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24 October 2018

Abortion and equal marriage reform in Northern Ireland isn’t a foregone conclusion

The law has not been changed, and decision makers in Northern Ireland will not be compelled to do anything.

By Patrick Maguire

It isn’t often that emergency legislation on Stormont elicits cheers from a packed Commons chamber. This evening, however, the Northern Ireland (Executive Formation and Exercise of Functions) Bill did just that.

Exciting MPs across the chamber: the successful passage of an amendment by Labour’s Stella Creasy and Conor McGinn. Their change to the bill – passed by 207 votes to 117 on a free vote, including that of cabinet minister Penny Mourdant – aims to overturn Northern Ireland’s prohibitions on equal marriage and abortion.

So why aren’t the DUP, who oppose both of those things, all that worried? The answer lies in the meat of the legislation, which has received rather less attention than attempts by various MPs to amend it (Steve Baker of the European Research Group abandoned an attempt to use it to make the Irish backstop illegal yesterday).

In the simplest possible terms, the law is an attempt by the government to find a middle ground between devolution – which has been suspended for 18 months and isn’t coming back this side of Brexit – and full-fat direct rule from Westminster, which it has neither the desire, energy, nor parliamentary bandwidth, to implement. It will see civil servants given the power to take decisions that would otherwise be illegal for anyone but a minister to take, with Karen Bradley, the Northern Ireland Secretary, empowered to offer guidance on what they should do.

Though it is intended to end the drift and enable something resembling government, it has instead inspired that rare thing in Northern Irish politics: consensus. Just about everyone agrees that it is a bad piece of legislation. Gavin Robinson, the DUP MP for East Belfast, summed up its biggest fault well this afternoon: “It doesn’t compel decision-making.” Some civil servants will take it as an invitation to make the strategic decisions Northern Ireland needs, others will not. It merely inaugurates a new type of administrative dysfunction.

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Therein lies the problem with the amendment that so delighted MPs tonight. It doesn’t change the law on equal marriage or abortion, as its content had to match the bill it was amending. Instead, it compels the Secretary of State to advise civil servants on their human rights obligations as far as the law on both issues is concerned.

What it doesn’t do is compel those same civil servants to act on it, nor does it guarantee that the advice they are given will necessarily be to enact an immediate change in the law. The prospects for change are brighter, but achieving anything in a system defined by torpor and dysfunction – let alone anything as controversial as this – will still prove very difficult.

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