Northern Ireland Justice Minister Sugden cannot keep silent at this critical moment
Justice Minister must use her unique position to speak up for the thousands who are appalled by RHI scandal, says Alex Kane
This is what Martin McGuinness said on New Year's Day: "In order to address these challenges the DUP and its leader Arlene Foster need to accept there is an overwhelming desire in the community to deal with this issue and for Arlene Foster to step aside as First Minister pending a preliminary report.
"That would allow for an independent investigation to take place, which is transparent, robust, time-framed and led by an independent judicial figure from outside the jurisdiction, appointed by the Attorney General.
"A rigorous process to recoup as much of the money as possible must also be put in place."
It is very similar to what Justice Minister Claire Sugden said on December 19 during the no confidence motion about Foster: "Nonetheless, the controversy surrounding the RHI scheme is devastating. The commentary is shocking. Allegations of corruption and cronyism make me feel sick. The potential cost is unfathomable.
"I certainly support a full independent investigation, judicially-led if necessary, to clarify and substantiate information that is now in the public domain and, indeed, that which is not.
"We must also seek to mitigate the devastating financial effects of this flawed scheme."
At that stage Sugden drew the line at supporting a no confidence motion, arguing that it was too early: "I will not support the motion tabled by the Opposition and smaller parties because I believe it to be premature.
"You ask me to support a motion that excludes the First Minister on the basis of no confidence: my confidence or, indeed, lack of confidence in the First Minister will be based on substantiated information, not allegations manifested in the media."
She had a point. A motion of no confidence against a background of constantly breaking stories, social media hysteria, political point-scoring and lack of clear paper trails was premature.
And it was always going to be difficult for the Opposition parties to land any killer blows, because most of the damage was coming from the BBC's Spotlight, Stephen Nolan and a handful of print journalists.
There was clearly ineptitude of monumental proportions, along with staggering arrogance from Foster and her cheerleaders; but not enough hard evidence to justify a vote of no confidence that early. So it was understandable that Sugden wouldn't support it, and that Sinn Fein didn't take part in the vote at all.
But the story hasn't gone away. Every day brings another allegation and embarrassment. Sinn Fein will be bringing a motion to the Assembly on January 16 that will call for an independent investigation, during which it will expect Mrs Foster to stand aside as First Minister.
A key element of the motion will be the words 'time-framed', because Foster will not step aside for what could become months on end. The DUP is still saying that she won't step aside for a single day, but even it knows that is a nonsensical and untenable position to adopt.
The DUP can deploy a petition of concern to protect her; but that won't be enough to prevent Sinn Fein withdrawing from the Executive (leading to either suspension or an early election) and robbing her of the First Minister's role anyway. Nor would it be enough to stop Sugden deploying her own nuclear option and withdrawing from the Executive, which would also plunge it into crisis.
On this occasion it would be impossible to replace her with anyone from a smaller party, because all of those other parties supported the vote of no confidence in Foster.
She rejected the motion of no confidence - but what will she do when presented with a Sinn Fein motion demanding an independent investigation (which she supported on December 19) and the standing aside of the First Minister?
More importantly, what would she do if the motion is passed (and I'm pretty sure that upwards of 90 MLAs would support it) and Foster, backed by the DUP, refused to step aside?
There's another question worth asking: what would she do if the DUP and Sinn Fein tried to cut their own deal between now and January 16?
I noted in a piece for the Belfast Telegraph last week that neither party fears an early election, but that it would still suit their joint interests if they could reach some sort of arrangement -with Sinn Fein guaranteed DUP support for some issues in exchange for rowing back on the 'stepping aside' requirement.
In her maiden speech to the Assembly on October 16, 2014, Sugden, referring to the DUP and Sinn Fein, said: "I do have an issue when two parties make deals behind closed doors, forgetting the mandate of other elected representatives in the House."
Ironically, she became Justice Minister on the back of such a deal about 18 months later. But could she stand over a DUP/Sinn Fein deal in two weeks' time, particularly against a background in which Sinn Fein would be, to paraphrase an old line, using the DUP's misfortune for its own opportunity?
Or could she stand over a result in which a deal isn't done and the DUP exploits the rules to try and ride roughshod over the views of 100 MLAs?
Either way, she has a very difficult decision to make in the next couple of weeks. Speaking on December 19, she said: "The events that have unfolded today and throughout the past week are a farce. I would kick the house of cards down myself if Northern Ireland did not have so much to lose. Let it not be forgotten by all sides of the House that I have the capability to do just that."
In a recent interview with me she said she had a very good personal relationship with both Arlene Foster and Martin McGuinness, adding: "Both have been very kind to me."
Those relationships are going to come under enormous strain as both seek her support. She will come under enormous pressure from the non-Executive parties, too, who will be reminding her of what she said during the no confidence debate. And she will also be feeling the heat (sorry, I couldn't resist it) from a media and public who will want to know why she wouldn't now be tempted to "kick the house of cards down".
She finds herself in an extraordinary position for an independent MLA.
On her own she can bring down the Executive. On her own she can land a huge body blow on Foster. On her own she can speak up for the hundreds of thousands of people - facing the double whammy of Christmas and energy bills - who are appalled by the stupidity-on-stilts that passes for government here. The one thing she can't do is remain silent or look compliant.