Opposition formation and Executive woes.

Well. Thursday proved to be quite the interesting day at Stormont, as Northern Ireland politics witnessed a dramatic declaration and the formation of a formal Opposition in the Assembly Chamber. This is, to me at least, an exciting development for Northern Irish politics, and I know I will be looking forward to the new mandate.

Now, I have written extensively about the aftermath of the recent Assembly election, but what I have yet to mention on my blog is the discussion about the formation of an Official Opposition in Stormont. Before I launch into Stormont Storytime with Leah regarding the events of Thursday, allow me to elaborate on the Opposition discussion to set the scene.

Now, back in 2014 former Ulster Unionist-turned NI21 deputy Leader-turned Independent Unionist John McCallister proposed a Private Members’ Bill: a bill which aimed to significantly reform Stormont by creating an Official Opposition. It also proposed re-naming the Executive leaders as the ‘joint first ministers’ in lieu of First Minister and deputy First Minister, and reform the selection of the Speaker, so that they would no longer represent constituents and would be replaced by their party. Mr McCallister also proposed introducing collective cabinet responsibility in statute, thereby meaning that ministers who vote against Executive policy would have to resign.

This was quite the proposal, as  it should be noted the power-sharing Executive was established as a mandatory coalition as part of the Good Friday Agreement. Consequentially, there had been few formal entitlements provided for, such as special speaking time at Stormont, which is present in Westminster. Some developments for empowering opposition had been proposed in recent times. Under the finalised all-party Stormont House Agreement deal from 2014, arrangements were to have been introduced for parties entitled to a ministerial position who did not take it up to be recognised as an official opposition. This did not come to pass however, as the SHA was not implemented.

Mr McCallister had said that there was a demand for Assembly reform:

“The mood out there in the country is telling us: this thing needs to change or else it doesn’t deserve to exist; the First Minister is telling us that this place isn’t fit for purpose; I as a member of it can tell you that it is not fit for purpose.

“Either we reform it or it fails and, as somebody who believes passionately in Northern Ireland, I don’t want to see this place fail.”

He added that if Stormont did not undergo a process reform, it was at risk of losing some of its devolved powers, or even face another potential existential crisis – not exactly favourable at a time when the UK’s other devolved legislatures were tipped to receive additional responsibilities ceded from Westminster.

The bill was proposed in September 2015, in the aftermath of the now-infamous summer of Stormont crisis. Remember, that summer saw Stormont at risk of collapse as the Ulster Unionists withdrew from the power-sharing Executive and the DUP underwent a war of words with Sinn Féin following the revelation that the provisional IRA was still in existence. After that summer, the calls for reform grew louder, with many MLAs now viewing the Opposition bill more favourably than before. It would eventually receive Royal Assent on the 23rd March 2016, making perfect time for the Assembly election in May and the subsequent negotiations for Executive formation.

However, there were notable amendments to the initial bill. The full list of key reforms Mr McCallister proposed may be viewed here, but the Assembly and Executive Reform (Assembly Opposition) Act (Northern Ireland) 2016 does not include provision for enshrining collective cabinet responsibility in statute, nor did it rename the positions of First Minster and deputy First Minister. (The Office of First Minister and deputy First Minister -OFMdFM- was renamed to The Executive Office, but that was part of the streamlining of government departments, not due to the 2016 Act.) However, the 2016 Act does provide for the formation of an Opposition, and in turn provides for additional accountability, scrutiny and essentially a government-in-waiting.

That little Constitutional law tutorial will come into play, as I recall the events of Thursday. Yesterday’s events were weeks in the making, and the outcomes were thus: 1) the potential to have a cross-community Opposition, and 2) the potential to have either an Executive comprised solely of the DUP and Sinn Féin, or 3) the North Irish electorate having to head to the ballot box should the Executive fail to form by next Wednesday 25th May.

I was getting ready to sit down to the six o’clock news in the evening, when the news broke that the SDLP, the second largest Nationalist party in the Assembly, had declared its intent to enter Opposition. Firstly, I was excited because it meant my predictions were correct. Secondly and mainly, I was excited because of the constitutional significance of these decision, and I suppose I felt the thrill of knowing the SDLP would be acting in conjunction with the Ulster Unionists as an alternative, viable government-in-waiting.

You see, they were not the first to announce entering Opposition: during the first Plenary session since the election, Ulster Unionist Party Leader Mike Nesbitt announced the Ulster Unionists would be entering Opposition, “[the party] has decided unanimously to form the first Opposition” and boldly declared “let battle commence.” Cue a furore in the Chamber, and in the Press. I thought it was telling though that after Mr Nesbitt said this, SDLP Leader Colum Eastwood stated that the SDLP “want[ed] to see a Programme for Government we can sign up to, and if we can’t we will go into Opposition.” Evidently, there was grounds for entering Opposition at that stage, during Executive formation negotiations.

