From high drama to late night reflections

And so ends the day that was.  As I write, sections 8, 9 and 10 of the Northern Ireland (Executive Formation) Act 2019 have come into force.

Could it have played out differently?  I’ve given a lot of thought to this, and all of this comes with the rider that I am a layman whose powers are limited to google and everyday meanings.  A lawyer I am not.

Premise no.1, that Robin Newton should have taken the advice of the Attorney General.

There are so many aspects to this, and only some of them played out in Hansard.

First of all, the standing of the Attorney General to give the advice.  The problem here is that much of the Attorney General’s role appears to be non-statutory and therefore common law, but his own website restricts him to being the Executive’s Legal Adviser and protecting the public interest as guardian of the rule of law as well as his statutory obligations.  Historically, the Attorney General is effectively the Sovereign’s lawyer, and significantly on their own website it states “Neither we nor the Attorney General can provide legal advice to members of the public or business.”

That immediately runs into trouble.  Paul Givan is an MLA, but the Attorney General is not legal adviser to the Assembly, only to the Executive.  Because there are no Ministers, does an MLA have standing to seek the advice of the Attorney General, let alone the Attorney General to give it?  Does Paul’s invocation of the Attorney General as guardian of the rule of law override Paul’s status as effectively a private individual, and is a Private Member’s Bill a matter for the guardian of the rule of law as described:

As Guardian of the Rule of Law the Attorney has a responsibility to represent the public interest and ensure that all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with fundamental human rights.

Secondly, the insistence of DUP MLAs that Robin Newton must follow the advice of “the most senior law officer,” which is true to the extent that the Attorney General is the most senior non-judge in Northern Ireland.

But there’s a problem.

Standing Order 4(8) says something rather interesting.

(8) Where the Assembly is unable to elect either a Speaker under the foregoing provisions of this order, or a Deputy Speaker by virtue of Standing Order 5, the chair shall be taken, until a Speaker or Deputy Speaker is elected, by an Acting Speaker who shall be the oldest member of the Assembly.

There can be all the debate you wish about suspending Standing Orders, but Robin Newton’s powers as outgoing Speaker were correctly limited to the election of a new Speaker.  After the failed election, Standing Orders appear to treat him as having resigned for the purposes of the Northern Ireland Act 1998, because an Acting Speaker is specified as having to chair the next attempt to elect a Speaker.

Premise No. 2, that business could have proceeded after a Speaker failed to be elected.

Firstly, in principle, the answer seems to be yes, business could proceed under an Acting Speaker, but reading the NI Act, there is an arguable case that the election of a Speaker is still ongoing and an Acting Speaker must therefore complete the item of business – otherwise you end up with the ridiculous situation of not having a Speaker at all.  Even setting aside the Standing Orders for a moment, if no Speaker or Deputies are even nominated, then the Speaker and all previous Deputies have implicitly resigned by refusing to let their names go forward for re-election.

If it’s debatable whether the Speaker (or an Acting Speaker) can proceed with other business without completing the election, then a Speaker is surely correct only to proceed with what he knows is within his powers – but again, Robin appears to have ceased to be Speaker at 1.53pm yesterday.

So an Acting Speaker.  Suppose they were confident that they could proceed to other business without completing the election of a Speaker, and were prepared to have Standing Orders suspended to do so rather than convening the Business Committee to arrange a second session on Monday – premise No. 3.

And there we land into Arlene Foster leading the DUP out of the Assembly chamber, little realising that it wasn’t too late in principle.

We may not have been able to prevent this legislation going through today, but let me say this: this is not the end of the matter. As far as this party is concerned, we will take every possible legal option open to us to try to stop it. If it comes into force tonight, there are other options in terms of repealing, and we will make sure that we do everything we can in our conscience to protect the life of the unborn.

Well, of course it was too late, for another obvious reason.  There were no Nationalists left in the chamber.  Even if they had remained in the chamber, the tenor of Colum Eastwood’s remarks makes it improbable that the SDLP would have agreed to any proposal to suspend Standing Orders as required by Standing Order 77.

Perhaps a little patience through the process might have delivered a different result to the DUP, but Colum Eastwood has set a marker that shadow Assemblies won’t cut ice.  We know that Alliance has written to the Secretary of State tonight to request intense urgent talks, and I’m sure other parties will bring pressure to bear on this as well if they haven’t done so already.

And, sadly, I go back to what I wrote on Friday.

Unless evidence arises that the DUP did in fact spend the last twelve weeks attempting to negotiate with Sinn Fein in a way likely to lead to the re-establishment of an Executive, it appears for the time being that in fact, the DUP consider blocking an Irish Language Act to be more important than preventing abortion reform.

Too little, too late.  A suspension of Standing Orders reliant on the SDLP agreeing, and jumping too soon.  In the meantime, I stand over the above paragraph: until evidence is produced that attempts were made over the summer to engage in negotiation with Sinn Fein but were rebuffed, it is difficult to accept the proposition that DUP has done “everything they can in their conscience to protect the life of the unborn” since July 22nd.  However many weeks it took for the Givan/Allister Bill to be drafted, a week of high activity at the end of a thirteen week period falls well short.

And that’s the point.  If you don’t want to be viewed as a hypocrite, addressing what is known to be a fundamental issue at the last minute with little reasonable prospect of success isn’t going to cut mustard.

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