Northern Ireland reforms ‘ethnic veto’ to help get its legislature back to work

After more than 1,000 days in abeyance, Northern Ireland’s governing institutions are working again. After talks facilitated by the governments for the Republic of Ireland and the United Kingdom, the two main parties appointed their governing representatives: First Minister Arlene Foster of the Democratic Unionist Party (DUP) and Deputy First Minister Michelle O’Neill of Sinn Féin, along with the rest of the government.

The deal that brought Sinn Féin and the DUP back to governing outlines a series of institutional reforms meant to streamline decision-making between the power-sharing partners. One of the most significant reforms is a political process called the Petition of Concern, which was a major difficulty during the talks. All parties agreed it should be reformed; none could agree on what form those changes should take.

Perhaps most important, the changes are a sign that Northern Ireland’s citizens are beginning to relinquish their commitment to sectarian barriers, as we’ll discuss below.

The Petition of Concern provides a kind of ethnic veto

Here’s the governing system set up by the Good Friday agreement. During elections, most candidates campaign on platforms that are designed to appeal to either Nationalist or Unionist voters. Unionist describes someone who favors continuing Northern Ireland’s participation in the U.K.; Nationalist refers to someone who favors leaving the U.K. and joining the Republic of Ireland. Once elected, members of the legislative assembly (MLAs) must officially designate themselves as Unionist, Nationalist, or Other. The Petition of Concern (PoC) is a legislative mechanism that requires any new legislation to be supported by a majority of both the Unionist and Nationalist MLAs to move forward.

The PoC was designed as a kind of ethnic veto, so that each community could ensure their vital interests were protected. Such vetoes are common in power-sharing arrangements and serve an important function in keeping the parties committed to governing together. Originally, any group of 30 MLAs (out of a total of 90 legislators) could present a PoC about any clause or issue at any stage in any legislative proposal, even individual clauses and amendments to bills.

Members used the Petition of Concern to block a lot of legislation

Although initially designed to protect vital interests, the PoC process soon began to be used as a blocking device against many kinds of legislation. The number of PoCs grew rapidly over time: In the first legislative period between 1998-2003, only seven PoCs were filed, whereas in the legislative period of 2011-2016, 118 PoCs were brought forward.

Our research has shown that this increase included its use on issues not necessarily related to the two communities’ cultures, including contentious votes on marriage equality and welfare reform. It was also used to thwart investigations into complaints about MLA personal conduct across a range of issues during this time.

Once a PoC has been signed by 30 MLAs, a different voting procedure comes into effect. Rather than a vote by simply majority, the bill in question will now require 40 percent of both Nationalist and Unionist present to pass (Others can sign PoCs but are not counted in PoC votes).

Three factors explain the growth in PoCs. First, PoC resolutions allowed parties to veto any issue at any time; second, the process didn’t ask one side to justify a PoC resolution or explain how the proposed legislation might infringe on a community’s rights. Finally, after 2007, one party — the DUP — elected more than 30 MLAs, meaning that it could, on its own, trigger use of the PoC process. In the first legislative period, the DUP went from co-sponsoring only one PoC resolution (with its Unionist counterparts, the Ulster Unionist Party) — to signing over 70 such motions on 21 issues in the 2011-16 period, most without the support of other parties.

By the time the Assembly collapsed in 2017, at least one political observer called the Petition of Concern “the dirtiest word in politics,” arguing that its use was anti-democratic; many others argued that it should be abolished altogether.

What changes are coming?

The deal that ended the government holdout, the “New Decade, New Approach” agreement, adjusts the PoC rules, outlining a number of small changes. While a PoC still requires 30 signatures, it will now require the support of at least two parties to enact, ensuring no single party can dominate its use (as was previously the case with the DUP).

Other changes include: It can no longer be used to stop consideration of MLA behavior; its use must be accompanied by a justifying statement; and there will be a waiting period during which the PoC’s compatibility with equality requirements — a codified legislative agreement in which an proposed law is referred to a committee that ensures the proposal is compatible with Human Rights — will be assessed.

These new changes should address the more contentious ways in which the veto has been used. Political parties will have to cooperate to enact it and to justify their use. This may keep them to their pledge to file a PoC “only in exceptional circumstances and only as a last resort.” However, there is still a looming problem. Public support is growing for the “Other” parties, which do not identify with either community. These parties have no access to the voting rules at the heart of the Petition of Concern, raising questions of equity over its use. It is seen as especially problematic when the PoC has been used to block legislation untethered to Unionist and Nationalist identities, such as the veto on marriage equality.

More change is likely

The deal between the parties suggests that the changes are only preliminary, meant to get the power-sharing government underway again — and acknowledges that most parties supported “wider reform.” These minimal changes are likely to disappoint the Other parties, including the Alliance Party, which surged in popularity in 2019 in local council, European and U.K. elections. The Alliance, together with other nonsectarian parties like the Greens and the People Before Profit party, have been skeptical of the Petition, suggesting that Other voices count for less than Unionists and Nationalists on cross-community votes.

Perhaps more important, the PoC changes signal the waning dominance of Sinn Féin and the DUP and the rise of nonaligned parties. The two big parties have suffered serious electoral losses. Their commitment to traditional dividing lines is costing them support among soft Unionists and Nationalists, who increasingly care more about the issues and less about ethnic identities. Using the PoC, a blunt instrument to protect ethnonational identities, will clearly be more controversial going forward. The “Other” parties will clearly be monitoring its use, and will publicize any potential abuse of the mechanism to further undermine the DUP and Sinn Féin.

We don’t yet know whether the changes will speed up the legislative process, or result in more selective use of the PoC to protect real minority interests. But the DUP and Sinn Féin are now under pressure — and may continue to lose seats if voters blame them for continued paralysis or overenthusiastic use of the ethnic veto.

Allison McCulloch (@allimcculloch) is an associate professor of political science at Brandon University, Canada and co-investigator on the Exclusion Amid Inclusion: Power-Sharing and Non-Dominant Minorities project, funded by the UK Economic and Social Research Council.
Drew Mikhael (@DrDrewMikhael) is a research fellow on the Exclusion Amid Inclusion: Power-Sharing and Non-Dominant Minorities project, funded by the UK Economic and Social Research Council in the Centre for the Study of Ethnic Conflict at Queen’s University Belfast.

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