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2020

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Why Westminster Should Legislate for NI on Social Issues



In the continued absence of a devolved Assembly and Executive in Northern Ireland, the focus has shifted to Westminster in order to deal with Northern Irish matters. While these will mostly be economic decisions, such as the introduction of a budget, the contentious issues which are perpetuating the current Stormont deadlock are social ones, such as same-sex marriage, abortion and an Irish language act. MPs are reluctant to legislate on what are currently devolved matters, however there is a clear case for legislative action from Westminster on these three issues, which would help to ensure the restoration of the political institutions.

Same-sex marriage is a particularly important social issue which needs to be resolved. The Assembly has debated marriage equality on five occasions, and after four votes against it received the approval of most MLAs in November 2015, but was vetoed by the DUP through a petition of concern. Two Assembly elections since then have substantially increased the percentage of MLAs in favour of equal marriage. Love Equality estimates that 56 MLAs would vote for marriage equality, more than 60%. However, the threat of a petition of concern remains, and although the DUP no longer have the 30 MLAs necessary to trigger a petition, some MLAs from other parties, such as the TUV leader Jim Allister and the UUP’s Roy Beggs, have indicated they could sign a DUP petition in order to reach 30 MLAs.

The failure of Stormont to legislate for equal marriage (in contrast to the rest of the UK and Ireland) has prompted discussion on the matter at Westminster. Recently Labour MP Conor McGinn, who is from Northern Ireland, introduced the Marriage (Same Sex Couples) (Northern Ireland) Bill. As a private members’ bill, it has a minimal chance of succeeding, and hitherto the Government has ignored calls to act, arguing it is a devolved matter. It is likely that Theresa May, who personally supports marriage equality, is unwilling to risk her agreement with the DUP, hence the reason for her inaction. But legislating for same-sex marriage would not undermine devolution, because the Assembly has already given its approval to it in 2015, and in a future vote it would do so again more decisively. Therefore, Parliament should extend marriage rights currently enjoyed by LGBT couples in Great Britain to Northern Ireland, and end the dichotomy which exists between Northern Ireland and the rest of these islands.

Another contentious social issue is abortion. The near-total ban on abortion in Northern Ireland is a result of the Offences Against the Persons Act, which was passed in 1861. A 157-year-old law which carries a sentence of up to life imprisonment. This Act applies across the UK, but the Abortion Act 1967 provides a number of defences which are not available here. With the Republic of Ireland recently amending their Constitution to remove the constitutional ban on abortion, Northern Ireland will be the only part of these islands with extremely restrictive abortion laws.

The Assembly debated abortion in February 2016 and rejected any changes to the law. It is difficult to tell whether any reforms would pass today, because many parties have abortion as an issue of personal conscience rather than party policy. As with equal marriage, the debate has moved to Westminster, where a clear majority of MPs across all parties support extending abortion rights to Northern Ireland. But as with marriage equality, the Government refuses to act, because of their agreement with the DUP. Although abortion is a devolved matter, the UK Government has an obligation to ensure Northern Ireland meets minimum human rights standards. The High Court of Northern Ireland and UK Supreme Court have both held that the current law on abortion violates Article 8 of the European Convention on Human Rights (the right to private and family life). On this basis, Parliament should legislate to resolve this incompatibility and ensure that Northern Ireland meets its human rights obligations.

The other notable issue to consider is an Irish language act. This has become the most controversial subject in negotiations, with Sinn Féin making it their key red-line and the DUP reiterating their opposition. Attempts to create a compromise, such as an act incorporating Irish, Ulster Scots and other minority languages, have previously been unsuccessful. There are a majority of MLAs who would support an act in principle (50 out of 90), but obviously their support would depend on the legislation in question and what it contained.

MPs have not discussed legislating for an Irish language act, as it is not seen elsewhere in the UK as having the same significance as abortion or same-sex marriage. However, the UK Government is obligated to pass such an act, having agreed to do so in the St. Andrew’s Agreement in 2006. This was based on the experience of language protections in Ireland and Wales. This is a point which is often forgotten in the discussion around the Irish language, and if Westminster legislated in accordance with its obligations in St. Andrew’s, it would remove Sinn Féin’s main red-line and permit the restoration of the Assembly and Executive.

Some have argued that a referendum could be held on each of these three issues, in order to determine public opinion in Northern Ireland and legitimise Westminster’s ability to legislate. I would be opposed to this, for several reasons. In the UK, referenda are not legally binding, in contrast to Ireland where they are required to amend the Constitution. Therefore, any referendum result could be ignored. I would also be uncomfortable with putting individual rights, such as abortion and marriage equality, to a popular vote when such a vote is not required. Another problem with a referendum would be the exact question; to take abortion as an example, what would the referendum choice be? It could be on extending the 1967 Abortion Act, on decriminalisation up to twelve weeks as in the South, or only in exceptional cases like fatal foetal abnormality or sexual crimes. For these reasons, I do not believe that MPs should abdicate their responsibilities to Northern Ireland by putting these issues to a referendum.

Currently progress on these issues appears unlikely. While they have the support of many backbench MPs across the political spectrum, the Government remains unwilling to act on devolved matters, presumably due to fears that it would undermine their relationship with the DUP. But there is a strong case for Parliament legislating on these issues. The Assembly has already approved same-sex marriage, it only failed on a technicality. The Supreme Court has held that Northern Ireland’s abortion laws constitute a violation of international human rights standards. An Irish language act was agreed by the UK Government in the St. Andrew’s Agreement. If the Government is serious about restoring devolution, and if it wants Northern Irish citizens to enjoy the same rights as people in the rest of the UK and Ireland, then it must legislate on these three issues.

Jack Armstrong is an a 22-year-old Alliance Party activist and a postgraduate law student at Trinity College Dublin. He previously studied at Queen's University Belfast. His interests include NI politics, constitutional law and human rights. He has also written several articles for Progressive Politics NI.

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