Clearly, two weeks ago, the DUP and Sinn Fein reached an outlined Agreement which would have enabled the appointment of a First Minister and deputy First Minister and then of eight Executive Ministers. In turn, this would have allowed restoration of the Assembly in plenary and in committee.
This first paragraph alone needs to be understood to enable us to grasp, structurally at least, what the options are now. The key point is this: the Assembly exists. The Assembly was correctly elected in March 2017, and it continues to operate – with its constituency offices, all-party groups, representative functions and so on.
As noted before, Northern Ireland has three specific peculiarities in its system which are too often overlooked by correspondents and commentators:
- it requires an Executive to be appointed before its Legislature (the Assembly) may sit in plenary and committee (and thus before it can legislate and scrutinise);
- it requires two specific parties to lead its Executive regardless of the election result otherwise; and
- it removes its Ministers on election day.
Each of these is unique. In every other system (for example, up until a few days ago in Germany or for most of the past year in the Netherlands), a Legislative Assembly can sit and even legislate without an Executive in place; parties merely need to show they have the support, even implicitly, of a majority of that Assembly (even in systems, such as Belgium’s, which require a degree of power-sharing); and Ministers remain in place until they are specifically replaced.
Interestingly, the draft agreement did consider the latter. It suggests that an Executive would formally remain in place for up to six weeks after an election (while an attempt was made to form another), and that Ministers would remain in place for a further twelve after that (in an interim or “caretaker” capacity, as is common elsewhere) after which another election would take place. There has been some indication that the UK Government may proceed to legislate for this, and that would be wise as it would remove one of the unique problems and would at least enable decisions to be made in the event of a similar breakdown in future.
It would also help with the first point, as retaining an Executive through an election would enable an Assembly to sit and conceivably even legislate, even before a new Executive was agreed. That is now an area of discussion in the media and it is indeed where the UK Government needs to give some focus. Is it really wise to block MLAs from doing at least the scrutiny aspect of their job merely because two particular parties cannot agree (as is necessary because of the middle point) to form an Executive? Indeed, is there really any reason MLAs should be impeded from doing the legislative aspect of their role? The UK Government could, if it were legislating already to reform the timescale around Executive formation, continue to allow the Assembly to operate, at very least in Committee (primarily for scrutiny) and potentially even in plenary (primarily for legislation). There would be several advantages at least to doing the former – MLAs would be back scrutinising policy and thus could themselves be seen to be doing their job (and assessed on it) by the public; civil servants would feel more content to pursue certain policies given that they would be subject to democratic and local oversight in so doing; and indeed intra-party relationships could be built up to enable talks to restore the Executive to be carried out on a broader basis (so that no MLAs again feel they are being bounced into an agreement they have not even seen). Restoring a legislative function to the Assembly may be for later down the track, but would enable issues such as Health Reform and same-sex marriage to be pursued if that were the will of the democratically elected legislature. (This of course raises the issue of the Petition of Concern – is there any reason the review agreed to by the two main parties to be concluded in June 2018 should not in fact proceed?)
The middle point is of course trickier. How do you ensure genuine cross-community power-sharing? In practice, St Andrews made things worse, not better, but there is little prospect of the UK (or indeed Irish) Government intervening here while so caught up on other matters. That is, unfortunately, a problem we are left with and it is hard to see how it will be solved by those who have no electoral motivation for solving it – but there are, at least, other things we could be doing in the meantime.