Just a day later, Mr Nesbitt was on BBC Talkback, where shared that in his opinion “a cross-community opposition [would be] in a stronger position than going it alone”. He may or may not have been hinting to the SDLP that the party should join the Ulster Unionists to form an Official Opposition.

Mike Nesbitt Opposition Tweet
I simply couldn’t resist this paraphrasing.

Negotiations continued, and the beginning of this week (16th May) saw the Alliance Party -one of the ‘main five’ and the only party of the main five who designate as ‘Other’ -declare its intent to withdraw from the Executive. This news must surely have prompted a headache for the DUP and Sinn Féin, the largest Unionist and Nationalist parties respectively, as it holds up the finalised formation of the Executive (of which they dominate).

Traditionally, Alliance holds the Justice portfolio since the Department’s creation following the successful devolution of justice matters to the Northern Ireland Assembly in 2010. The devolution of policing and justice was pledged in the St Andrews Agreement (of October 2006) and the Hillsborough Castle Agreement (of February 2010) and occurred in April 2010. Now, per the Northern Ireland Act 1998 as amended, the Minister of Justice is elected by a cross-community vote, unlike all other Northern Ireland Executive posts, which are either allocated by the d’Hondt method or appointed directly by the largest parties ie the First Minister and the deputy First Minister . This exception was made to resolve a dispute between the DUP and Sinn Féin; policing and justice matters are sensitive matters, given the history of conflict in Northern Ireland, and these parties did not want the post to become politicised at the hands of one another. Alliance stepped in, nominated Party Leader David Ford to post in April 2010 and successfully availed of the cross-community vote exception.

Mr Ford held the portfolio until the recent Assembly election, but it had been assumed by many – including the DUP and Sinn Féin, I would imagine – Alliance would again take the portfolio in the new mandate. Mr Ford may have declared his intention not to seek re-election to the post before the Assembly’s dissolution, but I suppose we assumed another Alliance MLA would take up the nomination instead. However, Mr Ford said he was not in a position to recommend to his party to take on the portfolio once more. n Alliance Party delegation left Stormont Castle after a meeting with Ms Foster and Mr McGuinness that only lasted 10 minutes yesterday. Then came the announcement that Alliance’s ruling council endorsed the party’s decision not to take up the Justice Ministry.  Mr Ford said the Alliance party’s recommendations, which “would have moved Northern Ireland forward and created a better society for all”, were “rejected by the DUP and Sinn Féin”and so the party felt it could not enter into the Executive. And this causes quite the problem.

As previously mentioned, the Justice Ministry was always held by Alliance because of the politically-sensitive issues which stem from policing and justice matters. It was considered politically astute to have an ‘Other’ party occupy the post, to prevent claims of discrimination, bias etc. should a Nationalist or Unionist party hold the position. Which begs the question: if Alliance remain steadfastly opposed to taking the post, what happens next?

The Secretary of State for Northern Ireland, Theresa Villiers, has warned that if there is not a nomination for the post, fresh elections must be called. This is not the route anyone wants to take, surely. The recent election was gruelling enough for the parties, and canvassers and candidates have most likely not even recovered from campaigning. Moreover, I doubt the electorate will be impressed with the behaviour and actions witnesses at Stormont over the recent days, meaning there could be a poor turnout. Any Assembly elected from a low turnout vote cannot claim to be representative, or in possession of a mandate.

The logical option in my humble opinion is to turn to the de facto Constitution of Northern Ireland – the Northern Ireland Act 1998. The 1998 Act as amended provides an alternative means to ensure the filling of a department post. S21A of the 1998 Act concentrates specifically on a ‘department with policing and justice functions’ so naturally could be applied in this instance. S21A(3) states the elevation of an Assembly member to the post of Justice Minister can be achieved through the nomination of the First Minister and deputy First Minister acting jointly, and passed by a majority cross-community vote. Seems rather standard – the Assembly in the Department of Justice Act (Northern Ireland) 2010, opted to use the provisions from subsection 3 to have the Minister nominated by an MLA and approved by a cross community vote in the Assembly, cue the successful election of Mr Ford.

But the Act also provides the proverbial ‘get out of jail free card’ should the former process prove unavailable, such as in the case at hand. S21A(4) provides ‘for the department to be in the charge of two Northern Ireland Ministers acting jointly’, and (5)(a) elaborates on this, by providing for the department to be in the charge of a Northern Ireland Minister who is supported by a junior Minister. It could be reasonably deduced that the drafters of S21A were aware of the politically sensitive nature of the department, were aware of the context behind it, and foresaw there could be the occasion when the post could not be filled by one MLA. Subsection 4 provides for a balanced approach, ensuring power-sharing between Nationalists and Unionists to allay any concerns about one party dominating the position. This is evidenced further by the inclusion of (5)(b) which provides for those jointly holding the office ‘to rotate at intervals determined by or under the Act’ meaning the person who was the Minister in charge of the department becomes the junior Minister, and the person who was the junior Minister becomes the Minister.

