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Northern Ireland constitutional crisis with precedents from past and fresh uncertainties

By Austen Morgan

The sudden resignation of Martin McGuinness - obviously a very sick man - as Deputy First Minister is, as befits a republican bound by a code of omerta, also a clear political act. It has little to do with good or bad governance. McGuinness brings down First Minister Arlene Foster (and arguably strengthens the ageing Gerry Adams as president of Sinn Fein).

This is a major constitutional crisis, with lingering precedents from the past (in 1999 and 2001), but also with fresh uncertainties.

Will we have a new First Minister and Deputy First Minister? Or will there be an Assembly election? And, if it is the latter, what will happen then?

First, on July 1, 1998, in the new Northern Ireland Assembly - 'bliss was it in that dawn to be alive' - David Trimble was elected (in accord with the Belfast Agreement) First Minister designate along with Seamus Mallon as Deputy First Minister designate.

Before devolution, these centrist leaders fell out over the formation of the Executive. Mr Mallon resigned on July 15, 1999. Mr Trimble did not. No one in the transitional Assembly doubted what had happened that day.

But this did not accord with NIO plans. On November 29, 1999, the initial presiding officer, Lord Alderdice, told elected Members that "the validity of Mr Mallon's resignation (was) a matter of law and not of common sense". The transitional Assembly voted by 71-28 to treat Mr Mallon as still the Deputy First Minister designate!

Second, Trimble/Mallon were elected jointly on December 2, 1999, as simply First Minister and Deputy First Minister. This was done under section 16 of the Northern Ireland Act (NIA) 1998. They had the support of majorities of the designated unionists and nationalists.

If one was to resign, then, according to the statute, the other could continue to exercise the functions of his office, but only for six weeks - when there had to be a new First Minister/Deputy First Minister election.

Mr Trimble resigned on July 1, 2001 (over decommissioning). Mr Mallon's exercise of functions was interrupted by UK suspension of the Assembly.

Trimble/Durkan were elected on November 2, 2001, but without the two majorities. This was cured by the Alliance Party designating as unionists (rather than other), Trimble/Durkan being elected formally four days later. But this was two days after the relevant six-week period.

Peter Robinson challenged the election in the High Court unsuccessfully, John Larkin QC - now the Attorney General - acquiring his reputation as his counsel. The then DUP deputy leader lost eventually in the House of Lords, in July 2002, their lordships holding, by three to two, that six weeks meant whatever was politically expedient.

Much later, after the 2006 St Andrews Agreement, Mr Robinson secured the repeal of section 16, and its replacement by sections 16A to 16C, which is the applicable law today. Section 16A provided for the nominating officer of the DUP to essentially appoint the First Minister, and the Sinn Fein nominating officer to appoint the Deputy First Minister. Ian Paisley did not have to vote for Martin McGuinness.

Section 16B permits Mrs Foster to exercise the First Minister's functions for seven days. The nominating officers are then deployed for as many times as it takes to fill both offices. Sinn Fein has said it will not play ball.

Mrs Foster - answering my first question above - will be out of a job next Monday. Then (the second question), James Brokenshire will, under section 32 of the NIA 1998, call an extraordinary Assembly election; by order in council, the Assembly will be dissolved and a date for the poll will be directed.

The third question - what happens then? - takes me out of the constitution.

The Renewable Heat Incentive will be an election issue. But will Sinn Fein, house-trained by devolution over 10 years, wreck the institutions? I think not.

Dr Austen Morgan is a barrister in London and Belfast and the author of Tony Blair And The IRA

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