How Unionism could lawfully block a SF First Minister

Following an article by Sam McBride in the Belfast Telegraph which was followed up by the BBC Nolan Show this morning (Tuesday 12 October) a discussion has begun on a technical idea which has been floated which would enable unionism to collectively come together to block a Sinn Fein First Minister.

How Unionism could lawfully block a SF First Minister

By Jamie Bryson

A technical route to blocking a Sinn Fein First Minister

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It is trite to point out that for more than two decades unionism was denied the democratic right to govern by virtue of forced mandatory coalition, providing nationalism with a place at the heart of Government despite having no democratic mandate to be in Government (when democracy is applied as it should be rather than being gerrymandered).

It has been said that the technical proposal is not possible as a matter of law. That is plainly and demonstrably incorrect.

Section 16C (2) (a) provides that the party size is to be determined “by reference to the number of seats in the Assembly held by members of the party on the day on which the Assembly met following its election”.  It states:

16C

(2) 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;

It is clear therefore that it is not the party under which members were elected, but rather the party which they belong to on the day the Assembly first meets that counts. In short, if- for example- a person stood under the banner of party A, but on the day the Assembly first met instead was a member of party B, then it would be the size of party B that would count.

It is obvious from a plain reading of s16C (2) (a) that the party strength is determined on the day the Assembly first sits. In basic terms, it is the party strength on day 1 which counts- if that dwindles as the mandate progresses it matters not.

There is of course in any event generally nothing to prohibit any person transferring allegiance from the party they stood for, to another party. If there were to be such a prohibition, then no MLA could defect to another party within the Assembly, or indeed sit as an independent if previously a member of the party. To take one example, if such a prohibition existed then the forerunner to the UUP’s present policy platform- NI21- would not have been able to adopt Basil McCrea and John McCallister as MLAs.

In order for a political party to be lawfully operating within the terms of the Political Parties, Elections and Referendums Act 2000, it would be required to be registered with the Electoral Commission.

This, it seems, was one of the hurdles the UUP threw up with leader Doug Beattie claiming that in order to register a party you would have to operate “with the characteristics of a party showing cohesion and collegiate approach in canvassing…”. This, of course, as a matter of elementary logic would be an impossible condition (if it in fact applied- which it does not) in relation to registering a political party because it is based upon hypothetical future events which cannot be known.

Rather, the requirement is merely that there would be an “intent to contest elections” and that there is a constitution and financial management plan (for which a template is provided online) in place, alongside a minimum of two office bearers (the same person can fulfil a number of office bearer roles, but there must be a minimum of two people).

Therefore, setting up a party which intends (at some unspecified future date) to contest an election is rather straightforward.

Given it has been firmly established that (1) there is no impediment to MLAs elected under the banner of party A transferring to party B for the purposes of the first day of the Assembly sitting and (2) that there is no impediment to registering a political party, it is clear therefore that when it comes to the necessary ingredients required to avail of the provisions of s16C of the 1998 Act, there is in fact nothing which prevents such ingredients being created by unionism working collectively.

Section 16C (6) provides:

(6) If at any time the party which is the largest political party of the largest political designation is not the largest political party—

(a) any nomination to be made at that time under section 16A(4) or 16B(4) shall instead be made by the nominating officer of the largest political party; and

(b) any nomination to be made at that time under section 16A(5) or 16B(5) shall instead be made by the nominating officer of the largest political party of the largest political designation.

As such, there is absolutely no impediment to the entirely lawful approach of unionist parties uniting after the election under a registered party for the first sitting of the Assembly and availing of the perfectly lawful provisions set out in section 16C of the Northern Ireland Act 1998. It is hard to see how any of those supportive of the Belfast Agreement could object to the use of the statutory provisions which give it (in theory) effect in domestic law.

The UUP have nevertheless advanced a quite extraordinary proposition. Mike Nesbitt MLA claimed the technical coming together of unionism was not possible due to a ruling of Eileen Bell, a former speaker, in 2006. This proposition is so fatally flawed it is hard to believe an elected member of the legislative assembly publicly espoused it. Notwithstanding the fatal flaws in this suggestion, the relevant ruling related to a member of another party joining an Assembly group of another party, rather than joining another registered party.

The ruling of a speaker in one mandate can not bind the speaker in a future mandate (in this case some 15 years later). If we followed the UUP position to its logical conclusion, then the ruling of a speaker two decades ago would act as some kind of binding case law, constraining the Assembly forevermore.

It appears unnecessary to go any further in deconstructing the ludicrous proposition advanced by Mr Nesbitt, however it becomes even more preposterous when you consider that it by implication must mean that the ruling of a speaker can amend or override the plain statutory provisions of not only standard primary legislation- but in this instance a constitutional statute.

At this stage it feels like a boxing match which should really be stopped, but it would be remiss not to deliver the coup de grace. Even if we were to look past the sheer ludicrous nature of reliance on a speaker’s ruling from a previous mandate as an aid to interpreting a constitutional statute, then there would still be an insurmountable hurdle for the UUP’s proposition.

The ‘ruling’ they seek to rely on is a ruling of the speaker on 11 September 2006. The relevant provision relied upon for the technical approach (s16C of the 1998 Act) only came into force on 7 May 2007. For the benefit of the UUP, 2007 is post 2006. That means even taking the preposterous reliance on this ruling at its height, it was a ruling prior to the relevant statutory provision coming into force.

There has been a clear position publicly set out by the UUP, by their most senior team of leader Doug Beattie MC MLA, Mike Nesbitt MLA and Steve Aiken MLA. They have all (publicly) stated that the rules or a ruling (I am unclear precisely which rules or ruling they refer to beyond their ‘2006 speaker’ proposition) prohibit the suggested approach. Therefore, the onus is now on the UUP to set out very clearly why they say this is so or retract their public pronouncements and accept they are wrong.

In a twitter exchange UUP leader Doug Beattie MC MLA appeared to suggest that it was not a matter of not wanting to, but rather there was a difference between wanting to and it not being possible. This, on the face of it, seemed to be suggesting that in fact it wasn’t that the UUP didn’t want to consider this approach, but rather it was that they (mistakenly) believed it wasn’t possible.

It would be helpful if the UUP clarified whether they objected to a collective unionist approach to stopping a Sinn Fein First Minister in principle, or whether if it could be done (as it can) they would in fact consider joining with fellow unionists to do so?

The merits of the technical approach outlined above can indeed be debated, however it is simply wrong as a matter of law to suggest that it could not be done.


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