Commentary on Sections Section 3: Mps to Be Disqualified for Membership of the Assembly
21.Section 1 of the Northern Ireland Assembly Disqualification Act 1975 (“NIADA 1975”) provides that a person is disqualified for membership of the Assembly who for the time being holds the offices, memberships and employments described in section 1(1). Section 3(1) of the Act inserts new section 1(1)(za) into NIADA 1975, adding membership of the House of Commons to the list. The effect is that MPs are disqualified for membership of the Assembly, subject to the exception created in section 3(2).
22.Section 3(2) of the Act provides limited exceptions to the disqualification of MPs for membership of the Assembly. It ensures that a person who is already an MP may stand for nomination to the Assembly, and may then choose which membership to pursue if subsequently returned to the Assembly. It equally ensures that a person may stand for election both to the Assembly and to the House of Commons, and then decide which membership to pursue if successfully returned to both.
23.Section 3(2) of the Act accordingly inserts into the NIADA 1975 a new section 1A. Subsection (1) of that new section provides that a member of the House of Commons is not disqualified for membership of the Assembly for a period of 8 days following his return to the Assembly. This short period of grace is given so that the MP, should he wish to do so, may divest himself of his seat in the Commons in order to pursue membership of the Assembly. Alternatively, the MP may use the grace period to resign his membership as an MLA. If he does nothing, the MP will automatically be disqualified for membership of the Assembly upon the expiry of the 8 day period.
24.Subsections (2) to (4) of new section 1A are aimed at a person who is elected both as an MP and an MLA following combined Westminster and Assembly elections. These subsections ensure that such a person has the benefit of the full 8 day period to decide which membership to pursue and to achieve any necessary resignation. In their absence, it would be possible for such a person to be returned as a MLA first, and as an MP sometime after, thus depriving him (in part or entirely) of the benefit of the period under subsection (1).
25.Note that the period of grace under subsections (2) to (4) is only given to a person who is a “candidate for election to the House of Commons” on being returned as a MLA. No period of grace is otherwise given to a person who is already an MLA who is then elected to the House of Commons. Such a person will, on successful return to Westminster, automatically be disqualified for membership of the Assembly under section 1(1)(za) of NIADA 1975.
26.It will be noted that the new section 1A(1) and (3) of NIADA 1975 will only apply to a person who is returned as a member of the Assembly following an election. This means that a person who is returned to fill a vacancy in the Assembly’s membership via methods prescribed by the Secretary of State under section 35 of the Northern Ireland Act 1998 (“the 1998 Act”), for example by substitution, cannot take the benefit of the 8 day period unless that vacancy was filled by the method of election. This is because such a person will have sufficient time under the amended provisions in Articles 6-6B of the Northern Ireland Assembly (Elections) Order 2001 (S.I. 2001/2599) to resign their seat in Westminster before returning a statement of readiness (see paragraphs 27-30 below).
27.Section 37 of the 1998 Act makes provision for the effects of disqualification for membership of the Assembly and gives the Assembly certain powers to provide for relief from disqualification. Section 3(3) of the Act makes an amendment to section 37(1) of the 1998 Act to make clearer that the provisions about the effects of disqualification and relief apply where a person has been disqualified under the NIADA 1975 under provision inserted into that Act after the 1998 Act was passed.
28.Section 3(4) of the Act makes an amendment to section 47(4) of the 1998 Act. Section 47(4) requires the Assembly to make provision in respect of salaries payable to Assembly members who are also members of the House of Commons. This provision is rendered unnecessary by section 3 of the Act, as Assembly members are now effectively disqualified from holding a dual mandate in the House of Commons.