For those of us in Northern Ireland is was another bemusing and baffling political week, even by the standards of, well, Northern Ireland.
What actually happened?
Firstly, at UK level, the UK Government wanted to put through a “meaningful vote” motion as required by an amendment forced long ago by now whipless Conservative MP Dominic Grieve, to accept the deal it has done with the European Union over the UK’s withdrawal, then due this coming Thursday (31 October).
However, an amendment forced by Mr Grieve’s fellow Conservative “rebel” Oliver Letwin declared in effect that no such vote could be “meaningful” until the actual Act enabling the UK’s withdrawal from the European Union and fulfilling the deal had passed Parliament. This is designed to ensure the UK does not exit the EU with no deal, which could still potentially have happened had Parliament passed the Meaningful Vote but not the legislation that needs to go with it.
Losing to Mr Letwin’s amendment as the ten spurned DUP MPs switched sides, the Government then withdrew the Meaningful Vote but continued on Monday with legislation to implement the deal. This reached third reading, the first time that Parliament has actually shown majority support for any particular means of leaving the EU (although it is not true, as some media outlets reported, that the deal ever went “through Parliament” as the process is not yet complete). However, losing a “programme motion” meant that the Government could not proceed with the legislation as quickly as it wished, meaning that it would run out of time by 31 October and under the Benn Bill (a piece of legislation passed before “prorogation”) be forced to accept an extension to 31 January if offered by the European Union.
At this, the Prime Minister threw the head up and instead said that if he couldn’t get his legislation through in time for 31 October and was forced to 31 January, he would instead prefer to go to the people in an election, for which the soonest date under the Fixed Term Act 2011 is 12 December. However, there he runs into the problem of how to force the election – he is unlikely to get a two thirds majority for the necessary motion, so he would either have to put down legislation for such an election (which could be amended – for example, to force votes at 16 or even simply to change the date) or vote no confidence in himself (this has been done twice in Germany in the last 40 years to force elections, but is liable to misinterpretation in the UK).
Meanwhile, for its part, the European Union has said that it will offer an extension (which will have to be accepted by the UK Government unless it is for a date other than 31 January and Parliament specifically rejects it, which is unlikely) but has not yet said to which date. There is a temptation, particularly in Paris, to offer just ten days or so – enough time to get the relevant legislation through the UK Parliament and approval of the deal through the UK Parliament and the European Parliament. The likelihood will be a fudge, as last time (when 29 March became initially 12 April and then 31 October), with something like 14 November dependent on safe passage of legislation turning back into 31 January or even at the outside 30 April (this date is relevant as it is the end of the current EU budget period).
The UK Parliament will then spend a few days determining whether to have an election on 12 December (or indeed some other date in early 2020) and then whether to continue with passage of the Withdrawal Agreement Bill and a Budget. The threat of a “Government strike” has been mentioned but is just silly.
In Northern Ireland itself, amendments to the Executive Formation Act which achieved Royal Assent in July had clarified that, if no Executive were formed by midnight on 21 October, same-sex marriage would be legalised and abortion liberalised with exact details to be sorted through regulations by Easter 2020.
For clarification, the UK Government has clarified that same-sex marriage will formally become legally recognised in Northern Ireland in mid-January, with first registrations of marriages (accidentally but appropriately) taking place a month later in the week of Valentine’s Day. On abortion, Sections 58 and 59 of the Offences Against the Person Act 1861 (essentially the criminalisation of women seeking termination) have been deleted but the Criminal Justice Act 1945 (rendering the “destruction of a child capable of being born alive” illegal) continues to apply. The confusion here is that the latter Act refers to 28 weeks as the term after which a child is definitely capable of being born alive, but it should be noted the reverse logic does not apply (so this does not mean that a child under 28 weeks is definitely not capable of being born alive); in practice termination is a medical procedure which by law must be carried out by regulated medical professionals and under the law no professional is going to risk carrying one out other than in a case of Fatal Foetal Abnormality (i.e. not capable of being born alive under the 1945 Act) until regulations clarifying legality are completed around Easter time.
