Total Recall: Assembly Edition

Last week 31 MLAs including the DUP, TUV and UUP signed a petition and sent it to the Speaker of the Northern Ireland Assembly. That petition has led to a recall of the institutions. Tomorrow, the Assembly will sit for the first time since the death of Martin McGuinness.

The prospect of the Assembly meeting again has many people raising questions. Can MLAs stop the introduction same sex marriage and abortion reform? Is there any prospect of a government being formed? I’ve put together a quick explainer.

Why is this happening?

The Northern Ireland Executive Formations Act 2019 was passed by Westminster earlier this year. As a result, the Secretary of State must bring forward regulations to implement abortion reform and same sex marriage in Northern Ireland if an Executive isn’t in place by the 21^st October.

If an Executive isn’t formed by the 21^st, sections 58 and 59 of the Offences Against the Persons Act will be repealed and abortion will be decriminalised. The government must bring forward regulations to allow abortions in cases of fatal fetal abnormality, rape and incest. Same sex marriage will also be legalised.

The MLAs that signed the petition are attending tomorrow to debate a motion which states the Assembly should legislate on abortion, not Westminster.

Sinn Fein, the Alliance Party, the Greens have all called Monday’s meeting a ‘stunt.’ Sinn Fein isn’t sending its MLAs. At the time of writing, the parties in attendance will be the DUP, UUP, TUV. It’s been reported that one SDLP MLAs will be going. 

What happens on Monday?

The first item on the agenda is the election of a Speaker and Deputy Speaker. The rules around this procedure can be found in Standing Order 4.

The current Assembly Speaker is Robin Newton. In Oct 2017 he said he wouldn’t seek re-election as Speaker following allegations made by the BB’s Spotlight programme.

If Newton is not seeking re-election as a Speaker, the MLAs who are attending on Monday can propose another member as Speaker. A motion will be put forward saying, “That…….will be Speaker of the Assembly.”  If that motion is seconded, the people proposed can make an oral or written statement.  The Acting Speaker will then ask if there are any other proposals. If not, the Acting Speaker will put the Question to the floor and MLAs will vote.

The election of the Speaker must be passed via a cross community vote. That means either:

“the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or

(b)

the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting;”

Because Sinn Fein aren’t attending on Monday, some have speculated that the Assembly will be unable to elect a Speaker tomorrow. It’s also been argued that the votes of the ‘Others’ i.e the Alliance the Green Party, don’t matter. That isn’t strictly true.

The Norther Ireland Act 1998 is very clear. A cross community vote concerns itself with “members voting.”

Let’s pretend the DUP, UUP, TUV, three SDLP and Alliance MLAs all attend on Monday. To elect a Speaker, a majority of the MLAs present in the Chamber must vote for a nominee. In that case, the votes of the Alliance Party and Green Party matter for that part of the vote. A majority of the unionists and nationalists sitting must also support the same nominee. Let’s say one SDLP MLA goes on Monday. If a majority of unionist MLAs vote and the one Nationalist MLA votes for a nominee, that’s enough to meet the above threshold.

MLAs can decline to vote for a Speaker. There’s every chance that the unionist MLAs or nationalist MLAs could refuse take part in the election of a Speaker. If that happens, no Speaker will be elected. The same voting mechanism that applies to the Speaker also applies to the Deputy Speaker.

If nobody is elected, the oldest member of the Assembly will sit as Acting Speaker until a Speaker or Deputy Speaker is found.

Will the Assembly recall stop abortion reform in Northern Ireland?

At the present time, this remains highly unlikely. The Northern Ireland Executive Formations Act is very clear: An Executive is formed when the Office of First and Deputy First Minister is in place along with all the Executive Ministers.

Following a motion surrounding Standing Order 20(1), MLAs will get the chance to put an Executive in place.

The process of electing a First and Deputy First Minister is found in the Northern Ireland (St Andrews) Act 2006.

“Within a period of seven days beginning with the first meeting of the Assembly—

(a)the offices of First Minister and deputy First Minister shall be filled by applying subsections (4) to (7); and

(b)the Ministerial offices to be held by Northern Ireland Ministers shall be filled by applying section 18(2) to (6).

(4)The nominating officer of the largest political party of the largest political designation shall nominate a member of the Assembly to be the First Minister.

(5)The nominating officer of the largest political party of the second largest political designation shall nominate a member of the Assembly to be the deputy First Minister.”

It goes on further to say:

“For the purposes of sections 16A and 16B and this section—

(a)the size of a political party is to be determined by reference to the number of seats in the Assembly which were held by members of the party on the day on which the Assembly first met following its election; but

(b)if two or more parties are taken by virtue of paragraph (a) to be of the same size, the respective sizes of those parties is to be determined by reference to the number of first preference votes cast for the parties at the last general election of members of the Assembly;”

In other words, the largest nationalist party and the largest unionist party must nominate a candidate. That means Sinn Fein and the DUP. If Sinn Fein doesn’t attend on Monday, there is no chance of an Executive being formed.

An Executive can’t be formed unless the Offices of First and Deputy First Minister are in place. Also, of importance is the fact that the Justice Minister must be elected via a cross community vote. It isn’t clear yet whether Clare Sugden, the last Justice Minister, plans to attend.

In conclusion: it’s unlikely that an Executive will be formed on the 21st October 2019.