When I took up my post as Justice Minister in January 2020, I did so knowing it would be a challenging role at a challenging time, after three years without a functioning Executive and in the mouth of the UK’s formal departure from the EU.
Whilst we could have predicted many of the challenges we would face over the last 12 months – from the fractious and frequently dysfunctional nature of newly restored devolved institutions to the inevitable if often misdirected disappointment and anger when Boris Johnson’s “oven-ready Brexit” proved to be the turkey many of us predicted – none of us could have conceived of the enormity of the challenge which COVID would pose, impacting on every aspect of life and exposing the fragilities of governing in a five-party coalition.
Throughout the pandemic and without underestimating the seriousness of the challenge it has posed to all of us, we have too often been hampered in our collective response by a lack of cohesion and coherence from the Executive. At a time of uncertainty and anxiety, it is understandable people will look to the Executive for leadership and clarity. Sadly, they have been frequently let down by mixed messaging, division and delay. It is hard to believe, given the enormity of the crisis, sectarianism managed to infect the political response and yet given the nature of our politics, at another level it is depressingly predictable.
As Justice Minister, COVID brought its own challenges: protecting our prison population, ensuring our courts and criminal justice system continued to provide access to justice, and most poignantly from my own perspective, preparing for the worst case scenario of mass fatalities by creating a temporary resting place facility. However, while COVID has been a huge strain on our resources, it has not deflected me from devoting time and energy to delivering on Alliance priorities in Justice. I am determined to speed up justice, deliver for victims of crime – including victims of sexual assault, domestic abuse, stalking and human trafficking – and to protect and promote access to justice for everyone.
In fact, by the end of this mandate of just over two years, I will have brought five pieces of legislation through the Assembly. I’m not aware that any Minister – even from Alliance – has ever taken as much legislation through in the usual five-year
mandate. If that isn’t a demonstration of the cost of three years of political stalemate, I don’t know what is. As we approach the end of this mandate, I am acutely aware of all of the other things which could have been achieved had we had not been suspended for the majority of it.
Unfortunately, some parties continue to make threats to walk away again from the institutions at a time when we have the worst patient waiting lists on these islands, thousands living in poverty and having to choose whether to heat or eat, and many of our public services remain not fit for purpose and are in need of serious reform. It is unthinkable to me anyone would contemplate collapsing the very institutions which can deliver progress in that context and I do not believe the public would forgive such a squandering of opportunity.
While the threat of collapse is receding a little in recent weeks, the risk is re-establishing the institutions after the election may be incredibly challenging, as parties see opportunities to extract concessions from governments and each other in return for forming a government. What we need post-election is a smooth and swift transition to a stable Executive which can deliver for everyone. What we have is the messiness of mandatory coalition, community designations and mutual vetoes, based on a system which barely reflects the Northern Ireland of 1998, never mind the Northern Ireland of today.
What about the ‘Others’?
As Alliance leader, I am encouraged by the ‘Alliance Surge’ and I believe it is absolutely within reach for us to convert the huge improvements in our polling into a significantly increased MLA team in next year’s election. In doing so, we can also challenge the narrative that our people must forever be seen as just two communities, forever in opposition to each other, forever divided.
The rise in support for Alliance – and indeed other parties who do not designate as either Unionist or Nationalist – poses significant questions for the sustainability of our political institutions. We currently have the so-called ‘others’ making up 12 per cent of MLAs. What happens when that rises to a quarter, a third, or even a half? What if Alliance is one of the two largest parties in the Assembly?
Whilst Alliance recognised in 1998 the rigid consociationalism adopted was a genuine attempt to manage division, we also highlighted the danger that it could perpetuate division rather than incentivise cooperation, and manage division rather than promote reconciliation and cooperation. Despite being a proudly cross-community party, our votes do not count in a so-called ‘cross-community’ vote in the Executive. The petition of concern has likewise been abused to ensure that Alliance votes are worth less than those of ‘Unionist’ or ‘Nationalist’ Assembly colleagues.
This issue may seem technical for some. But it is completely unacceptable and discriminates not only against non-aligned MLAs but also to the people who vote for them. Parallel consent in this voting system, is used automatically for the election of the Speaker, changes to Standing Orders, approval of the Budget, approval of legislation in addition to any vote subject to a petition of concern. Earlier this year, an amendment to a bill I brought before the Assembly, the Domestic Abuse and Civil Proceedings Bill, was put to a division and it seems particularly perverse that my own vote on my own legislation counted for less than those of ‘unionists’ and ‘nationalists’.
Whilst the conduct of Executive business is confidential, my frustration about cross-community voting within it was widely reported in the media when the DUP vetoed the extension of COVID restrictions in November 2020. They did this using the cross-community voting mechanism, which effectively provides a veto by requiring the majority of both unionists and nationalists to pass. When a mechanism designed to protect minorities within government is abused by the largest unionist party to block public health measures proposed by another unionist minister, it confirms what we in Alliance already knew: we need system reform.
Need for system reform
During the negotiations leading to the New Decade, New Approach agreement, we raised these very issues. We were told then – as we had been in the past – this wasn’t ‘the right time’ and the can was kicked down the road. But if not now, when? If we don’t take the time to future-proof our political institutions, we risk continuing the cycle of crises that has impeded progress and our ability to deliver for people in Northern Ireland. Using a two-thirds weighted majority voting system would prevent any one party from dominating others, whilst enabling all elected MLAs to have their vote treated equally.
This isn’t an arcane procedural matter, it’s an issue of fairness. Why, in 2021, are we still faced with mechanisms that discriminate against 25 per cent of voters? The necessary changes can also stabilise the institutions and avoid recurring cycles of stalemate and stand-off. If we are serious about widening participation in politics and embracing diversity, we must stop treating those who do not primarily identify as unionists or nationalists as second-class citizens without equal voice or equal vote.
The current arrangements were always unfair. But criticisms from Alliance and others have been continually dismissed. Now as society changes and with the recent rapid growth of non-aligned parties, we may soon face a crisis of legitimacy at the heart of our institutions. The UK Government has a history of reacting only to crisis, rather than acting when challenges appear on the political horizon. They now have the opportunity to be proactive, to future-proof our institutions, and to give Northern Ireland the best possible chance of a stable, functioning government that delivers for everyone after next May.
I sincerely hope they take that opportunity ahead of next year’s elections – the very future of the institutions could well depend upon it.
A Fortnight analysis
The changed rules for cross-communal voting:
In the original 1998 Good Friday Agreement there were two options:
Para 5(d) ‘Arrangements to ensure key decisions are taken on a cross-communal basis:
either parallel consent, i.e. a majority of members of the unionist and nationalist designations present and voting
or a weighted majority (60%) of members present and voting, including at least 40% of each of the nationalist and unionist designations present and voting.
This was incorporated in section 4(5) of the Northern Ireland Act 1998 and carried forward under the Northern Ireland (St Andrew’s Agreement) Act 2006, along with a new provision to prevent MLAs changing their designation without changing their party membership.
More significant changes were made in 2006 to the provisions for the appointment of First and Deputy First Ministers. Section 16 of the 1998 Act provided that ‘two candidates standing jointly shall not be elected without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting’. In the revised version following the St Andrew’s Agreement of 2006 this was changed to require nominations to the First Minister ‘by the largest political party of the largest political designation’ and to the Deputy First Minister by ‘the largest political party of the second largest political designation’. This ruled out any other joint nomination by a majority of MLAs with a majority of both designated Nationalist and designated Unionists.
There is no provision in respect of voting by those designated as ‘Other’ who are effectively excluded from consideration in respect of cross-communal support regardless of their numbers in the Assembly.