What happened in the Assembly on Monday was high farce. It is worth re-emphasising that an Assembly can only sit to scrutinise and legislate upon appointment of an Executive; and an Executive can only be appointed once the First and deputy First Minister accept their offices (appointment is automatic to the largest party and then the largest party in a different designation). As has been noted here before, Northern Ireland is unusual in that regard because other jurisdictions allow legislatures (Assemblies) to sit and allow Ministers (i.e. Executive office holders) to retain their role as caretakers after elections until they are replaced; in Northern Ireland, however, Ministers lose office on election day and the newly elected Assembly cannot function before new ones are in place. In practice, this means the Assembly can only function if both the DUP and Sinn Fein agree to let it function.
That does not mean that the Assembly cannot meet, but previous “talking shop” Assemblies have never worked because ultimately they consist of demands being made with no one taking responsibility for carrying out the Executive functions which would deliver them. Meeting (via “recall”) is not the same as functioning (via “restoration”), in other words.
A meeting took place on Monday at the behest of enough Unionist MLAs (30/90 MLAs overall is the required number), but Sinn Fein did not even attend, far less accept the role of deputy First Minister as required for the institutions to be re-established. However, a bizarre attempt was then made to skirt around standing orders so that the election of a Speaker and an Executive would not be necessary for the Assembly to resume its legislative functions. Even more bizarrely, it turned out there had been an exchange of correspondence over the previous 24 hours between a DUP MLA and the Attorney General (who, note well, advises the Executive not the Assembly and is also a long-standing anti-abortion campaigner) about a Bill which a DUP MLA had drafted to remove the amendment referring to liberalisation of abortion. Somewhat ludicrously, despite the DUP needing majority support and holding only 28 of the 90 seats including the Speaker’s, this had not been shown to anyone other than the Attorney General. Inevitably and correctly, the whole charade was ruled out of order by the Speaker on his own legal advice.
This piece is to outline factually what occurred and why the consequences were what they were, but it must be pointed out that this was in no way a serious attempt by the DUP to overturn the amendment liberalising abortion from midnight that night (21st/22nd). Even had the Speaker chosen to ignore his own legal advice and allow the sitting, the legislation and even any appointments made would have been struck down by the Courts anyway. Had the DUP really wished to act, it would have spent the previous 3-4 months working out how to restore the Executive, a move which automatically would have rendered both amendments (on same-sex marriage and abortion) void on their own terms. It chose not to do this, and thus it chose to allow the legalisation and liberalisation to proceed. What happened in the Assembly on Monday was an attempt at diverting blame, even though the simple fact is that had the DUP carried through the deal to restore the institutions in February 2018, there is zero chance that such liberalisation would have occurred by now or even imminently.
The local parties were given another three months by the Secretary of State to reach a deal to restore the institutions otherwise, under the existing law, he will have to set a date for an Assembly Election on 13 January. In practice, however, he can always have that law amended by Parliament.
Who knows? File the below under “somewhat educated conjecture”…
Clearly Brexit is the priority for everyone in politics both around Westminster and Stormont, and in practice there is close to zero prospect of a deal to restore the Executive (and thus the Assembly) before there is some clarity on it.
If the UK Government is determined to have an election on 12 December there are some risks it could take to try to force one, but it will probably not be minded to – it does not really want an election on that date, it just wants to accuse the Opposition of being chicken.
The EU will likely offer a “flextension” – something like 14 November in case of relevant legislative and administrative requirements to implement the deal being met, 31 January otherwise; in practice this will automatically be accepted by Parliament.
There is a chance (to be filed under “possible but not probable” but still higher than most commentators think) that the UK Government is not serious about its “strike” and that the UK Parliament will pass the Withdrawal Agreement Bill in early November, with the UK thus proceeding to leave the European Union under its terms in mid November. An election will suddenly be deemed less urgent in such circumstances, particularly if a Budget passes, and may well then be delayed until the spring.
There is also a chance that the Bill will be amended in such a way that it requires the deal itself also to be reworked. Quite where such a chaotic outworking would lead us is unclear.
There seems scant evidence of a majority in Parliament to force a deal versus remain referendum (a so-called “People’s Vote”), but if such evidence does emerge it could be one reason the Government is keen to avoid proceeding with the legislation this side of an election (since a referendum could be forced via an amendment).
In the end, the best bet is to be prepared for anything…