A briefing paper on the legal issues surrounding a Scottish independence referendum
Resignation of Martin McGuinness
On 9 January 2017 Martin McGuinness of Sinn Fein announced that he was resigning as deputy First Minister of Northern Ireland. This set in train a sequence of statutory provisions that seem likely to lead to an early election to the Northern Ireland Assembly.
Mr McGuinness’s resignation was in protest at the conduct of the First Minister, Arlene Foster of the DUP. His resignation letter sets out his reasons in detail. They pertain mainly to Ms Foster’s reaction to criticism over her role in the Renewable Heat Incentive (RHI) energy subsidy scheme, which has led to significant costs to the taxpayer and criticism from the Northern Ireland Audit Office.
Arlene Foster and RHI
In 2012, when she was Enterprise, Trade and Investment Minister, Ms Foster established a Renewable Heat Incentive scheme, or RHI. This was a subsidy scheme to increase the use of heat from renewable energy sources, and was available to non-domestic users. Variations of RHI are in place across the UK, although the operation of the Northern Ireland scheme differed in important ways. There was no upper limit on the amount of energy for which payments would be made.
In late 2015 the scheme became heavily oversubscribed. It was eventually closed in February 2016 on the grounds that it posed a risk to the block grant for 20 years, the length of time for which claimants who continue to comply with regulations will be supported.
The Northern Ireland Comptroller and Auditor General, Kieran Donnelly, expressed:
- concerns in relation to the operation of the scheme and the circumstances surrounding the large increase in demand in October and November 2015 which will result in a significant cost to the Northern Ireland block grant for many years.
According to the accompanying press release, he found that
- Commitments under the scheme have exceeded the maximum amount that HM Treasury were prepared to fund. The excess funding will now have to be met from the Northern Ireland block grant. Over the next five years, this additional cost to the NI block is estimated to be £140 million and significant costs will continue to be incurred until 2036.
The total cost is expected to be around £1bn, of which about £400m will come from the block grant over the next 20 years.
Sinn Fein had called for an independent investigation into the RHI scheme with the power to compel witnesses and documents. It also argued that Ms Foster should step aside temporarily while the investigation took place. On 6 January 2016 she stated:
- With the exception of the issue of stepping aside, we believe that the proposals provided to us by Sinn Féin provide a basis for taking an investigation forward.
- Officials have raised a number of technical issues in relation to the proposals, however there do not appear to us to be any insuperable obstacles to agreement being reached.
The First Minister also drew criticism for her reaction to the criticisms of her. Ms Foster has argued that some of the criticism is personal and some is misogynistic. Naomi Long, leader of the Alliance Party, described this as “absolutely wrong” and a “distraction tactic”. Ms Foster also posted a picture on Facebook of a guinea pig wearing heart-shaped glasses, with the caption “Can’t see all the haters when I got my love glasses on”. Ms Long suggested this was not an appropriate response to the wider situation and said “they’re not haters, they’re taxpayers. And angry ones at that”.
Implications of resignation
The present statutory framework that determines what follows from the resignation of the deputy First Minister has not been used before. Under s16B(2) of the Northern Ireland Act 1998, as amended by the Northern Ireland (St Andrews Agreement) Act 2007, the resignation of the deputy First Minister implies that the First Minister also ceases to hold office at the same time. She may continue to exercise limited First Minister functions until a new incumbent is in place.
The sub-section provides:
- If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—
- (a) shall also cease to hold office at that time; but
- (b) may continue to exercise the functions of his office until immediately before those offices are filled in accordance with this section.
The section goes on to set out the procedure for filling the two vacant offices of First Minister and deputy First Minister.
The procedure (see below for details) takes place within a period of seven days from the vacancies arising (s16B(3)), so in this case by 5.00pm on 16 January 2017. The process must come to an end during this period: no person may take up office as First Minister or deputy First Minister after the end of that seven day period (s16B(8)).
If the posts have not been filled by the end of the seven days, the Secretary of State proposes a date for an election, and an Order in Council dissolves the Assembly and calls the election. This takes place under ss32(3) and (4).
