The Secretary of State for Northern Ireland has said that if a Northern Ireland Executive is not formed by Friday 28 October, then ministers will lose office and he will have to call fresh elections.

In a written statement on 20 October 2022, Chris Heaton-Harris said legally the election must take place within 12 weeks and that “time is running out for the parties to come together, form an Executive and avoid this outcome”. Northern Ireland’s Chief Electoral Officer has suggested elections could take place on 15 December.

This Insight looks at the background to the Secretary of State’s remarks and what the law requires him to do.

May 2022 Assembly election: no Executive formed

The Northern Ireland Executive has not fully functioned since February 2022, when the Democratic Unionist Party (DUP) withdrew its First Minister from office in protest over post-Brexit trade rules known as the Northern Ireland Protocol.

A Northern Ireland Assembly election took place on 5 May 2022. Sinn Féin emerged as the largest party and the DUP as the second largest. This meant Sinn Féin was entitled to nominate a First Minister and the DUP a deputy First Minister. The leader of the DUP, Sir Jeffrey Donaldson, refused to nominate a deputy First Minister until the Northern Ireland Protocol had been resolved. This meant an Executive could not be formed.

The Assembly has been recalled three times since May in attempts to break the impasse but failed on every occasion. Assembly recall petitions require signatures of at least 30 Members of the Legislative Assembly (MLAs) to succeed.

More time given to form an Executive

Before February 2022, the Secretary of State was required to propose a date for an Assembly election if Northern Ireland Ministers (including the First and deputy First Ministers) were not appointed within a 14-day period after the first meeting of the Assembly following an election.

New provisions in the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 (which received Royal Assent on 8 February 2022) were intended to reduce instability in Northern Ireland’s political institutions. The Act extended the 14 days to up to four six-week periods (which renewed automatically).

The statutory 24-week period since the May 2022 elections runs out just after midnight on Friday 28 October.

In oral evidence to the Northern Ireland Affairs Committee on 18 October, the Secretary of State ruled out any legislative changes to avoid the legal requirement for him to call another election:

In this place [Parliament], I cannot see the space for any emergency legislation, let alone a general will for it. I discussed it with my Cabinet colleagues this morning. I cannot be clearer: that is what will happen on 28 October.

Reaction in Northern Ireland

Michelle O’Neill, who leads Sinn Féin in the Assembly, has said she is “ready to form and lead an Executive today to support workers, families and businesses through the cost-of-living crisis”.

But the DUP MLA and former First Minister Paul Givan said that while he wanted the institutions “to be up and running” he believed “it would take a miracle for that to happen before the deadline of Friday”.

Naomi Long, leader of the Alliance Party, has launched a recall petition to debate the 28 October deadline. She said that:

considering the cost of living and cost of business crisis, it is reckless and irresponsible in the extreme to allow the [devolved] institutions to drift into deeper crisis, dragging in its wake our public finances and public services. Engaging in ransom politics at this time is completely scandalous.

Planning for an Assembly election

Northern Ireland’s Chief Electoral Officer, Virginia McVea, told BBC Radio Foyle that another Assembly election would cost more than £6.5 million. She also said contingency planning was underway, including contacting “about 600 odd polling places and nearly 9,000 potential staff” to see if they would be available.

According to the BBC, the Chief Electoral Officer has written to Northern Ireland’s political parties to say the election date, if the deadline for Executive formation is not met, could be 15 December 2022.

Also interviewed by the BBC, the Secretary of State defended plans to call another election saying they were “never a waste of time and money” and that an Assembly election in December, if necessary, would be a “down payment for democracy”.

Voters in Northern Ireland elect 90 MLAs, five each in 18 multi-member constituencies. Elections are conducted under the Single Transferable Vote (STV) system of proportional representation, which involves transfers of second and third-preference votes (and so on). Votes are counted manually, a process which can take one or two days.

About the author: David Torrance is the Northern Ireland specialist at the House of Commons Library

Related posts