Last month kicked off with a Lucid Talk opinion poll that placed Alliance close to catching the DUP for second place behind Sinn Féin.
So what happens if Alliance overtake the DUP at next May’s Assembly Election? Could we have a situation where the third largest party still veto practically anything at Stormont, and would such an arrangement be sustainable?
This question is asked in the context that the original intention of power-sharing safeguards was not to have vetoes that could be wielded without reference to any objective criteria.
The unimplemented GFA safeguards
The intention of the GFA was for key safeguards to be tied to equality and human rights criteria, centring round an NI Bill of Rights. This was the express linkage of the ‘Petition of Concern’ veto in the NI Assembly. It was however never implemented as intended.
The abuse of the Petition of Concern over issues that are clearly not related to safeguarding the actual rights of any section of the community, has at least for now made its use less tenable. No Petition of Concern has been invoked since Stormont’s NDNA restoration. Yet this is not the only Stormont veto. Other blocking mechanisms continue to be invoked and can grind progress on practically any issue to a halt.
The DUP’s St Andrews Stormont Veto
Whilst the Petition of Concern was exercised in the public glare of the Assembly, Stormont’s other vetoes are exercised in the usually cabinet confidential world of the NI Executive.
Public attention did however focus in on the DUP’s use of such a ‘cross community’ veto to twice block proposals from the Health Minister, Robin Swann, to contain the pandemic back in October. In July, the DUP had used the same veto to block an SDLP proposal to seek an extended Brexit transition, and delay the application of the NI Protocol.
This particular veto was not in the GFA but had been introduced at the behest of the DUP under the 2006 St Andrews Agreement. It changed the role of the NI Executive. Individual Ministers could (usually) no longer take decisions within their own Departmental remits if they were deemed ‘significant’ or ‘controversial’. Instead, such decisions could require agreement of the whole NI Executive.
A second change ensured that these decisions would not be made subject to a simple majority vote. Rather, any three ministers could require the vote to have ‘cross community’ support to pass - in practice meaning there is a unionist or nationalist veto. Having three ministers (and three out of the four unionist ministers), the DUP was able to therefore veto Robin Swann’s coronavirus proposals on its own.
As seemingly any equality issue can be ‘controversial’ to the DUP, this turns the intention of GFA on its head. What was originally envisioned in the GFA as a safeguard, linked to compliance with ‘equality requirements’ in a Bill of Rights, can instead be used by one party to block measures that advance, rather than breach, minority rights and other rights. (Reforms after NDNA, implemented despite DUP backbench resistance, only limited the use of this ‘St Andrews veto’ over planning and some ‘cross cutting’ decisions. Its use over ‘controversial’ issues remains intact.
The use of the St Andrews veto, like other ministerial actions, would be unlawful if it conflicted with any of the rights in the NI Bill of Rights. (The ‘right to health’ for example could be breached by extreme ministerial actions that run counter to scientific/ medical advice on urgently needed measures to contain a pandemic). The absence of the Bill of Rights, alongside the subjective nature of the term ‘controversial’, means DUP ministers were on their own able to use the St Andrews veto mechanism over Robin Swann’s proposals without having to meet any real objective criteria.
This is not the only veto in current use, that can be exercised by just one party. Another allows either the First or deputy First Minister on their own to veto Ministerial proposals from even being on the agenda of the NI Executive meeting, meaning a decision cannot even be discussed or taken. (A protocol apparently says this should not be used for more than three meetings; but is not reflected in the binding Ministerial Code.)
The Finance Minister, under questioning from a Stormont committee, indicated this veto was used recently half a dozen or so times through December and January by the First Minister to block a decision to discuss a draft Budget. A British government report to the Council of Europe recently reported the veto had been used to block consideration of a decision to take forward the Irish and Ulster Scots strategies, which are required by law.
There is an exception restricting the use of the ‘St Andrews veto’ (unless the First and deputy First Minister both agree otherwise), the mechanism cannot be used to veto anything that relates to commitments already in Programme for Government. That exemption can however be got around by just not having a Programme for Government, as is currently the case at Stormont, despite one having already been negotiated in NDNA a year ago.
After the May 2022 Assembly election
So, returning to the above scenario where Alliance end up ‘second’ with more MLAs than the DUP, what happens to these vetoes if, for example, both parties have two departmental Ministers?
Well, firstly, being second largest party would not likely mean an Alliance deputy First Minister. That goes to the largest party in the second largest ‘designation’. So combined ‘others’ (Alliance, Greens, PBP MLAs) would first presumably have to overtake either the number of combined ‘unionist’ or ‘nationalist’ MLAs for second placed Alliance to take that position.
The DUP would therefore retain its First or deputy First Minister spot and could happily continue to veto items off the NI Executives’ agenda. If an actual Programme for Government itself is successfully vetoed off, then most other ministerial decisions the DUP thinks are ‘controversial’ are fair game to be blocked by using the ‘St Andrews Veto’.
The DUP could however not win a majority vote at the Executive on its own. It would need three ministers to invoke the St Andrews veto on a ‘cross community’ basis, but if its two ministers can be joined by its deputy or First Minister that threshold is reached; and the third largest party could still veto practically everything. (A different scenario would emerge if one first Minister was required to ‘agree’ their vote with the other).
This situation is compounded because, currently, the votes of ‘Other’ Ministers or MLAs do not count at all in such votes. Despite being termed ‘cross community’ votes, there is no linkage to either community background, or even a ‘passports held’ type criteria drawing on – with some minority protection - the GFA citizenship provisions of ‘British or Irish or both’. Instead, only politically designated ‘unionist’ or ‘nationalist’ votes count.
The contradictions and tenability of the current approach will surely be further exposed by electoral reconfiguration. Take the situation whereby a big proportion of voters from unionist backgrounds are voting Alliance, yet the votes continue to count for nothing in ‘cross-community’ votes.
The intended GFA safeguards have already been turned on their head to be replaced by vetoes that can sustain the worst discriminatory polices of the old Northern Ireland, in areas as diverse as housing, minority languages, and children’s rights. The best way of protecting everyone’s actual human rights, including those of a future unionist minority, is surely to return to implementing safeguards grounded in objective rights-based criteria.
• Daniel Holder is the Deputy Director of CAJ
