The Petition of Concern comes from the tail end of ‘The Troubles’ and the political fallout it caused. At the end of the ceasefire, legislation from Westminster saw a devolved assembly created in Stormont under the Northern Ireland Act 1998. This act revolutionised Northern Ireland with the pen now favoured over the rifle. With it, came a series of new mechanisms, which enabled the assembly to work, requiring the involvement of power-sharing and consensus. In effect, that change must be pursued by both sides. One of these mechanisms, the Petition of Concern, has been readily criticised for its regular use as a veto, its outcomes being reaffirmed by First Minister Arlene Foster as “the fairly blunt… tools of parallel consent.”
How does it have this effect? To illustrate this, imagine a proposal is tabled calling for the Ireland Flag (tricolour) to fly above Stormont by a Member of the Legislative Assembly (MLA). If this were a normal vote, a simple majority would suffice. However, this obviously would be a clear example of a piece of legislation which could anger Unionist community members. Thus, the Petition of Concern allows 30 MLAs to raise an objection to the proposal, calling for it to be supported by both community designations to succeed. Now, the vote is a cross-community one, and requires both nationalist and unionists to support the proposal. This example highlights the noble beginnings of the mechanism, to ensure that one community wasn’t antagonised by another in a majority. However, like most things in life, not all consequences can be predicted. The mechanism has evolved beyond what was first intended; now being used to split the assembly, instead of unifying it.
The ‘veto’ isn’t recognised in statute, instead it operates as a consequence of the outdated construction of the Northern Ireland Act 1998. This ‘veto’ power can be seen when looking towards the recent debate on the 2021 Transfer Test. In line with medical advice regarding COVID-19, a proposal was tabled in the assembly calling for the transfer test to be cancelled. This proposal drew support from a clear majority of MLA’s in the chamber due to Sinn Féin, the SDLP and Alliance all supporting it. On the other hand, the DUP disagreed, seeking to strike it down. Accordingly, the DUP threatened to call a Petition of Concern, which would require the backing of all 28 DUP MLA’s and 2 more from other parties. Arlene Foster commented: “I hope we don’t have to use the cross-community veto to protect the transfer test and academic selection”. However, as highlighted previously, the cross-community vote was not constructed in the Northern Ireland Act to “protect the transfer test”. It was created to stop one community antagonising the other, to stop the abuse of powers in government by one side. Instead, First Minister Foster insinuates, the Petition of Concern could be used to end any such debate regarding the transfer test, shutting the assembly down on what many would consider a normal party-political issue, thus, prima facie being outside the intended scope of the Petition of Concern.
If a cross-community vote was called, it would require a 60/40 split, for example, 60% of Nationalist MLAs and 40% of Unionist MLAs. Whilst the 60% of Nationalist MLAs was present as Sinn Féin and the SDLP both backed the proposal, the 40% of Unionist MLAs is entirely impossible. The DUP hold 28 seats - 70% of the entire unionist vote in the assembly – ergo, even with the backing of every other Unionist MLA, the vote would fail: effectively acting as a ‘veto’. Likewise, Sinn Féin also hold a potential veto as they hold a majority of nationalist seats as 70% of Nationalist seats are held by Sinn Féin.
Anger against the cross-community vote has found wind with none other than the current Minister of Justice Naomi Long who has hinted towards resigning if the cross-community vote is used once more. In fact, Minister Long warned that MLA’s should refrain from using what she coins “this abuse of power”, when reforming the executive in January 2020. Nearly a year on, this mechanism is still being used for very serious matters, such as COVID-19 restrictions as seen in November 2020 with Minister Swann’s proposals. These have a serious and direct impact on the lives of many and should not be blocked by a single party due to having a large number of MLAs. Further frustration arises when looking outside of the Unionist/Nationalist designations. Due to the fact that the Alliance Party – and many others - use the ‘other’ designation; they don’t have their votes counted in the cross-community vote. That’s right, in total 11 democratically elected MLAs who represent hundreds of thousands of people across NI, have their vote entirely disregarded when a cross community vote is called. With the rising numbers of ‘other’ designated MLAs, this lack of counting their votes shows how black and white the legislation is. It shows that the Petition of Concern is fundamentally a dated mechanism, that is not sufficient enough for 2021 and beyond.
Whilst the Petition of Concern - and the Northern Ireland Act 1998 as a whole – was a crucial piece of legislation that helped prosper a new age of democracy in Northern Ireland, it was meant as a base. It wasn’t perfect; but it was better than nothing. However, due to a lack of amendment and updating over the years, the legislation instead begins to tear a divide between our politicians. What once was a piece of legislation that helped us prosper in a new age of peace is now causing a divide once more and requires serious reform if we are truly to move forward to a lasting peace.
Seán Scally is a Law student at Queen’s University Belfast. He has a keen interest in all things Irish Law & Politics.