Jeffrey Dudgeon is a former UUP councillor, author of Roger Casement: The Black Diaries, and the activist whose case in the European Court of Human Rights changed the law on homosexuality in Northern Ireland. A version of this article first appeared in Perspectives Magazine edited by Jonathan Hodge.
Monday 21 October 2019 was a pivotal date in the politics of Northern Ireland. On that day, because the Stormont Assembly and Executive were still not up and running after a three-year absence, abortion was decriminalised, and gay marriage legalised.
The first reform came 52 years after England, the second after only six years. They became required by the 2019 Northern Ireland Executive Formation Act.
Indeed abortion law has now swept way beyond the 1967 GB Act. A last-minute attempt by the DUP and the Attorney General, John Larkin, to get the 2019 requirement repealed, failed because the Assembly Speaker, the DUP’s Robin Newton, would not allow a Bill to be tabled without an Executive. No Bercow he.
Equal marriage will be in place by January 2020 once the regulations are written, while abortion is essentially unregulated until March 2020. Between times, there will be rows and bitter arguments over the practical form these two changes will take. Marriage, which will also involve legalising civil partnerships between opposite sex couples, is straightforward by comparison to abortion. The wrinkles are in the area of whether to permitting religious ceremonies, and the limits to conversions, that is changing a civil partnership to a marriage.
Abortion regulation will involve trench warfare. The Republic, where next to nobody spoke in favour of any such law reform until the last five years, is now behind Northern Ireland, despite its 2018 referendum and later new law. Sinn Fein has carefully modulated its support to no more than non-surgical terminations before twelve weeks and in certain other extreme circumstances. The SDLP is pro-life and pro-choice while the UUP sticks to a free vote which enabled me to speak in favour of decriminalisation last year when on Belfast City Council.
In 1976 I brought a successful case to the European Court of Human Rights on decriminalising male homosexuality. In 1981, after five years of legal argument and Northern Ireland Office (NIO) procrastination, Strasbourg required the United Kingdom to legalise sex between gay men over the age of 21. The DUP’s Save Ulster From Sodomy campaign had failed. There had thus been a gap of 15 years between the 1967 England and Wales Sexual Offences Act and the reforming Northern Ireland Order in Council of 1982.
That occurred in the era of direct rule which lasted for a quarter of a century from 1974 to 1998, a period of progress if not peace. Now we are permitted direct rule spasmodically and not under that name. Even the courts in the form of the recent Keegan incinerator judgement insist civil servants cannot advance in any direction until our politicians agree to re-form an Executive.
These two reforms suddenly happened because in July 2019 Speaker Bercow, breaking decades of precedent, allowed extraneous amendments to be tabled to the government’s Northern Ireland Executive Formation Bill. This was a now traditional law permitting the NIO to postpone an Assembly election and to pay Civil Service bills while also avoiding direct rule which is prohibited by Dublin.
Other matters like libel law reform came close to being tacked on to the Bill and may yet when another such legislative vehicle approaches. Prime Minister Theresa May was at the same time covertly assisting the equal marriage amending process by literally providing her office to gay Tory peers. She also permitted, indeed insisted on Northern Ireland being included in the government’s Domestic Abuse Bill. This was stealth direct rule, bringing about changes the Assembly never could or would.
The gay marriage and abortion campaigns have however, under the equality rubric, become sticks to beat Unionism with, and most successfully. These are test issues for modernity and for admission to the human race, especially to the young. Trans support and gay pride participation are now de rigueur. Any hint of deviation is treated with rage on social media. That the earliest pioneer for gay rights in Northern Ireland was a Belfast Unionist MP, Montgomery Hyde, who at Westminster in the 1950s, almost uniquely, argued for decriminalisation is not just forgotten but resented. Similarly, it has hardly been noticed that the DUP fell almost silent on the marriage issue in the three months prior to October.
Ulster was lost to sodomy in 1982 (my doing). Gay Pride and Trans flags fly over City Hall where once the Union Jack held sway. Identitarianism is not just the new religion adopted by the Alliance Party and the surging Greens but is displaying the hallmarks of the old majoritarianism. Alongside it, ironically, is a devotion to devolution although the DUP is assailed by the same people for wanting to do things differently (or more accurately not at all) at the Assembly.
That the DUP led by Arlene Foster (with Martin McGuinness) actively permitted Westminster to include Northern Ireland in the gay pardons and disregards legislation in 2016 (again my doing) has gone without comment. This was very much a DUP first (and perhaps a last). Indeed Mrs Foster said to me at the time, “It was the right thing to do although we would not want to sing about it.” Not so Snarlene.
Unionists can’t win on any progressive agenda. The UUP is a movement not a party and essentially operates only to maintain the Union. It is a broad church and tolerant while also undisciplined and subject to splits. Most importantly it, and Unionism generally, is a status quo operation and thus intrinsically conservative. It is next to impossible, if not contradictory, to lead it in a radical or progressive direction. That does not mean it cannot pragmatically accept and work change as it did from 1945-65 with the National Health Service, state grammar schools and the development of the Housing Trust.
