High Court confirms that one part of the DUP’s Stormont veto has been weakened. Remarkably, the party is itself responsible
On Tuesday, Belfast High Court delivered a judgment which seemed to be about electricity but had nothing to do with electrical power. Instead, the judge’s decision has enormous implications for political power and for how Northern Ireland looks and feels over coming years.
What at first might seem like a dry document is in fact the key to a remarkable story about Arlene Foster’s flaws. The judgment indicates that last year she gave away part of the DUP’s hard-won Stormont veto without even realising it.
This story begins in the years after the Belfast Agreement. Unionists were deeply uneasy about Sinn Féin being in government – particularly after unilateral decisions by republican ministers, the most high profile of which was Martin McGuinness’s abolition of the Eleven Plus.
Almost two decades ago, as the DUP overtook the Ulster Unionists and realised that if it wanted power it was going to have to govern with Sinn Féin in Stormont Castle, the party was vulnerable to accusations of hypocrisy. It needed to be able to tell its supporters that it had achieved substantial changes to the 1998 Agreement.
The fundamental architecture of the Agreement was not going to be dismantled, but the DUP targeted changes which it could present as ending ministerial solo runs.
In the St Andrews Agreement, that was largely achieved, with an expanded mechanism whereby the Executive could intervene to curb a minister’s power; once at the Executive table, the DUP could block what it opposed.
The price was sluggish government and a tail of untaken decisions. But not only was the DUP prepared to pay that price, its key decision-makers – and Richard Bullick in particular, the back-room legal expert who crafted this strategy and then refined it over subsequent years – prized it.
From the DUP’s perspective, there was sound ideological reasoning behind that strategy. It calculated that Sinn Féin, as the party most unhappy with the status quo, would want to use its power to effect radical change. If Sinn Féin wanted to take the car onto the rally track, the DUP was only going to let it do so if it had its hand on the brake.
This system was largely accepted by all sides until a remarkable series of events last year. Most remarkably, it was the then DUP leader, Arlene Foster, who was central decisions which had significant implications for what the party had constructed.
Last summer Mrs Foster and deputy First Minister Michelle O’Neill suddenly introduced a bill to alter these arrangements. The two ministers rammed the legislation through the Assembly under emergency provisions which limit scrutiny.
Mr Bullick publicly warned the party to change course because it did not understand what it was doing. Dismissing the advice of the man who knows more about this area of law than almost anyone else alive, Mrs Foster refused to budge and pushed ahead to a final vote on the bill. Unnerved, a swathe of DUP MLAs deserted her in the largest parliamentary rebellion in the history of the DUP.
But that was insufficient to kill the bill and it became the Executive Committee (Functions) Act (Northern Ireland) 2020.
Mrs Foster had presented the bill as dull and technical. She never even appeared in the Assembly chamber on the four occasions it was discussed there.
A crucial reason for Mrs Foster’s support for the legislation was her mistaken belief in the existence of a fall-back mechanism which allowed any three DUP ministers to call any matter into the Executive and block it. No such power has ever existed, but when that was pointed out to Mrs Foster she refused to acknowledge her error and pressed ahead regardless.
Tuesday’s ruling by Mr Justice Scoffield – in relation to planning permission for a north-south electricity interconnector – is the first time that the legislation has been tested. The judgement – delivered by the man who as David Scoffield QC questioned Mrs Foster at the RHI Inquiry and who has acted both for and against DUP departments on this area of law – is likely to be the seminal judgment on the powers of individual Stormont ministers.
While the judgment is highly technical in nature and Mrs Foster is not mentioned by name, it undermines her credibility. On multiple contentions by Mr Bullick last year, the High Court has endorsed his interpretation of what Mrs Foster’s law meant.
Last year Mrs Foster justified what she was doing because of the Buick judgment two years earlier. The detail of that case is now unimportant, but Stormont’s lawyers believed it lowered the bar on what decisions would have to come to the Executive to a degree which would swamp the Executive.
Mr Bullick said they were wrong; Buick simply restated existing case law which endorsed what the DUP had won at St Andrews – that the power existed for most big decisions could be pulled into the Executive. But it was largely a deterrent to solo runs, rather than something which in practice saw the Executive dabble in most decisions taken by ministers.
Mr Justice Scoffield said he had “some doubt about the force of the advice” from Stormont’s lawyers on Buick. He went on to say: “In light of this, I consider the suggestion that Buick heralded a significant change in the courts’ approach to have been somewhat overblown.”
Nevertheless, in response to the legal advice which the judge thinks was overblown, last spring Infrastructure Minister Nichola Mallon asked the Executive to agree to her tabling legislation which would give her the sole power to decide major planning applications.
