Do we want Westminster to impose uniform UK standards? On abortion and same sex marriage? How about an indemnity for soldiers?

 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.

 

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  • Karl

    On the same basis, we shouldnt allow Saudi women to drive in Ireland because they are not permitted to do so in their own country. Should we also crack down on Chechen homosexuals when they holiday here?
    Utterly bizarre.

  • Am Ghobsmacht

    And let us beat with a stick any Singaporean found chewing bubble gum!

  • 1729torus

    An amnesty for British soldiers would be Allah’s gift to ISIS – the propaganda writes itself.

  • chrisjones2

    In Westminster Abortion has always been a vote on conscience so I dont agree that the amendment has little chance I think it will pass. They should also demand that the costs are recovered off the NI Block grant including the travel costs of the women

    They should also take back from the NI Government competence over marriage legislation as its a fundamental human rights issue that the Assembly has been incapable of dealing with

  • the Moor

    Remarkably, I agree with that and the rationale provided.

  • the Moor

    The moral and social fundamentalists who dominate the political scene in NI will no doubt want to have it both ways, protesting exemption on women’s reproductive rights and LGBT equality on grounds of a cross-sectarian hostility to the settled secular and pluralist values of the UK and EU. Under either of these flags, in the last instance sovereignty requires conformity to jurisdictional norms which, in both instances (unless or until as a dimension of brexit the UK opts out), have embedded within them human rights legislation, which because universal in scope prohibits exception on grounds of religious or moral objection. After all the years of quietism on the part of Labour women, Stella Creasy is to be applauded for igniting a campaign to ensure parity of treatment for women from NI who as UK citizens share the same entitlements as all other citizens of the UK. Ditto EU suzerainty in future as the Irish government is finding. NIcola Sturgeon’s intervention in respect of marriage ceremonies in Scotland is a welcome intervention as well. My hope and expectation is that the reactionary social values of the DUP, UUP, SDLP, SF and others on the island will be caught in a socially progressive pincer that’ll finally force Ireland to awaken in the modern world.

  • aquifer

    Stormont Big House Unionists used to get progressive British social policy like the NHS and social security ‘for free’, a useful insurance policy against local proletarian uprisings. However, with increased mobility and an Irish BR-exit sea and air border, more people will notice that the “Union” is becoming a dead letter.

    https://en.oxforddictionaries.com/definition/dead_letter

  • Granni Trixie

    If throwing coke cans in the ground?

  • Am Ghobsmacht

    BEAT!!!

  • Patrick Mac

    “same sex marriage” – a non issue, if ever there was one.

  • Oggins

    Chris, very rarely do we agree, well said.

  • Oggins

    Many years ago in Singapore me and a group of backpackers were finishing off a sing song, and a few cold beers outside the hostel. The local police drove by and asked us nicely to go to bed. Everyone had heard of the infamous laws,we didn’t want to risk it. Never seen so many people scarping and saying sorry in many tongues.

  • Zorin001

    Certainly in the rest of the UK it is.

  • chrisjones2

    Yeah …like the OTR letters and Royal Prerogatives …those those were written by SF and signed off by the British Ministers

  • RitaJoseph

    It is an uncomfortable truth of the human condition that when we harm another human being we seek to deny that any harm was done. History has recorded so many, many lethal violations of the human rights of defenseless human beings, and the vapid narcissistic excuses of the perpetrators, as they themselves become more and more brutalized while always maintaining that there has been no harm done to any human being who matters.

    Ultrasound technology, together with biology, embryology, fetal surgery, and examination of the human remains of an abortion, all tell us that the victim targeted for abortion is a human being, belonging to the human family, a human being who can be identified as a daughter or son, a ‘who’ not a generic ‘thing’.

    True justice requires that elective abortions be recognized and treated not as harmless, idiosyncratic, personal ‘choices’ but as abusive practices, as human rights violations perpetrated by abortionists and involving the complicity of politicians, judges and others.

  • Slater

    I think the decision was 3 to 2. Neither view is very convincing in legal terms. Despite Lord Wilson abortion is legal in NI in certain circumstances while it is not the duty of the courts in devolution terms to order one part of the UK to bend the knee to another in their own jurisdiction.
    The key to a free termination in GB is the address of the GP. It is time for health authorities in Britain simply to bill the NI NHS for any termination carried out on a NI GP’s patient just as they would for other surgery.
    Leave it to the NI Health Trusts then to decide to pay or not.

  • chrisjones2

    Sorry for the diversion but i had to

    See Arlene as the Black Knight

  • Christopher Mc Camley

    The correct analogy would be “Saudi women aren’t allowed to drive so when they come to Ireland we should give them free cars and pay for their petrol and insurance”.

  • Croiteir

    Why cant we have one centralised law making body to cover everywhere. That will end the problem surely?