive.

On top of that, Mrs Foster and her junior minister Gordon Lyons had argued that the status quo made the bill necessary because almost any decision could be said to meet the separate ‘cross-cutting’ test and get called into the Executive.

If it was so wide that almost any decision could be called in – so wide that Mrs Foster wanted it tightened – what possible decision could have resulted in a solo run the First Minister now retrospectively claims the bill was designed to stop?

The monumental errors she has made in explaining herself reveal Mrs Foster to have a profoundly deficient comprehension of this complex juncture of law and politics.

But now the deed is done. Mrs Foster may or may not be present when the full implications of this hasty change are realised.

The DUP was once known for its professionalism and hard-headed unsentimentality.

But, having grown lazy due to the lack of challenge from the UUP, the party is now prepared to accept a leader whose arguments have become so intellectually incoherent and error-strewn that they don’t even convince many of her senior colleagues while others accept being whipped to vote against DUP policy.

With Northern Ireland’s defining centenary year just five months away, the DUP has a decision to make about who will lead unionism.

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