Who picks co-opted MLAs?
The co-option of Andrew McMurray MLA following the resignation of former Alliance Party MLA Patrick Brown marks the fourth co-option of the seventh Assembly term (May 2022 to date), but what is the process behind co-option in the Northern Ireland Assembly?
The Assembly is unusual compared to other legislatures in that, when a vacancy arises due to the resignation or death of an incumbent MLA, for instance, there is no byelection to fill in the vacancy, as takes place in the House of Commons or Dáil Éireann.
Co-options take place in the European Parliament, but the Assembly also differs from those in that there is a ‘reserve list’ of MEPs, in the event of a resignation from the European Parliament, meaning that there is, in essence a mandate (albeit an indirect one) for the representative.
In the Assembly, however, there is no such mechanism, and when a vacancy arises, the decision rests with the relevant party alone.
In the case of McMurray, his place in the Assembly was awarded by his party which, it is understood, held an open selection convention to decide who would become the party’s new MLA in South Down. The party was required to ensure that its nominating officer submitted its nomination for the vacancy to the Chief Electoral Officer within seven days of the vacancy arising.
The co-option process creates one fundamental question for democracy in Northern Ireland: Does the electorate vote for the party, or for the individual?
While this is a topic of academic debate, the answer, at least as far as the co-option process is concerned, is simple. Seats in the legislature belong to a given party rather than an individual candidate.
The legislation which pertains to co-option is Section 6B of the Northern Ireland Assembly (Elections) (Amendment) Order 2009.
The legislation provides that if an MLA dies while holding office or resigns from the Assembly, the party to which that elected member belonged nominates their replacement, even in the event that the member no longer belongs to the party with which they were elected.
Parties have different internal processes for deciding who can be co-opted, with the Alliance Party and Sinn Féin normally using selection processes. The DUP notably nominated Emma Little-Pengelly MLA to replace Jeffrey Donaldson as MLA in Lagan Valley after a decision taken at party leadership level, rather than a selection convention.
The legislation further sets out that if a prospective member does not formally accept the nomination from their party, the party must then nominate a new candidate.
Strategic ambiguity
List systems are commonplace across democracies, including in some countries in the European Parliament. For instance, before Brexit, British political parties would include a list system of prospective replacement for their elected MEPs, who would assume the role of MEP in the event that their party colleague resigned or died while holding office.
A list system was mooted and existed at the time of the first Assembly election in 1998, and under the original system, the onus was placed on a party candidate to nominate their list. According to a source close to the establishment of the legislature, one of the reasons for the decline of this system was that a particular party’s candidate died shortly after assuming office, and their list was entirely comprised of family members of the deceased due to the party leadership not taking an interest in the list system.
Furthermore, the prospect of byelections is viewed by smaller parties as undermining proportional representation, as it could logically result in a small party losing all of its Assembly representation.
One further caveat pertains to the nomination of a co-optee who is not a member of any party. Although the legislation does not indirectly account for the co-option of independent MLAs, there is a precedent for this, as David McClarty died in office when he was an independent MLA in East Londonderry, and before his death had stated that he wished for Claire Sugden to take his seat.
Although there is no formal process as the legislation pertains to political parties, a source told agendaNi that there is a de facto list system applied for small parties and independents, whereby the MLA must contact the Chief Electoral Officer in a process which is formally overseen by the Secretary of State.
Ultimately, although there are some legal frameworks, the co-option process is one of strategic ambiguity. Though political parties are all understood to be satisfied by the level of control they have over the Assembly with the co-option process.
If the question is ‘who nominates a co-optee?’ The answer is simple; a party’s nominating officer. If the MLA is an independent or a member of a single-MLA party, then the incumbent MLA collaborates with the Chief Electoral Officer to decide a replacement.