Procedure for new First Minister/deputy First Minister
The procedure is as follows:
- The nominating officers of the largest parties of the two largest designations (currently Unionist and Nationalist in that order – “Other” is also possible) put forward the names of the new First Minister and deputy First Minister respectively (ss16B(4) and (5)).
- This means that the DUP “shall nominate a member of the Assembly to be the First Minister,” and Sinn Fein “shall nominate a member of the Assembly to be the deputy First Minister.” In his resignation letter Mr McGuinness said that Sinn Fein will not nominate a person for the post of deputy First Minister.
- There is provision for further nominations, made according to the same procedure, if “the persons nominated” (the Act does not identify them separately in this sub-section) do not affirm the terms of the pledge of office and take up office within 15 minutes. This is under s16B(6) and Standing Order 44(1). The 15 minutes may be extended if approved by the Assembly.
- This process can be repeated as many times as necessary to fill the posts, within the seven days.
- The two posts must be filled together. Under s16B(9) the nominees shall not take up office until each of them has affirmed the terms of the pledge of office.
Secretary of State’s statement
On 10 January 2016 the Secretary of State for Northern Ireland, James Brokenshire, made a statement to the House of Commons. He expressed the likelihood of an early election and the seriousness of the situation:
As mentioned above, if the posts of First Minister and deputy First Minister are not filled by the end of the seven day period, an Assembly election is called. Under the terms of the Northern Ireland Act 1998 as amended by the Northern Ireland (St Andrews Agreement) Act 2007, the position is clear: should the offices of First and Deputy First Minister not be filled within seven days from Mr McGuinness’s resignation, it falls to me as Secretary of State to set a date for an Assembly election. Although there is no fixed timetable in the legislation for me to do that, it needs to be within a reasonable period.
In his resignation letter, Mr McGuinness said:
“In the available period Sinn Féin will not nominate to the position of deputy First Minister.”
I am very clear that in the event of the offices not being filled, I have an obligation to follow the legislation. As things stand, therefore, an early Assembly election looks highly likely. I should add that the rules state that, once an election has been held, the Assembly must meet again within one week, with a further two-week period to form a new Executive. Should that not be achieved, as things currently stand I am obliged to call another election. So right hon. and hon. Members should be in no doubt: the situation we face in Northern Ireland today is grave and the Government treat it with the utmost seriousness.
Mr Brokenshire stated that he was in regular contact with the DUP and Sinn Fein, and had also spoken to the Independent Unionist Justice Minister, Claire Sugden, and to the Irish Government. He went on:
The UK and the Irish Governments will continue to provide every possible support and assistance to the Executive parties. However, we have to be realistic. The clock is ticking, and an election is inevitable if there is no resolution, despite the widely held view that an election would deepen divisions and threaten the continuity of the devolved institutions.
The next Assembly will be elected under arrangements brought in by the Northern Ireland (Miscellaneous Provisions) Act 2014, and in particular by the Assembly Members (Reduction of Numbers) Act (Northern Ireland) 2016. The latter reduces the number of Members elected per constituency from 6 to 5, and thereby reduces the total for the time being to 90. This provision takes effect at the first election after the 2016 election, and, under ss1(2) and (3), this includes one called under s32 of the 1998 Act.
 “Q&A: What is the Renewable Heat Incentive (RHI) sheme?,” BBC News website, 13 December 2016. The precise calculation is on p104 of the C&AG report cited above.
 “RHI scandal: Foster ‘comfortable’ with Sinn Fein plan,” BBC News website, 6 January 2017
 “RHI scandal: Arlene Foster says calls to step down ‘misogynistic’,” BBC News website, 4 January 2017
 “Arlene Foster misogyny claims over calls to stand down for RHI probe rejected by women politicians,” Belfast Telegraph, 4 January 2017
 “RHI scandal: Foster ‘comfortable’ with Sinn Fein plan,” BBC News website, 6 January 2017
 HC Deb 10 January 2017, c175
 HC Deb 10 January 2017, c176
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