08 July 2019

MPs in Westminster face a complicated choice between respecting Northern Ireland’s devolved settlement and legislating on UK-wide human rights issues, argues Jess Sargeant.

The continuing lack of progress in the talks to restore power-sharing in Northern Ireland has forced the UK Government to come back to Parliament again with another Northern Ireland (Executive Formation) Bill. This is required to extend the time allowed for the Northern Ireland parties to try and form a government. A similar bill, which passed last year, will expire in August and the new legislation needs to pass before the House rises on 25 July to prevent the Secretary of State for Northern Ireland being forced to call an election.

Northern Ireland legislation rarely gets much attention, but this time the Government may have a fight on its hands. MPs are planning to use the bill as a vehicle to address human rights issues in Northern Ireland, tabling amendments on abortion and same-sex marriage.

The bill could also cause a further, and entirely separate, headache for the Government: a group of MPs are looking to table an amendment – which would require the Government to hold a debate in October on the progress made towards forming an Executive in Nothern Ireland – to prevent a PM from proroguing Parliament to ensure that the UK leaves the EU on 31 October without a deal.

But it is the potential battle over human rights which will highlight the complex relationship between Westminster MPs and Stormont, the cultural differences between Northern Ireland and the rest of the UK, and the complicated challenges posed by the ongoing suspension of the Northern Irish Assembly. It could also pose problems for the Government, which risks defeat on a bill it can’t put off and on an issue that will likely provoke a strong reaction from its confidence and supply partner, the Democratic Unionist Party (DUP).

The amendments raise questions about devolution and competencies

MPs have tabled a range of amendments to the bill, with one requiring the Secretary of State to extend same-sex marriage to Northern Ireland and to "provide services to meet the reproductive rights of women in Northern Ireland".

Historically, abortion and same sex marriage have been considered devolved matters. The 1967 Abortion Act has never applied in Northern Ireland and the issues of equal marriage and abortion have previously been dealt with by the Northern Ireland Assembly. As direct rule has not been imposed, passing the amendments could be seen as undermining the devolution settlement.

However, the picture is more complicated. Under the 1998 Northern Ireland Act, the UK Government is responsible for observing and implementing the European Convention on Human Rights.  And while a recent appeal brought by the Northern Ireland Human Rights Commission (NIHRC) was rejected by the UK Supreme Court, a majority of judges said that Northern Ireland’s abortion law is not compatible with Article 8 of the convention in cases of rape, incest and fatal foetal abnormality. It is inevitable that new cases will be brought before the court, and the UK Government may be compelled to act.

The absence of government in Northern Ireland creates additional complexities

Issues of competence aside, MPs have argued that in the absence of the institutions in Stormont, it is the UK Parliament’s duty to take action. If the Northern Ireland Assembly was sitting, these issues might be resolved at home. In 2015, the majority of Members of the Legislative Assembly voted in favour of same sex marriage, but the legislation was blocked by a ‘petition of concern’ – whereby 30 members of the Assembly can require a cross-community vote on an issue – triggered by the DUP. Since then, a change in the size of the Assembly has meant that the DUP no longer has the numbers to trigger a petition of concern alone, and the Ulster Unionist Party has said it would not block the legislation again.

Agreement on abortion law reform looks less likely, but if the Assembly were up and running, then at least the lines of accountability and appropriate targets of campaigning and lobbying could be clarified.

However, it looks unlikely that the Northern Ireland Executive will be reestablished any time soon. In the meantime, Westminster MPs face a choice between respecting the devolution settlement and taking action to extend the same rights to citizens in one part of the UK which the rest of its population already enjoy.

If the amendments are selected, this could create problems for the Government

The Government’s position to date has been that these issues come under the competence of the devolved government in Northern Ireland and are not a matter for Westminster; this has been echoed by both leadership candidates. But there is dissent within the Cabinet; last week, the Women and Equalities Minister Penny Mordaunt called for the UK Government to change Northern Ireland abortion law.

Karen Bradley, the Secretary of State, has said that if there was to be a vote on extending equal marriage to Northern Ireland then Conservative MPs would be given a free vote. This increases the possibility that it will pass, a move that will upset the DUP and potentially put their confidence and supply agreement with the Government at risk.

Recently, in the face of difficult amendments to other bills, the Government has shelved the legislation. But with legislation needed before recess to avoid an Assembly election, the Government can’t put it off forever.