Newton Emerson: Stormont’s voting system is almost certainly unlawful

The European Convention on Human Rights requires that elections “ensure the free expression of the people in the choice of the legislature”. This right must be enjoyed without discrimination “on any ground”, including political opinion, religion, national or social origin and “association with a national minority”.

Yet in Stormont, not all elected members are equal. Those designated as nationalist or unionist are privileged over those designating as “other” in cross-community votes.

Such votes are legally required for a list of key decisions, including changing the number of Stormont departments or amending the ministerial code. A cross-community vote can also be required for any matter deemed significant or controversial if 30 members sign a petition of concern.

These votes only pass with an assembly majority that includes majorities of both unionists and nationalists, or 60 per cent of the assembly including 40 per cent of both unionists and nationalists. “Others” effectively do not count.

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This unquestionably discriminates on grounds of political opinion. Other categories of discrimination are invoked as “others” come to be seen as an identity group.

It is an extraordinary contradiction. Enacting the European Convention in Northern Ireland law is a pillar of the Belfast Agreement, which therefore fundamentally clashes with itself.

The problem with community designation has always been known and Alliance, its primary victim, has always sought its abolition

Perhaps as remarkably, it has taken a quarter of a century for this to be seriously challenged.

At Alliance’s annual conference last Saturday, leader Naomi Long said that while she would prefer to see Stormont reformed through political agreement, her party has received legal advice that the system is unlawful and it is considering a human rights case.

The problem with community designation has always been known and Alliance, its primary victim, has always sought its abolition. In 2015, the assembly was warned of the system’s probable unlawfulness by the Northern Ireland Human Rights Commission.

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It has taken three recent developments to bring the issue to a head.

First, Alliance’s growth since 2019 means the “others” are no longer irrelevant in practice - the unspoken excuse for discriminating against them in principle.

Second, collapses of Stormont by Sinn Féin and the DUP have built pressure for reform with the helpful balance of both sides having been as bad as each other - constructive whataboutery, as Tony Blair might have called it.

Finally, the Windsor Framework proposes using a cross-community vote to release the Stormont brake. For Alliance, this is a last straw and a timely opportunity. The British government will consult with Stormont parties on how to insert the brake into the law enacting the Belfast Agreement, alongside other changes that might be necessary to restore devolution. A door has opened to pursue wider reform.

Alliance’s reform agenda is rather too wide to fit into a neat human rights argument.

The party’s campaign to “end ransom politics” is focused on the executive. It is proposing an immediate tweak to the rules so no one party could collapse Stormont by walking out, although every party would retain their entitlement to be in office. With the threat of boycott removed, further reform could be considered at length.

The danger for Alliance is a neat fix to its human rights complaint leaving wider reform untouched

This idea has captured public attention and garnered sympathy at Westminster.

Alliance also benefits from a widespread belief that community designation unjustly bars it from nominating a first or deputy first minister.

In reality, such nominations are a rare instance where all three designations are treated equally. Alliance is only disadvantaged by the small size of “others” overall. Besides, the Convention rights have nothing to say about the composition of an executive, only of a legislature.

A cross-community voting mechanism for significant decisions was added to the executive by the 2006 St Andrews agreement. This certainly discriminates against “other” ministers but it would be a stretch to say the Convention dictates how coalitions should manage themselves. Few judges would want to open that can of worms.

The danger for Alliance is a neat fix to its human rights complaint leaving wider reform untouched.

If a cross-community vote was redefined as a weighted majority - an Alliance proposal - the designation system would be difficult to fault under human rights law. Another sticking plaster would have been applied to Stormont and it might lurch on, with the veto of the large parties still in place.

So a clear-cut legal case of right and wrong must become leverage in political deal-making. Alliance can say there has to be a change to assembly voting, which could open up a can of worms, unless reform of the executive is considered as well.

Perhaps obtaining that immediate tweak to the veto would be enough for stability.

As Long told the conference: “I doubt that either of the two main parties would actually walk away from government if they thought for one second that it would continue in their absence.”