On Friday (14 May) the Democratic Unionist Party will elect a new leader. It’s the first time in the party’s 50-year history that a leadership contest has taken place.

This Insight looks at what this will mean for the Northern Ireland Assembly and Executive, and specifically for the position of First Minister.

Background and leadership election

Arlene Foster has announced her intention to resign as leader of the Democratic Unionist Party (DUP) on 28 May and as First Minister of Northern Ireland at the end of June.

There are two candidates to succeed Foster as leader: Agriculture Minister Edwin Poots is a Member of the Legislative Assembly (MLA) and Sir Jeffrey Donaldson is a Member of the UK Parliament. There are also three candidates for deputy leader.

Under the constitution and rules of the DUP, only party members who are also members of the Northern Ireland Assembly or the House of Commons are entitled to vote for the leader and deputy leader. To become party leader, a candidate must secure the support of at least 18 of the party’s MLAs and MPs.

There are currently 28 DUP MLAs and eight MPs. Party members who are peers cannot vote.

The DUP will hold a virtual meeting on Friday 14 May. Voting will also be online and by secret ballot. An announcement of the results is expected at around 5pm. The DUP’s Central Executive Committee is required to ratify them “as quickly as possible thereafter”.

Appointing a First Minister

This change of DUP leader means a new First Minister of Northern Ireland will need to be nominated at the end of June.

MLAs at Stormont designate themselves “Nationalist”, “Unionist” or “other” at the first meeting of an Assembly following an election. The last election took place in March 2017.

Under the Northern Ireland (St Andrews Agreement) Act 2006, the First Minister is nominated by the largest party within the largest political designation and the deputy by the largest party within the second-largest political designation.

If one resigns, the other automatically ceases to hold office and both vacant offices must be filled within a period of seven days. This means that when Arlene Foster formally resigns next month, Michelle O’Neill (the deputy First Minister) will also have to stand down.

The DUP is currently the largest party within the Assembly’s “Unionist” designation, and Sinn Féin is the largest party within the “Nationalist” designation. This means the post of First Minister will be determined by the new DUP leader, while Sinn Féin can choose to renominate Michelle O’Neill or another MLA.

What if the DUP leader is not a Member of the Legislative Assembly?

The First Minister must be an MLA.

Edwin Poots has indicated that he does not wish to hold the position of First Minister should he be elected DUP leader. This means that if he wins the party election, he has to nominate another DUP MLA to serve in that position.

Sir Jeffrey Donaldson, the other DUP leadership candidate, is an MP at Westminster, not an MLA. However, were he to be elected DUP leader, he could be nominated to become an MLA by his party.

By-elections in the Northern Ireland Assembly have never taken place because the result could alter the party-political balance within Stormont’s five-member constituencies and thus change the composition of the Northern Ireland Executive.

Instead, the Northern Ireland Assembly (Elections) (Amendment) Order 2009 allows registered political parties to nominate MLAs when a vacancy arises.

Under Section 6B of the order, Northern Ireland’s Chief Electoral Officer (CEO) asks the “nominating officer” of the relevant party to nominate a person to fill the vacant seat. After receiving the nomination, the CEO writes to the nominee asking for written confirmation that they are “willing and able to be returned as a member of the Assembly”. If they are, then the CEO declares that person returned.

So were a sitting DUP MLA to resign, Sir Jeffrey could be nominated to take their place. This process can take place relatively quickly, unlike a by-election. If Sir Jeffrey did become an MLA, under the Northern Ireland (Miscellaneous Provisions) Act 2014 he would have to relinquish his Westminster seat.

The next Northern Ireland Assembly election is due in 2022.

About the author: David Torrance is a Senior Library Clerk specialising in devolution and the constitution

Image by Son of Groucho, CC BY 2.0