Sam McBride: With the incurious scrutinising the inept, Stormont is sinking lower into disrepute

Something curious is happening at Stormont; something so self-injurious as to defy an obviously rational explanation other than incompetence so gross that it ought to alarm anyone who cares about how we are governed.
In a throwback to a moment from years ago, MLAs this week spent just 10 minutes on a profoundly significant piece of legislationIn a throwback to a moment from years ago, MLAs this week spent just 10 minutes on a profoundly significant piece of legislation
In a throwback to a moment from years ago, MLAs this week spent just 10 minutes on a profoundly significant piece of legislation

When devolution returned in January, the parties insisted that they had learned from their past mistakes and this time Stormont would be open, transparent and responsive to genuine concerns.

Seven months into what many in Parliament Buildings believe may be their last chance at devolved government, one technical piece of legislation being rammed through the legislature at high speed is brutally exposing profound inadequacies.

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Though just two pages in length, the Executive Committee (Functions) Bill is being handled in a manner which is not just exposing the nakedness of the Executive, but of the legislature which is meant to scrutinise that Executive.

We are now seeing the value of an official opposition, financed and incentivised out of self-interest to probe what the government is doing.

In the absence of an opposition, and with less than 8% of MLAs from parties not in government, the Assembly has rows of overwhelmingly obedient servants of their parties who vote as they are directed by their leaders, with scant evidence of questioning legislation what many of them must by now realise is far more significant than is claimed.

The bill involves complex legal and constitutional issues. But, contrary to Arlene Foster and Michelle O’Neill’s claims that it merely “clarifies” the law, several respected lawyers have said what even to a non-lawyer seems clear – this would make major alterations to ministerial power.

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In simple terms, the bill makes two key changes. Firstly, it gives the Infrastructure Minister complete autonomy to take the biggest planning decisions; regardless of the Executive’s views on such a decision, it could do nothing to intervene.

Senior solicitor Maria O’Loan from Belfast law firm Tughans has highlighted that this fundamentally alters the Belfast Agreement, putting planning decisions –  “no matter how controversial or significant, and regardless of how many other departments that decision would affect” – entirely outside its carefully constructed cross-community architecture.

In a society where almost any decision can be perceived to have a green or orange tinge, this shift – especially under any future planning minister more tribally partisan than the incumbent, Nichola Mallon – could precipitate difficulty. Yet, with MLAs just days away from completing legislative scrutiny of the bill, that aspect of the change has not even been mentioned in Stormont.

Secondly, the bill would weaken the changes secured by the DUP at St Andrews in 2006 by undermining that agreement’s curtailment of individual ministers’ powers.

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It is that change – and the fact that Mrs Foster appears ignorant that it is even happening – which has so alarmed Richard Bullick, the man who was the key backroom strategist for the DUP for most of the time from 2000 to 2017.

A trained lawyer who was central to how St Andrews was crafted, Mr Bullick was the DUP’s key internal legal adviser on carefully-selected judicial reviews in the years after St Andrews which the DUP used to clarify in case law that the Executive had to agree significant, controversial or cross-cutting decisions.

Given those years of work to construct a framework aimed at preventing any repeat of Martin McGuinness’s unilateral 2002 decision to abolish the Eleven Plus, he has expressed bewildered dismay at how that is being casually discarded.

Indeed, the First Minister who is proposing that the DUP’s governmental philosophy of two decades be altered is the same Arlene Foster whose own lawyer made arguments in court on her behalf for wide collective responsibility – but is now ramming through legislation premised on the basis that such an idea is flawed.

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Emanating from a First Minister who is a lawyer and who just a few years ago boasted of her attention to detail, the ignorance and incoherence of her position is staggering.

Yet, even after Mr Bullick’s searing critique of the implications of what she is doing, Mrs Foster did not feel compelled to explain herself or even appear in the Assembly chamber for the ten minutes which the Assembly devoted to the bill on Tuesday before nodding it through with only the UUP and People Before Profit dissenting.

Since this seminal bill was first published 22 days ago, the entirety of the time spent by the Assembly and its committees in examining it is a pitiful one hour and 56 minutes - and that includes the time spent voting on the bill.

It says much about the Assembly that there has been more scrutiny of this law outside the chamber – by Mr Bullick, Ms O’Loan, and other lawyers – than there has been within the Assembly where not one of the issues they identified were raised, even after they had been covered extensively by this newspaper.

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What is happening here is reminiscent of another stark example of MLAs’ inability to perform their most basic roles as legislators. On December 8, 2014 a largely empty Assembly chamber nodded through legislation to expand the RHI scheme at a point when cash for ash was about to run over budget.

As with this bill, many MLAs saw the Renewable Heat Incentive Scheme Regulations (Northern Ireland) 2014 as a dry, technical and uncontroversial bill – with none of them noticing that it was the moment where Mrs Foster’s department had said it would introduce cost controls, which now had vanished.

But in at least one sense, what is happening now is even less explicable than what happened then. Not only has the RHI scandal exposed the weaknesses of ministers and civil servants to an extent that MLAs might be expected to interrogate what is put before them, but in 2014 there had not been clear public warnings – as have come from Mr Bullick and Ms O’Loan – about the implications of what was before them.

Yet despite the warnings here, and the lack of any counter-argument from Mrs Foster or Ms O’Neill, there is scant evidence of intellectual curiosity on the benches of the DUP, Sinn Féin, SDLP or Alliance as to whether what they have been told by Stormont Castle is any more factual than the contents of the Beano.

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Out of 90 MLAs, only one – the UUP’s Doug Beattie – has tabled an amendment which would not deal with the planning issue, but which would stop every other minister being given greater powers.

It is emblematic of the significance of this issue that Mr Bullick, the beating heart of the DUP for longer than Mrs Foster has been in the party, has now publicly endorsed Mr Beattie’s amendment as a means of avoiding the passage of “dangerous” legislation.

And yet, there is an argument for this bill. In fact, there is an argument for going much further and giving individual ministers largely unchecked powers to run departments and then be held accountable by voters.

But it’s not an argument with which Mrs Foster has even engaged and it contradicts central DUP policy designed to prevent Sinn Féin ministers being allowed to reshape Northern Ireland in radical ways without a brake in the Executive.

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But most astonishing is this: Mrs Foster has built this legislation on a fallacy, taking comfort from what she claimed to MLAs was a law which allows three Executive ministers to call any decision into the Executive where the DUP has a veto.

Devastatingly, Mr Bullick – the man who perhaps knows this area of law better than anyone in Northern Ireland – has explained that no such power exists. In response, the First Minister never flinched, but carried on regardless.

And not only did not a single MLA at any point highlight that the First Minister’s claim was inaccurate, but the SDLP chairman of the committee tasked with scrutinising Mrs Foster’s department, Colin McGrath, uncritically repeated her claim as fact.

With an Assembly this self-evidently incompetent scrutinising an Executive proposing legislation it does not understand and which is based on a basic error, what really has changed at Stormont?

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