However, Mrs Foster and Ms O’Neill intervened and took control of the issue. Sinn Féin appears to have shown little interest, but the DUP pushed to widen the bill to also put in place a new test for ‘cross-cutting’ – until then, any decision which “cuts across the responsibilities of two or more ministers” and so cannot be decided unilaterally by one minister.
The Foster-O’Neill law meant that was restricted to only cover decisions which affect the exercise of the “statutory responsibilities” of another minister “more than incidentally”. The judge said that change in language made it “less clear” as to what is cross-cutting.
He said that “the carve-outs or exceptions to Executive decision making have been increased” due to the legislation. In other words, the new law could make it easier for ministers to take more decisions unilaterally.
Mr Justice Scoffield said the act served to “narrow the scope of…requiring matters to be brought to the Executive” and that the legislation “has made a significant alteration to the balance of decision-making as between individual ministers and the Executive”.
However, this area of law is exceptionally complex. There is another element of the legal framework on what ministers can do – the statutory Ministerial Code, introduced at St Andrews. It was meant to be updated immediately after the legislation passed last July.
The court revealed that a senior Stormont Castle official submitted a draft new code to the first ministers last September but that since then nothing has happened.
Because of that, the full impact of last year’s legislation has not yet been felt. The block on amending the code seems to have come from the DUP. That may have been because Mrs Foster realised she had made a grave mistake.
But not necessarily so. Her reasoning may have been prosaic: Having suffered such a rebellion at the bill’s final stage, Mrs Foster faced the prospect of more rebellion from DUP MLAs to the extent that the Ministerial Code might not have received a majority of unionist votes in the chamber and thus would have failed imperilling her leadership.
Mr Justice Scoffield said that the mismatch between two statutory documents “is, without doubt, now somewhat of a mess”. However, the immediate practical impact of that is limited for now because aside from the cross-cutting rule there is a separate requirement for matters which are “significant or controversial matters that are clearly outside the scope of the agreed programme [for government]” and that will cover most major issues.
Mr Bullick argued that the expansive cross-cutting test was an important fall-back position if an issue was not caught by the other test.
Although the judge found that Ms Mallon had acted in technical breach of the law, she had acted in good faith by informing her Executive colleagues at every stage of her decision-making, and so “this was very far from the type of case where the minister has sought to ‘go on a solo run’”.
The judge urged the Executive “to proceed as expeditiously as possible with amendment of the Ministerial Code in order to reflect the new and modified requirements” of last year’s law.
Essentially, the full implications of last year’s law are not yet in force because the Ministerial Code has not been updated to reflect the new policy. The DUP – now with a new leader and with Mr Bullick back in Stormont Castle as an adviser – is unlikely to agree to it being altered in that way, meaning a legal quagmire which is likely to make it more attractive to legally challenge ministerial decisions.
But that is not all. One consequence of the mismatch between two statutory obligations on ministers is that there is now a disincentive for the DUP to agree a programme for government.
The test for significant or controversial issues which must come to the Executive is that they must be “clearly outside the scope of the agreed programme” for government. In the absence of such a programme, then it is just whether they are significant or controversial. This legislation is now likely to mean no programme for government at all.
I asked Mrs Foster if she accepted that she had got this wrong. She responded that I should “be very careful as Mr Justice Scoffield accepted that matters which was [sic] significant and controversial did need to go to the executive” – something which was never in dispute here.
Mrs Foster said that questions should be referred to her former special adviser, Emma Little-Pengelly. When it was put to Mrs Foster that ministers – not advisers – are responsible for decisions, she said “if you wish to speak to Emma, she is available. I am not”.
One DUP figure who backed Mrs Foster’s interpretation of this insisted that the judgment was not detrimental to her position. They said that it was “a vindication of Arlene’s position” because the court had found that “despite fears and allegations articulated at the time that the bill ‘rolled back’ St Andrews safeguards, the court has confirmed that is not the case…the bill has not facilitated ministerial solo runs and has had no practical impact on the types of issues going to the Executive”.
This episode confirms Mrs Foster’s central flaw – a lack of attention to detail. This is the politician who didn’t read the RHI legislation before she asked MLAs to vote it into law, and the politician who last year 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.
But it reveals a deeper flaw – that even when it must be obvious to Mrs Foster that she has made a mistake, she does not appear able to bring herself to accept that.
This does not just reflect badly on Mrs Foster. DUP MLAs and MPs allowed this to happen. Most of them knew for years – certainly since RHI emerged - that Mrs Foster was not up to the job, but they permitted her to remain in post because they couldn’t agree on who they wanted to succeed her.
Now they are left with the consequences of that collective failure.