On Tuesday, the Northern Ireland Assembly took time off from the dangerous issue of welfare reform to debate a DUP amendment to the Criminal Justice Bill proposing a 10-year jail sentence for any woman who terminated a pregnancy other than in a National Health Service hospital or other facility that does not charge for the procedure. The same sentence was proposed for anyone aiding and abetting access to the procedure.
The proposal had no chance of success. This will have been known to every MLA who spoke, for or against. Sinn Féin, the Alliance Party and the lone Green Party member, Steven Agnew, had submitted a petition of concern against the measure. Thus, the amendment was scuppered even before the DUP chair of the justice committee, Alastair Ross, stood up to move the motion.
The petition-of-concern device was included in the Belfast Agreement under the heading “Safeguards”. The intention was to “ensure key decisions are taken on a cross-community basis”. Such decisions require either “parallel consent” – majority support in the chamber, including a majority of both designated unionists and designated nationalists; or a “weighted majority” – 60 per cent of members present, including at least 40 per cent of both unionists and nationalists.
Any decision can be declared “key” by 30 of the 108 Assembly members.
Only the DUP, with 36 MLAs, can trigger a petition on its own. Sinn Féin has 28 seats and needs the signatures of at least two additional members.
It is one of the many confusions and anomalies of the agreement that, although the device is designed to prevent members from one community passing a motion that, in the view of the members from the other community, would differentially and unfairly impact on their side, those registered as “others” (neither nationalist or unionist) are free to sign petitions. But when it comes to the vote, “others” have no role: they cannot help make up the numbers for parallel consent or weighted majority.
An intriguing situation will arise when/ if the number of “others” exceeds 30. Obviously, this possibility didn’t occur to the agreement’s drafters or was dismissed as of no account since the agreement’s purpose was to regulate relations between “the two communities”, not to establish a democratic institution as the phrase is generally understood. When the agreement was published, in April 1998, it was pointed out that the logic of this arrangement led towards separate electoral rolls for unionists and nationalists.
Confusion and anomaly
It is another source of confusion and anomaly that the proposals subject to petitions of concern are not required to be colour-coded orange or green. Any measure to which 30 or more members object to sufficiently strongly can be brought within its remit. Tuesday’s DUP abortion proposal (
worded to bring about the closure of the Marie Stopes clinic in Belfast, which offers abortions up to nine weeks using the abortion pill) clearly won’t impact differentially on either of the main communities.
Similarly with welfare reform. In May, a highly charged debate on a DUP motion to press ahead with the benefit cuts the Treasury was insisting on was rendered meaningless from the outset by a petition introduced by Sinn Féin, the SDLP and Agnew. Bile and spittle flew. But, as all in the chamber knew but nobody said, it was all mere sound and fury.
Whether the absence of a petition of concern would have resulted in a simple, decisive majority for or against the cuts can only be a matter of speculation. What’s certain is the petition’s introduction made deadlock inevitable and will programme future measures for failure.
It has been widely been remarked over the past few weeks, as the possibility of the British government intervening to take back the Assembly’s control over welfare has loomed ever larger, that failure to find compromise could result in the collapse of the institutions. It has not been so widely remarked that one of the main reasons for Stormont’s dysfunctionality is that the Assembly and Executive were not shaped to handle issues that cannot be reduced to orange versus green.
Related consequence
A related consequence is that debate on a way out from the impasse, and from future impasses that
are certain to arise, has included little discussion of whether it’s the structures themselves and not merely the way they have been used that require drastic change.
As things stand, there is no possibility of the Assembly ever clarifying the circumstances in which women will be legally allowed to exercise their right to choose abortion. Any move towards either liberalisation or further restriction will be stymied by a petition of concern from one side or the other. Stormont cannot handle the abortion issue. It was never designed to. The same goes for equal marriage.
If Dáil rules had allowed any measure to be blocked by, say, 40 TDs out of 166, it’s unlikely we’ve have had the recent referendum.