The Belfast Agreement (well, the St Andrews Agreement) is close to breaking down…

David Ford is a past leader of the Alliance Party. Here he lays out a number of scenarios which could arise in this year’s Assembly elections which suggest that the “ugly scaffolding” of St Andrews is getting close to a final nervous breakdown.

Cast your mind forward three months or so.  Forget about the Protocol, Article 16, collapsing the institutions.  It is the afternoon of Saturday 7 May 2022.  Across a few constituencies the final seats in #AE22 have still to be formally declared but the pattern is quite clear.

In TV studios, pundits and activists are arguing about the implications. Some local party groups are planning their party that night, but the leaderships of five parties are preparing urgent meetings to deal with the new scenario.  Even in Stormont House, the SoS and his advisers are engaged in a long overdue ‘what on earth do we do now’ meeting.

The reason: the results of the election have demonstrated that the ‘ugly scaffolding’ of the Good Friday Agreement (or to be more precise, the St Andrews deal between Blair, Ahern, Paisley and Adams) doesn’t work any longer.

I do not suggest that any one of the following scenarios is likely, but – based on the elections of 2019 and polls since – they are all within the bounds of possibility, and they are not all mutually contradictory.  Each of them presents major problems to the appointment of First Ministers and the formation of an Executive.

Remember that, under St Andrews, the largest party nominates the First Minister and the largest party of the larger different Designation nominates the Deputy First Minister.  Apart from electing a Speaker, the Assembly cannot act unless these two posts are filled.

1 Sinn Féin becomes largest party, Nationalist largest Designation

There is already speculation whether the largest Unionist party (whichever it is) would agree to provide the Deputy First Minister, and neither DUP nor UUP seems prepared to answer the question.  What is clear is that Unionism losing its plurality, just one election after losing its majority, is likely to be destabilising.  This is the case, even though everyone knows that the FM and DFM are co-equals in every respect.

2 Sinn Féin becomes largest party, Unionist largest Designation

This scenario is also acute in a slightly different way: if there are more Unionist MLAs than Nationalists in total, the arguments of the refuseniks against taking ‘second place’ would become more heated.  “There are more of us than there are of them, …”

3 Alliance becomes largest party, Unionist largest Designation

Alliance would be entitled to nominate the First Minister and the largest Unionist party the Deputy First Minister.  How would this be accepted by elements of Nationalism?  Those who think the GFA is constitutionally about giving Nationalism equal rights to Unionism (an assumption which is not actually the case with the legislation) would probably claim discrimination.  There is no doubt that many people think that the principle of parallel consent (agreement between the majority of nationalism and the majority of unionism) is enshrined in the appointment of FM and DFM, but that is merely the assumed result, based on elections before 2006.

4 Alliance becomes largest party, Nationalist largest Designation

Alliance would be entitled to nominate the First Minister and the larger Nationalist party the Deputy First Minister.  This would imply Unionism losing not just the post of First Minister, but all presence in The Executive Office.  It would be a major blow to Unionist confidence and might well precipitate a refusal to nominate any Ministers, even though Unionists would probably be entitled to three (perhaps four) of the eight other Ministers.

5 DUP largest party, Sinn Féin largest party of next larger Designation, but together have less than 45 MLAs

Rights to nominate the First Ministers would officially stay the same, but the ‘two larger parties’ would have clearly lost the right to lead the Executive that they have held since St Andrews.  So the possible Order Paper for Day 1 might run:

  1. Members sign the Roll
  2. Election of Speaker
  3. Nomination of First Minister and Deputy First Minister
  4. Motion of No Confidence in FM and DFM

How could two parties which have lost seats demonstrating that they have lost the support of the electorate, and cannot now command a majority between them, legitimately expect to lead the Executive?

6 DUP largest party, Sinn Féin largest party of next larger Designation, but a coherent alternative coalition has more than 45 MLAs

If there is any argument for the continuation of leadership by Sinn Féin and the DUP in the previous scenario (based on current law and no real alternative) it vanishes entirely under this scenario.  Item 4 on the Order paper could be followed by:

              5 ‘This House believes that the Executive should be led by X and Y as First Ministers.’

7 DUP plus TUV constitute more than 60% of Unionists

Even if the UUP was the largest Unionist party and agreed to work with Sinn Féin in The Executive Office, it is possible that the other two Unionist parties could have a blocking minority in the Assembly on as few as 22 or 23 seats.  This minority could block the passage of key matters such as the approval of a Programme for Government or Budget which require a ‘cross-community’ vote.

8 Sinn Féin largest party, Alliance second largest, DUP largest Unionist party

This could produce a similar blockage but this time within the Executive.  On probable numbers, Sinn Féin would have the First Minister plus two others, the DUP would have the Deputy First Minister and two others, Alliance would have two and the SDLP and UUP one each.  The current Executive has seen the DUP make use of the so-called ‘cross-community’ vote to block measures it disagrees with.  These include elements of a Justice Bill that all others supported and Health Regulations proposed by the only other Unionist Minister.

Under these likely numbers of Executive Ministers, the DUP’s three Ministers, potentially based on having fewer than 20 MLAs, would have an absolute veto over all Executive business.

I suspect that there are other possibilities, but finally:

9 DUP largest party, Unionism largest Designation, Sinn Féin second largest party, Nationalism second largest Designation

Business as usual.  Carry on as before.

But how long can we continue with the extremely ugly scaffolding of St Andrews when it is clearly failing to provide good governance around an agreed programme?

In particular, as the number of MLAs who do not designate as either Nationalist or Unionist increases to nearly twenty out of ninety, how can a democracy continue to discriminate against them and the almost 20% of the population they represent?

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