The DUP is a religiously-based centrally controlled party, a self-regenerating cult devoted to devolution in the now forlorn belief it can prevent modernist and moral changes while divvying up the enormous funds provided by London. Admittedly, now alongside Sinn Fein, that means only half the available block grant. Up to 1972, its less populist rival, the UUP, had vastly less to spend. Since the Renewable Heat Initiative (RHI) or ‘Cash for Ash’ scandal that avenue will be closed down. The DUP now has no purpose at Stormont.
Progressives fail to see (indeed have never realised) that progress cannot come from Unionist parties or devolution. It must be sourced through involvement with Westminster, using that parliament’s ultimate power and funding. Instead, radical Protestants with few exceptions fall for the notion that Stormont can provide an answer even when, as now, it operates under the concept of consociationalism: That is mutually assured immobility which must lead to intermittent collapse.
They rail against Unionism to such a degree that they end up objectively nationalist, marry out or migrate. There was, in my political time, the Campaign for Labour Representation and the Campaign for Equal Citizenship. Long forgotten, we operated in the 1970s and 1980s proposing participation in the political parties that govern us, particularly the Labour Party. This was reckoned an avenue for progress that could uniquely involve Catholics and even nationalists, as had occurred in Glasgow and Liverpool after 1918. With the Labour franchise latterly handed to the SDLP and earlier to the Communist Party of Northern Ireland, Protestant radicals had nowhere to go. An exception was the Northern Ireland Labour Party in a brief 1960s optimistic flowering, much as is happening today. The ethnic dispute however re-emerged by 1968 and put that to an end for 40 years.
The 1998 Belfast (Good Friday) Agreement so beloved by Dublin and London then bewitched the well-meaning and progressive forces in our society. It admittedly brought an end to the Irish constitutional claim over the six counties although that has not prevented Dublin from using the EU to advance its cause. And this despite the EU coming into existence to end European territorial disputes, as with Alsace Lorraine.
At the same time Loyalists were guided by progressives down a channel of opposing the all-class alliance of Unionism when nationalism had no intention of following suit. Loyalist paramilitarism, born out of understandable suspicion of London’s intentions, was hard to resist in working class areas but ultimately destroyed those very areas through criminality. An army without an officer class can only go in that direction. The Progressive Unionist Party (PUP) emerged but became an anti-political cul-de-sac beholden to Stormont and the Agreement.
With devolution effectively over, like the dreary steeples of Fermanagh and Tyrone, Westminster has resurfaced as our top level, indeed only, political forum. Local government which does work needs the extra powers that Stormont stole in 1972 moments before direct rule. A strategic authority on the hill is all that is needed. Legislation can be processed on an opt-out basis with Northern Ireland included in reforms unless it specifically decides not to. Given that I have spent all my political life, over half a century, playing catch up and little else, it would be a magnificent legacy to see the system reversed.
We now have direct rule lite but it dare not speak its name for fear of offending Sinn Fein and supposedly encouraging IRA violence. Yet Sinn Fein actually called for Westminster to legislate on abortion and equal marriage. This was a remarkable volte-face given they boycott its chamber if not its allowances, but it was instructively honest. The history of power-sharing Stormont is that it cannot legislate anything contentious. Other recent examples of its failing in that regard are welfare reform and the absurdly complicated legacy legislation which were exported to Westminster despite Northern Ireland having an oversized separate body of law which costs millions to maintain.
It is amazing how so many radical Unionists in Northern Ireland have been tricked or deceived into thinking only one way is open and that is devolution, when all the evidence tells you otherwise. One reason for such delusional false consciousness may be what Ian McBride described when reviewing a book by Guy Beiner on memories of the United Irish rebellion: “To trace the echoes of the 1798 turn-out is to write a cultural history of Ulster Protestantism, since almost all oppositional or dissenting strands in Protestant culture have disclosed themselves by imaginative attempts to revivify Presbyterian radicalism.” This is the noble but pointless tradition of the Protestant Home Ruler which alongside the guilty Prod phenomenon means every generation Unionism loses its progressive cadre.
People, especially young people believe there is no alternative; that there can be no alternative. Well I have news for them. There is and there was. This is something I have spent all my political life doing. Indeed it is sad that just because one lives in Northern Ireland it is what you have to do. It is even sadder that few realise it. Especially liberal Unionists.
The Stormont Assembly according to core London and NIO policy since 1921 is sacrosanct, sitting or not. Without it the ‘peace process’ would wither or die leading to chaos and war. Without institutional reform what may go on occurring are periods of executive formation followed by effective direct rule, given that the Assembly is intrinsically unstable and incapable of legislating.
My central understanding is that Unionism is about the status quo, so being progressive in itself, or in front of the curve, is impossible and pointless. That doesn’t mean not fighting or arguing for reforms, mostly at Westminster; just not seeing Unionist immutability or traditionalism as the enemy and wandering off.
This is a guest slot to give a platform for new writers either as a one off, or a prelude to becoming part of the regular Slugger team.