Sam McBride: Profound flaws in Bradley’s approach exposed by rushed abortion change

Westminster and Stormont can often seem mere stages on which ambitious egotists grubbily fight for power. The last two years have seen Stormont not sitting at all and Westminster repeatedly going around in circles over Brexit, sapping public confidence in the ability of politics to respond to practical challenges.

But while there are many people in Northern Ireland who will not have welcomed the passage of legal changes to legalise same-sex marriage and decriminalise abortion, Tuesday demonstrated that momentous changes can be made by those who take part in politics and then harness the raw power of a legislature to shape society.

In a largely empty House of Commons chamber, MPs spent just four hours debating two amendments to the Northern Ireland (Executive Formation) Bill. The bill itself was as unexciting as the secretary of state who tabled it, Karen Bradley. The bill was intended to yet again remove from her the duty to call an election – as otherwise she would be legally bound to do – after more than two years without a devolved government in Belfast.

In typical fashion, Mrs Bradley sought to fast-track the bill through Parliament, using procedures designed to address emergencies or sudden unforeseen events – despite the fact that for more than a year there has no real expectation of a rapid return to devolution.

It cannot have been entirely unforeseen that attempts would be made to amend the bill in far more significant ways. Stella Creasy, the author of the abortion amendment, had on several occasions brought similar amendments to other Northern Ireland bills and had warned the government that she would continue to do so.

Mrs Bradley might have hoped that the Speaker, John Bercow, would not select either Ms Creasy’s amendment or that of fellow Labour MP Conor McGinn which proposed the legalisation of same-sex marriage, judging them too far outside the narrow parameters of the bill.

But even there, Mrs Bradley could not have been confident because Mr Bercow has shown himself to be increasingly willing the push the boundaries of parliamentary convention.

On Tuesday morning, one experienced DUP figure did not expect Mr McGinn’s amendment to be called but acknowledged that if it was accepted then it was likely to pass. A liberal DUP member, speaking as the debate was ongoing, said of the same-sex marriage amendment: “I think it will go through. I hope it does. I also believe quietly that 50% of DUP members feel the same.”

But while there has been a growing acceptance within the DUP that same-sex marriage was likely to become law, many party members feel more strongly about abortion and did not expect such radical change to pass.

Although there is a longstanding Westminster convention of allowing free votes on matters of conscience such as abortion, the government – particularly because of the DUP’s influence – could have whipped its MPs on the basis that it involved a constitutional question about legislating for a devolved area.

The fact that did not happen will fuel the suspicions of those who think that at least some in the DUP quietly acquiesced in what was happening ,while publicly denouncing the change. The DUP has denied that was the case.

But, regardless of one’s view on the substance of the amendments, the votes exposed a major flaw in how Northern Ireland is being governed.

Mrs Bradley’s decision to fast-track the legislation through Westminster meant that there was minimal scrutiny of the bill.

That was not accidental, but a policy of the NIO since devolution collapsed two-and-a-half years ago.

Leaving legislation to the last moment and then ramming it through Westminster has appeared to suit Mrs Bradley’s purposes in the past. On multiple occasions, the secretary of state has faced a restive Commons and metaphorically shrugged by effectively telling it that because the issue has been left so late there was no time for scrutiny and it must pass her legislation. On each occasion, MPs have agreed to do so, albeit with increasing reluctance.

In March, that strategy came under particular strain when flaws emerged in the complex legislation to retrospectively slash RHI payments, but Mrs Bradley had left it too late for the issue to be properly explored and the bill changed.

Even Mrs Bradley’s minister in the House of Lords, Lord Duncan, conceded that using emergency powers to pass that legislation was a problem, telling peers: “I think we deserve some criticism in this area and I will take that on board.”

Last month a report by MPs on the Northern Ireland Affairs Committee identified flaws in the RHI legislation which had been given so little scrutiny. The committee said that rushing Northern Ireland legislation had “become the norm” and “this is unacceptable”. The report recommended that Mrs Bradley “commit to ending the practice of passing Northern Ireland-related legislation under emergency procedures as a matter of course”.

The reason why legislation in generally not rushed – and takes many weeks or months to pass through the legislative process – is self-evident: With the power given to politicians to change the law by which the public are bound comes the responsibility to ensure that they properly consider the implications and potential for unforeseen outcomes in changing the law.

That became explicit in the hours after Tuesday’s landmark votes. The same-sex marriage change appears legislatively straightforward, although NIO minister John Penrose claimed that in practical terms it would not be possible to implement the change by October 21, as decreed by Parliament. But far more fundamental questions have arisen from the abortion amendment.

Ms Creasy worded the change in an unusual way which makes its meaning unusually opaque. The amendment compels Mrs Bradley to make regulations – a form of secondary legislation which cannot be amended by MPs – “to give effect to the recommendations of the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)”.

The 22-page CEDAW report from last year contains 13 recommendations, the first of which aims to secure the complete decriminalisation of abortion “so that no criminal charges can be brought against women and girls who undergo abortion or against qualified health-care professionals and all others who provide and assist in the abortion”.

On one reading, that would move Northern Ireland’s abortion law from being the most restrictive in the UK to being the most liberal because there would no longer be any criminal sanction for any form of abortion at any point in a pregnancy.

But for understandable reasons the CEDAW report was never drafted to be a piece of legislation. It contains ambiguities, gaps and apparent contradictions.

Although MPs have clearly given Mrs Bradley a mandate to liberalise the abortion law, and the decriminalisation of abortion appears clear from the wording of the CEDAW report, the secretary of state will now have to make a series of her own political judgments as to how the new legislation should be drafted.

Attorney General John Larkin described the CEDAW report as “plainly, not drafted clearly” and on Wednesday NIO minister Lord Duncan told peers that both amendments had “technical deficiencies”.

Even for those who follow politics, parliamentary procedure can seem dry.

Yet if Mrs Bradley had chosen to table this legislation several weeks or months ago rather than deciding to fast-track it, looming political – and likely legal – debate about what MPs have actually decided may have been spared.