Note: this article is written on an entirely personal basis.

What is to be done?

The DUP has been single-handedly preventing the Assembly from sitting for 100 days, its defenders pointing out that Sinn Fein “prevented” it from sitting for three years, as though sauce for the goose were sauce for the gander, and ignoring the failure to offer (or at least publicise) negotiations that might persuade Sinn Fein to enter government before sections 8 and 9 of the Executive Formation Act 2019 might have come into force, due to the omission of the Ministers, Elections and Petitions of Concern Act to consider the possibility that the election of a Speaker would be prevented.

It is unlawful to prorogue Parliament “if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive”, yet one party or group of parties representing half of a designation of MLAs can prevent the Assembly from sitting at all by refusing to nominate a Speaker or support anybody else’s nomination.

So how do we get round this?

The most obvious answer is D’Hondt, as follows:-

Speaker

• If the Assembly cannot elect a speaker under the normal arrangements, the Speaker and Deputies will be appointed by D’Hondt.  There will be no penalty for failure to nominate a Speaker or Deputy.
• If all parties decline to nominate a Speaker, any independent MLA may self-nominate
• Deputy Speakers will be nominated using d’Hondt
• If no Speaker is appointed, the four longest-serving MLAs will be appointed as Speaker and Deputies, and similarly if fewer than three Deputies are appointed

 The Executive

• The Executive, including the First and Deputy First Ministers, will be appointed by d’Hondt from top downwards.
• A party may decline to nominate either the First or Deputy First Minister without losing the right to nominate Departmental ministers
• The FM and DFM must be of different designations, and ministers appointed must represent parties with a total of at least 45 MLAs, otherwise no Executive can be formed

To note, the last provision means that if, say, the DUP, UUP and TUV were to refuse to nominate ministers, the other parties, totalling 50 seats, could form an Executive.  Much as I would want to see power sharing, knowing that the remaining parties could go ahead without them would be a major incentive to nominate Ministers.

That would of course impact on the number of ministers.  At the moment, the breakdown would be as follows:-

• Sinn Fein – FM, first, third and sixth picks (4)
• DUP – DFM, second and fourth picks (3)
• Alliance – Justice (1)
• UUP – fifth pick (1)

If UUP don’t take a seat on the Executive, then Alliance would have a second minister.

On the new model:

• Sinn Fein – FM, first, fourth picks (3)
• DUP – DFM, second and sixth picks (3)
• Alliance – Justice and fifth pick (2)
• UUP – third pick (1)

If UUP didn’t take a seat on the Executive, then SDLP would have a pick, but as they plan to go into Opposition anyway, the pick would fall to SF.

Conclusion

Others, including Alliance have made proposals to provide qualified majority voting to prevent abuse of the petition of concern, but this is my proposal to at a bare minimum ensure that the Assembly can continue to meet, make legislation, and hold Ministers accountable without being prevented by any of the parties.

The warning from the latest LucidTalk poll is that the DUP is not winning votes from the UUP and another election is unlikely to increase the number of seats they hold, especially if held after the consequences of the NI Protocol Bill start to affect ordinary people.