Commentary on Sections Section 5: Statements Made by Prospective Members of the Assembly
31.Section 5 of the Act amends the Northern Ireland Assembly (Elections) Order 2001 (S.I. 2001/2599) (“the 2001 Order”). The 2001 Order (as amended by the Northern Ireland Assembly (Elections) (Amendment) Order 2009 (S.I. 2009/256)) provides for a system of substitutes and nominees to avoid the need for a by-election where the seat of a member of the Assembly falls vacant.
32.By Articles 6 and 6A of the 2001 Order, the Chief Electoral Officer will contact substitutes to fill the vacancies of independent candidates who gave such a list. Section 5(2) of the Act will require a person who wishes to be returned under the Article 6 procedure to make a written “statement of readiness”. The person will be required to indicate (as he was previously) that he is willing and able to be returned to the Assembly, but will now in addition be required to state both that he is aware of the provisions of the NIADA 1975 and section 36 of the 1998 Act, and that he is to the best of his knowledge and belief not disqualified for membership of the Assembly. This will ensure that a person may only consent to be returned to the Assembly under the Article 6 procedure when he has divested himself of any disqualifying office, including that of MP or TD. Through the inclusion of a statement regarding disqualification, the statement of readiness now more closely reflects the statement that is given by a candidate when he consents to nomination for election to the Assembly under Rule 8 of the Parliamentary Election Rules (themselves contained in Schedule 1 to the Representation of the People Act 1983 (the “RPA 1983”)) as modified by Schedule 1 to the 2001 Order.
33.Section 5(3)(a) of the Act similarly amends article 6B of the 2001 Order (vacancies arising during an Assembly term: members of registered parties) to provide that a member of a registered party who is nominated to fill a vacancy under the procedure in Article 6B of the 2001 Order will be required to make an equivalent “statement of readiness”. Again, this will ensure that a person may only consent to be returned to the Assembly under the Article 6B procedure when he has divested himself of any disqualifying office, including that of MP or TD.
34.Article 6B of the 2001 Order required the nominated person to respond within 7 days to the Chief Electoral Officer’s request that he was willing and able to be returned as a member of the Assembly. Section 5(3)(b) of the Act substitutes the 7 day rule with a more flexible period: the person is required to respond within “such period as the Officer considers reasonable”. This amendment is made so that a person nominated under Article 6B may have sufficient time to divest himself of any disqualifying office (including that of MP or TD) before he is required to make the statement of readiness. In so doing, it brings the period for response to the Chief Electoral Officer’s request into line with the period set for responses from substitutes under Art 6 of the 2001 Order.
35.Section 5(4) of the Act modifies the statement required from those seeking election to the Assembly, which is governed by Rule 8(3) of the Parliamentary Election Rules as modified by Schedule 1 to the 2001 Order. Previously, a person was required to state that he was not disqualified from membership of the Assembly. The statement is now modified to enable a person to indicate either that he is not disqualified, or instead that he is disqualified, but only by virtue of being an MP or TD. This amendment is necessary to allow an MP to consent to nomination for the Assembly notwithstanding new section 1(1)(za)or (db) of the NIADA 1975 introduced by section 3(1) and 4(1) of the Act. Section 5(4) of the Act also amends the statement to acknowledge the fact that a person may be disqualified under section 36 of the 1998 Act as well as under NIADA 1975.