An Assembly election in Northern Ireland could be just around the corner – and within nine months of the last.
The election of 5 May 2022 was historic. The Democratic Unionist Party (DUP) lost three seats, meaning Sinn Féin became the largest party in the Assembly. And the success of the Alliance Party, more than doubling its seats, proffered the prospect of a strong non-aligned bloc to challenge the unionist/nationalist dualism.
The MLAs signed on the roll and began receiving their pay cheques. But the Assembly has conducted no business since. The lack of a fully-functioning Northern Ireland legislature or executive is depressingly familiar. The post-1998 Agreement power-sharing arrangements effectively hand a veto to the largest unionist and nationalist parties because it requires their participation for the main institutions to function properly. The logic is to avoid dominance by one side or the other. The effect is to give a veto to Sinn Féin and the DUP.
The Northern Ireland Ministers, Elections and Petitions of Concern (MEPOC) Act passed early this year attempted to curtail this negative power in three main ways. First, it allows Executive ministers to remain in post without the First and deputy First Ministers (whose position, despite the nomenclature, is joint and equal). Secondly, where there is a delay in the formation of a new Executive post-election, the previous one is ‘rolled over’ to work in a caretaker capacity. Thirdly, it sets time limits so interim arrangements can’t endure indefinitely.
The resignation of the DUP First Minister, Paul Givan, in February compelled the resignation of Sinn Féin’s Michelle O’Neill as deputy First Minister but the other ministers continued in post. After the May election, the DUP went even further and refused to nominate either a Speaker or a deputy First Minister. So while the Assembly chamber has lain empty, the MEPOC Act has seen the previous Executive acting in a caretaker role: a headless zombie government.
The DUP’s actions are in protest at the Protocol on Ireland/Northern Ireland. In so doing, it is strongly supported by its voters. They see ‘protecting Northern Ireland’s place in the United Kingdom’ as taking precedence over all other political concerns and they view the Protocol as undermining it. This stance is at odds with the views of the other main parties and the majority of the electorate, who see the Protocol as, on balance, a good thing for Northern Ireland.
In the meantime, the all-too-real problems falling under the remit of the caretaking devolved ministers continue to mount. Northern Ireland has the worst waiting lists in the UK, the sharpest contraction of income in the UK and half of its households are already in fuel poverty.
If this sounds bad, it could soon get a whole lot worse.
According to the MEPOC Act the caretaker Executive has to be dissolved on 28 October 2022, i.e. 24 weeks after the Assembly’s first abortive effort to convene post-election. At that point, it’s Northern Ireland’s civil servants who will be in charge and will be responsible for overseeing the functioning of the departments until a new Executive is place. That can only come after another Northern Ireland Assembly election.
Once the caretaker ministers go, the Secretary of State for Northern Ireland is obliged to call an election within 12 weeks. Allowing for practical and statutory constraints and conventions, this means an election as early as Thursday 24 November 2022 and no later than Thursday 19 January 2023.
The prospect of another Assembly election is not a joyous one. The May election campaign was fairly dull as campaigns go, but it was especially nasty. Another election would be even more polarised. The DUP are taking a risk in punting that their hardline stance will win more first preference votes back from their unionist competitors. Smaller and moderate parties may struggle to muster the necessary sense of hope let alone the resources to face another election. Sinn Féin could be the most confident – determined to leave no doubt as to its strength this time, feeding off anger at the DUP’s tactics.
Even worse, another election would not be guaranteed to shift the dial – unless perhaps the DUP regains its position as the largest party and thus the post of First Minister. If it doesn’t, or if this time Sinn Féin vetoes the process, there will be a period of 24 weeks to form the new Executive before (you guessed it) another election would be called.
This is all sounding pretty grim. Is there any way to avoid it? It is not inconceivable that the UK government could simply decide to ignore the ticking clock, but it would soon find itself subject to a judicial review. The MEPOC Act is unambiguous as to the timelines here.
An election could not be postponed without new primary legislation going through Westminster. But the government has already presented the Northern Ireland Protocol Bill as the means by which the power-sharing institutions will get up and running again.
The reintroduction of direct rule is not inconceivable. But recourse to this in response to a problem caused by the DUP, especially when Sinn Féin is the largest party and the Alliance Party is growing, would only compound Northern Ireland’s political and democratic predicament. It would be akin to posting a ‘DNR’ on the sickbed of the 1998 Agreement. For all its flaws, that remains the only basis for governance that enjoys majority support across communities in Northern Ireland.
Northern Ireland is facing a democratic crisis which the UK government is itself unable to fix but is quite capable of compounding.
By Katy Hayward, Senior Fellow at UK in a Changing Europe.
