Social reform – on abortion and same sex marriage – is not only a bone of contention in the Stormont talks. It’s creating a clash with MPs across party at Westminster at a precarious time for the future of both legislatures.
The Supreme Court’s rejection of the appeal against the decision of the Health Secretary for England Jeremy Hunt not to allow Northern Ireland women to have free abortions on the NHS in England may now become entangled in Westminster’s complicated political arithmetic. First, let’s recall the decision.
Northern Ireland’s judge on the court Lord Kerr was in the 5 to 3 minority
Lord Kerr concludes that it was the duty of the Secretary of State (and is the duty of the groups) to provide for a UK citizen present but not usually resident in England the same medical services, free of charge, under the NHS as he provided (and as they provide) for those usually resident in England.
For the majority Lord Wilson upheld Hunt’s view that
the policy of the Government … that, in general, the NHS should not fund services for residents of Northern Ireland which the Northern Ireland Assembly has deliberately decided not to legislate to provide, and which would be unlawful if provided in Northern Ireland.
The aspect of the ruling that surprised me as a non-lawyer was that the English Health Department had any discretion on the matter. I had assumed that if the woman had a Northern Ireland address she was not entitled to a termination free of charge in GB. Full stop. There may be more leeways in other matters than is generally understood.
Now the Guardian reports
MPs from all the major parties will argue that abortion should be provided on the NHS in England for Northern Irish women, in an amendment to the Queen’s speech which supporters said would act as a warning to Downing Street about the implications of a pact with the Democratic Unionist party.
The amendment, coordinated by the Labour MP Stella Creasy with the support of the Conservative MP Sir Peter Bottomley, ( a former NIO minister) asks the government to consider legislating so women from Northern Ireland have NHS abortion provision when they travel to England to terminate a pregnancy.
The amendment is unlikely to gain enough traction to pass through parliament but MPs hope it will serve to galvanise parliamentarians concerned about the impact of a deal with the DUP on women’s rights.
The amendment is mainly a gesture. Jeremy Hunt even less likely to change his mind when the votes of DUP MPs are needed.
The case is also an example of what devolution is about. Big subjects are are reserved to Westminster or excepted from devolution on the principle that everything should be devolved that otherwise can be. But the devolved powers are far from uniform and reflect the different characters of Scotland, Wales and Northern Ireland. Where they are devolved as with social matters such as abortion and gay sex, different results may apply.
Another vivid example of different outcomes in different UK jurisdictions – as well as Arlene Foster’s flawed memory – is same sex marriage, blocked by the DUP in the Assembly and the subject of a failed request by the DUP to the SNP government to bar gay Northern Ireland couples from marriage in Scotland. It seems that a gay Northern Ireland couple married in Scotland are not married at home. Mrs Foster was entitled to point out the anomaly but she would have done far better to have done it openly. She has emerged looking shifty again at the worst possible time.
The letter, which was published today following a Freedom of Information (FOI) request, was a follow-up to a letter from her predecessor as finance minister, the DUP’s Simon Hamilton. Mr Hamilton’s letter has also been made public.
The letters did not cite moral or political objections to the proposed legislation in Scotland, but highlighted potential legal issues.
They said complications could arise from couples having “dual status”, where they are recognised as civil partners in Northern Ireland but as married in Scotland.
Mrs Foster wrote: “I’m sure neither of us would wish to place same sex couple in an uncertain legal position, which may be difficult and expensive to resolve.”
Different parts of the UK are fully entitled to take different decisions on matters which are devolved. But if local decisions create a conflict over jurisdiction with Westminster it may be up to the Supreme Court to rule on more of them.
That point could be reached over ratifying Brexit. But there are other matters in the pipeline that could cause big trouble.
Could Westminster legislate over the heads of the Assembly – whether legally suspended or not – for a statute of limitations for actions committed by the Army and the RUC during the Troubles ( anathema to nationalists)?
Or for an Irish Language Act provided for in the St Andrews Agreement and a Northern Ireland Bill of Rights, as in the GFA (demanded by Sinn Fein?).
On the other hand it might surprise a lot of MPs at Westminster to learn that they haven’t the power to pass an Indemnity Act for soldiers who committed alleged wrongdoing in Northern Ireland, as Justice powers are devolved to the Assembly, the Army not excepted, and is therefore subject to a Sinn Fein veto. Which I think is the case.
These are current matters which may complicate prospects for the return to Stormont, even though it seems obvious they’d be better dealt with the Assembly in action than not.