Northern Ireland as a place apart over abortion rights has exposed many English MPs to the complexities of devolution for the first time over something they care about deeply, so much so that they seemed at first to dismiss them altogether. There is a precedent of a kind. On Brexit Westminster is ignoring the SNP government’s refusal to assent to the terms of EU withdrawal on the grounds that this is a reserved matter for Westminster.
Although abortion rights are not reserved, should framing them as a basic human right for all UK women become a sufficiently compelling reason to override the devolved powers of the Northern Ireland Assembly, as Shami Chakrabarti seems to be arguing? Or at the very least, because the Assembly is in indefinite suspension with no immediate hope of it lifting, should Westminster step in and fill the breach? Although Westminster sovereignty technically remains this would be a whole new constitutional doctrine that would take more than a few birth cycles to resolve.
The Westminster route
The answer is almost certainly no. Theresa May has refused government backing for such a move, insisting it remains a devolved matter. Quite apart for her need for DUP support, “letting parliament decide” in a free vote could create a precedent for the EU withdrawal Bill which she will not contemplate. Moreover, despite the winning support of 180 Labour MPs, the lead campaigner Stella Creasy now fears that tacking an NI abortion reform amendment on to the Domestic Violence Bill could be rejected by the Speaker.
There is a precedent for failure. In spite of enjoying equally enthusiastic support on the floor of the House Conor McGinn’s private member’s Bill to permit same sex marriage for the province was easily blocked a fortnight ago. If a Bill on same sex marriage failed, why should a Bill on abortion succeed?
There is the additional complication, so far unremarked, that any UK legislation affecting rights and equality in Northern Ireland is deemed to require the consent of the Irish Government under the terms of the Good Friday Agreement. The argument also has force that these reforms would not have democratic legitimacy in Northern Ireland.
The Assembly route
Could abortion reform become the catalyst for bringing the Assembly out of limbo?. The obvious strategy is for pro-abortion Sinn Fein to end their boycott of Stormont on condition that the DUP would allow a free vote in the Assembly on abortion reform and same sex marriage without resorting to the overused blocking mechanism of a petition of concern.This would be a more substantial issue, much closer to real life than the “respect” issues in their case for withdrawal from Stormont.
Crucial to forming opinion will be the imminent ruling by the Supreme Court to a challenge brought by the NI Human Rights Commission to extend abortion rights from the existing threat to life of the woman, to foetal abnormality and cases of rape and incest.
Would the Assembly pass such a measure? If MLAs refused to comply with a Supreme Court ruling a constitutional clash would occur that would surely end up with Westminster. But the Assembly’s reaction remains uncertain. A simple majority for limited reform is just possible despite DUP opposition. But it has yet to crystallise and is unlikely to do so without considerable debate.
A Northern Ireland referendum?
The option of holding a referendum has its attractions, with or without the return of the Assembly. Lifting the pressure to make a substantive decision might even appeal to the DUP. But before that point is reached, could a referendum question be framed, based on the NIHRC Supreme Court appeal if upheld, which would not only win DUP acceptance, but the reforming mainstream’s?
The government’s dependence means DUP permission would be required for Westminster to legislate for a referendum . The negotiations would be tense. All the elements required in a referendum would have to be negotiated with a variety of stakeholders including not only the DUP but the Irish government. The length of the consultation period and the campaign, the wording of the question, the scope of reform, recognition of campaigning lobbies and expenditure limits – all these would be extremely contentious . Unionists would try to restrict groups from the Republic – (very difficult as Sinn Fein is an all-Ireland party and the Article 8 referendum would be regarded as a dress rehearsal). Sinn Fein might oppose British -based anti-abortion groups. The Irish precedent of banning foreign lobbyists might be followed.
As regards conducting a fair and coherent campaign, the Irish example offers encouragement. The Supreme Court judgment would provide a benchmark. Comparators are the 1967 GB Abortion Act and the Republic’s Act consequent on the referendum result .
The precedent of the Irish Citizen’s Assembly in deliberating abortion reform would be a highly appropriate one to follow. Northern Ireland is small enough to prevent it becoming unwieldy. And there are circumstances peculiar to Northern Ireland. On this as in so many issues, the cross community political system is failing to deliver much that enjoys clear cross community support. A role for civil society could help break the deadlock .
But as so often, there is a potential problem. If local referendums were to be held on abortion and same sex marriage, why not referendums on all the subjects in deadlock – an Irish Language Act, an NI Bill of Rights, dealing with the past? For sceptics this would mean Westminster in close cooperation with Dublin risking the marginalisation of the Assembly and a line would have to be drawn. For others anything to ease the deadlock between the main parties would allow the Assembly to move on.
Just now, even the faint outlines of a solution have yet to emerge. But already, it seems apparent that most of it will be rooted in Northern Ireland – but with more than a little help from its friends.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London