So, could the DUP and Sinn Féin avail of this provision, thereby resulting in an Executive comprised solely of these parties? Maybe, maybe not. It seems theoretically unlikely that the DUP would accept a Republican Justice Minister; even if the Sinn Féin MLA occupied the junior Minister position initially, the role would rotate in time.

As Ms Foster and Mr McGuinness seemingly sought to solve this issue on their own, they held talks with the Green MLAs, and independent Unionist Claire Sugden. Whether these were legitimate talks with the aim of attempting to ascertain whether one of these MLAs could take the post of Justice Minister, or simply a way to call the bluff of Alliance remains to be seen. My own thought was that at this rate, the Executive may end up comprising of the DUP, Sinn Féin, a collection of tumbleweeds, and the kitchen sink.

With this in the background, SDLP Party Leader Mr Eastwood, who had said he was “very disappointed” over the negotiation talks, announced that the party will go into Opposition. Mr Eastwood said the SDLP would work with anyone who was happy to work with them, but “this will be a positive and constructive opposition, not opposition for opposition’s sake.”  It was a bold decision, he said, but it was a necessary one to make as it was now evident the “other parties are not prepared to work on a Programme for Government that can bring about that change.” Moreover, it was submitted that as the SDLP has its own mandate from the electorate to work towards, the party aims to work to that mandate and stand by its policies.

I thought it was interesting and rather significant to hear Mr Eastwood say one of the party’s given reasons for withdrawing from the Executive:

“We wanted to put together a Programme for Government with actions, implementations and things that we could all be held accountable for. The DUP and Sinn Fein did not want to do that, so we were not prepared to sign up.”

It suggests the SDLP are prepared to have a collective cabinet responsibility of sorts implemented, of the sort initially proposed by John McCallister in his original Opposition Bill. I feel it is illustrative of the progressive politics promised by the party in their manifesto, of parties being subjected to scrutiny and being accountable to the people of Northern Ireland.

However, after meeting with the SDLP the First Minister and deputy First Minister were evidently unimpressed with the party’s decision to withdraw from the Executive. Ms Foster and Mr McGuinness issued a joint statement, accusing the SDLP of dishonesty and utilising media tactics and spin in a quest to stay relevant:

“For the SDLP to now claim they do not agree with the Programme for Government process is dishonest given that they were part of developing it.

“The new PfG has not been plucked out of thin air. It has involved extensive consultation with political parties in the Executive, including the SDLP, dating back to last December.

“The SDLP were involved in this process every step of the way. At no stage during it did they raise any objections, concerns or, more importantly, alternatives to this planned approach.

“The SDLP attended four workshops on the development of the new PfG from December to February.

“These workshops clearly set out the objectives for May, and a further later phase setting out specific actions to be taken.

“You would have to question why at this stage – and because of the SDLP involvement from the outset – they now say the framework they were fully involved in lacks ambition.”

“Either the SDLP had no intention of joining the new Executive and are playing to the gallery and the media.

“Or, they failed to grasp the new approach to government and are not up for the challenges ahead.

“Or, in an act of desperation inspired by their poor election result, they are now preparing to slavishly follow the Ulster Unionist Party out of government.

“We are committed to putting together the best possible PfG that will create more and better jobs and investment in our health service, our schools and support for the most vulnerable in society.”

I feel the tone and rhetoric here is rather uncalled for. I understand it is used for reasons of political PR, but words such as ‘act of desperation’ and ‘slavishly follow’ should not be used for political point-scoring by the First Minister and deputy First Minister. I don’t know about you, but I do think that it is rather ironic that parties which signed up to the Fresh Start Agreement I mentioned previously, which provided for the establishment of an Official Opposition (see Section F) in particular, now complain when an Official Opposition looks set to be created.

This is not an instance of going ‘out of government’ per the joint statement from Thursday. This is an instance of two parties opting to form an Opposition which seeks to be constructive, effective and increase accountability in the Assembly. I see no fault here. Far from abandoning the power-sharing principles of the Good Friday Agreement, these parties are offering a power-sharing Opposition to mirror a power-sharing Executive. This appears to be the Good Friday Agreement for 2016, a sign of Northern Irish politics maturing and progressing. This should be welcomed and encouraged, not sneeringly dismissed.

A power-sharing Executive versus a power-sharing Opposition. Stormont looks set to be very interesting in this mandate.