There has recently been some erroneous reporting of the situation surrounding the election of the First and deputy First Minister. It might be useful to outline the issues.
The relevant legislation is section 16 of the Northern Ireland Act 1998. That section originally had a total of 6 lines that governed the election in subsections one two and three. The procedure was that any two MLAs were to be jointly nominated by two other MLAs for the offices, and the Assembly had to approve the nominations with the support of a majority of Unionists and Nationalists.
That was pretty simple. The Assembly had ownership of the offices, could dictate who held them, and was at liberty to replace them as it saw fit. If the offices couldnt be filled within a period of 6 weeks, the Assembly was dissolved and an election was held.
However section 16 of the Northern Ireland Act 1998 was totally pulled apart by section 8 of the Northern Ireland(St Andrews Agreement) Act 2006. It is now a complicated mess of three parts, with different provisions consequential to each other contained in different parts. The Offices of First and deputy First Minister are now solely in the gift of the leaders of the biggest parties of the two designations. The Assembly has no role in the selection, ratification or re-appointment of the First or deputy First Ministers. In a nutshell, the leader of the largest single party in the Assembly is asked to nominate the First Minister, and the leader of the largest party of the other designation (which is messy in itself, in that MLAs and not parties designate) that is asked to nominate the deputy First Minister.
The Parliamentary passage of that clause is quite interesting. The Bill was pushed through the Commons in one day, the 21st of November 2006, and through the Lords the next day. The debate in the Commons began at 3:30pm and ended when time ran out according to the accelerated passage procedures at 10pm. The Bill had many amendments tabled to it, two of which related to clause 8. The Liberal Democrats amendment would have removed the offending sections of the clause, and the Lady Hermon/Conservative amendment would have required the Assembly to have a say.
As can be seen, the debate of six and a half hours managed to only get through one of the two dozen or so amendments selected. None of the amendments to amend clause 8 were called.
The passage of the bill in the Lords is a more interesting story however. Lord Trimble tabled an amendment to Clause 8, which was called for debate. His amendment number 6 would have, like the Lib Dem amendment in the Commons, removed the offending paragraphs from clause 8, and pretty much kept the Belfast Agreement method of electing (as opposed to selecting) the FM and dFM. Lords Brown and Morrow (DUP), voted for the amendment, with the government majority ensuring that it did not pass.
The next vote however, was on whether clause 8 should stand as a part of the bill at all. Voting against keeping the clause in the bill would have left section 16 of the Northern Ireland Act totally untouched, and retained the Unionist veto on who was First Minister. Lords Browne and Morrow voted to keep clause 8 in the Bill. They therefore voted to change the election of the FM and dFM to the present system.
What that would mean in effect is that if we had the Assembly election and a majority of the Assembly Members returned were unionists, but the unionist vote was spread over several parties with the result that one nationalist party had more Assembly Members than any one of the unionist parties, that nationalist party would nominate the First Minister. So, having set out a process in new Section 16A whereby the First Minister will come from the largest designationthe largest group as between unionists and nationalistsit is now suddenly turned on its head if, in the vagaries of the election, one nationalist party gets more Assembly Members than any one of the unionist parties. To put it crudely, and I am sorry to have to do so, it seems that this is a simple fix. It was probably done at the behest of Sinn Fein and the DUP, the result of which will enable the DUP to go around Northern Ireland saying Vote for us or else youll get Martin McGuinness as First Minister, and will enable Sinn Fein to go around the country saying If all nationalists vote for us theres a chance well get Martin McGuinness as First Minister. It is a crude device which people will say is the result of the law, and it will be used to polarise the electorate. You can imagine the effect that that is going to have on politics.
It is quite inappropriate. The original proposals were better. Indeed, best of all were the provisions in the Belfast agreement which provided for a joint election of the First and Deputy First Ministers. That meant that there had to be agreement between the relevant unionist and nationalist parties on who would be elected. As a consequence, it meant that we would have had a say. It was my intention, bearing in mind the options it offered, that if we had a situation where Sinn Fein got more seats than the SDLP so that the Deputy First Minister would come from Sinn Fein, I would have used the influence given by the joint nomination to ensure that the individual who was nominated by Sinn Fein was someone likely to command respect across the community as a whole and thus able to carry out his functions effectively. That was the advantage of the original provisions.