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Newton Emerson: Northern Ireland needs one person, one vote

Legal challenge to Stormont’s ‘designation’ system could help debate on reform

About one-fifth of the votes cast in Northern Ireland’s Assembly election today will be second class. Anyone voting for a party whose members designate as “other” – Alliance, the Greens and People Before Profit – will be seeking representatives whose votes do not count towards “cross-community support” as set out in the Belfast Agreement.

Cross-community support – the support of seperate majorities of members who designate as “unionist” or “nationalist” – is needed to exercise the Assembly’s much abused veto mechanism; the petition of concern which is meant to be restricted to significant or controversial matters. Cross-community support is also required to pass budgets, votes of confidence and to change Stormont’s rules.

The growth of Alliance has raised public awareness that leader Naomi Long would not be deputy first minister even if her party were second largest

The Belfast Agreement envisaged the designation system relaxing quickly, with regular reviews from 2002. Instead, it has become more rigid. The 2006 St Andrew’s Agreement introduced a petition of concern-type mechanism to the executive and prevented Assembly members changing designation between elections, as Alliance did in 2001 to stop unionists collapsing devolution.

Further agreements have mandated cross-community support for decisions on policing and justice and the period to form an executive.

The growth of Alliance has raised public awareness that leader Naomi Long would not be deputy first minister even if her party were second largest. This has spurred the belief that designation is broken. Alliance has always wanted the system scrapped and has campaigned for its abolition in this election, as have the Greens. Yet appointing the first and deputy first ministers is one instance where all three designations – unionist, nationalist and other – are treated equally. Long would miss out on office not because of her designation but because her designation is too small.

So the sense of a broken system stems from a deeper perception of unfairness.

To have different classes of voter is an extraordinary compromise of democracy, whether the distinction is seen to occur in the polling booth or the legislature. It was considered acceptable at the time of the Belfast Agreement due to pragmatism, exhaustion and the promise it would be transitional. More importantly, there was no conception of “other” as a third community. It was a procedural gap between two communities.

The Women’s Coalition, now defunct, epitomised this by pledging to redesignate for any Assembly vote as expedient. Even today, no unaligned party claims its supporters are not unionists or nationalists, only that the constitution is not their first priority in elections.

Sinn Féin wants the system kept as it is, which is enough to veto change through lack of cross-community support

Nevertheless, the idea of a third community in Northern Ireland has grown and has come to be associated with Stormont’s third designation. Defenders of the system are beginning to sound like defenders of the old local government franchise, overturned by the Civil Rights Association’s campaign for “one man, one vote”. Some unionists will still insist that although voting in council elections was restricted to ratepayers before 1969, this did not discriminate between Protestants and Catholics – and in theory they are correct. That hardly placated people suffering obvious discrimination in practice.

There is no easy route to abolishing or reforming designation. Sinn Féin wants the system kept as it is, which is enough to veto change through lack of cross-community support. Unionist enthusiasm for the prospect of being voted out of office cannot be taken for granted, to put it mildly. Westminster could impose reform; it has full sovereignty over Stormont, recognised in the Belfast Agreement. However, it is difficult to imagine even the present UK government removing designation without nationalist consent, nor might such a move be wise.

One avenue that could be explored is a legal challenge under the Human Rights Act, a central part of the Belfast Agreement. The European Court of Human Rights has developed potentially relevant case law on the right to free elections. While not all votes must carry equal weight, as that would rule out some forms of proportional representation, the court has declared “the vote of each elector must have the possibility of affecting the composition of the legislature”.

How properly a part of the legislature is a member whose votes do not count on budgets, significant or controversial matters, or anything everyone else can veto?

The court grants considerable leeway to states to interpret this principle, as long as it is to achieve a proportionate aim in a reasonable time. Is 23 years of designation enough?

The court grants almost no leeway where voting rights are unequal for “a group”. Is the third tribe of Northern Ireland a group? As the Belfast Agreement makes no attempt to define its three designations, beyond naming them, it could be argued they have all been groups from day one.

Strasbourg’s rulings must be taken into account by the High Court in Belfast and the UK Supreme Court. It is unlikely judges would find designation incompatible with the Human Rights Act, but almost certain they would lay down markers on the limitations of the system and the expectations of reform. This would transform debate.

The “others” have months to get an argument together, while the DUP dithers over whether Stormont returns at all.