Two bits of political news from the UK today that spell trouble for Teresa May’s premiership both of which result from the situation of Northern Ireland. The first is a ruling in the Supreme Court on the very restricted availablility of abortion in the province. The second is the need to possibly further extend the post-Brexit transition period while a solution is found to the border problem between NI and the Republic.
The first is an apparent bit of bad news from the Supreme Court. The law on abortion in Northern Ireland only permits the procedure if the life of the mother is in danger. The Northern Ireland Human Rights Commission (NIHRC) appealled that by banning abortions in cases of rape, incest, where the fetus has a fatal condition or a severe abnormality breached two Articles of the European Charter of Human Rights. These were Article 8 (respect for private life) and Article 3 (protection from cruel and inhuman treatment). Currently women who want an abortion have to travel to mainland Britain, or soon the Republic.
Unfortunately the action failed because the Court decided that the NIHRC did not have standing to bring the case as they were not an agrieved party. Despite failing on this technical point to do with the law setting up the NIHRC, the justices did give a strong indication that the current position is incompatible with Article 8 in all cases except severe but not fatal abnormalities. Five out of the seven justices expressed this opinion. The other two did not give an opinion in view of the standing issue but did not say the current law is compatible. [Full judgement here, video of the summary judgement here.]
Already one woman who was forced to have an abortion in Britain and therefore has standing has come forward as a plaintiff. Supreme Court judgments in the UK have a different effect from those in the US. They do not of themselves change the law but the Government is obliged to redress the matter, usually by changing the law. Here’s where things get interesting. The situation has arisen because the local Northern Ireland parliament has refused to bring NI legislation in line with the rest of the UK. This is because both sides (Unionists and Republicans) have religious following from Christian sects that oppose abortion. To further complicate matters, the Good Friday agreement requires a power-sharing government, representing both sides of the religious divide. This has broken down so there is no local government and no local assembly. This means decisions on the running of Northern Ireland are no longer devolved and the Westminster parliament could pass legislation. Bills are already being put forward.
This is where May is in trouble. Her minority government relies on “confidence and supply” agreement with the unionist DUP. Under this they agree to vote with May on votes of no confidence and on budgets (in return for £1 billion for the province.) These extreme Protestants will pressure May to oppose any Westminster legislation although it probably has broad all-party support, backed by the Supreme Court. Normally such bills are on a “free vote” so whipping to vote against would likely alienate pro-choice Conservative MPs. On the other hand, it would be quite possible for the DUP to disrupt parliament in order to bring down the bill by withdrawing support for May. Under UK law, a vote of no confidence no longer means an automatic general election. The PM can either try to cobble together a new confidence arrangement or for a new Prime Minister to form a government which could win a confidence vote.
The DUP and the Good Friday Agreement are at the heart of another of May’s problems. The EU will not agree to any arrangements that mean customs posts between NI and the Republic, the so-called “frictionless border”. The DUP absolutely opposes one option, special arrangements for Northern Ireland (the so-called “border down the Irish Sea”). Border posts would be needed every half mile or so along the roads that criss-cross the border. They could also become the targets for renewed militant Republican attacks, as they were before Good Friday.
The truth is that there is no solution to this problem that could possibly be implemented by Brexit, next March. The government seems to be pinning its hopes on an imaginary “technical solution” involving cameras recording when a vehicle crosses the border and a sort of “honesty box” principle for goods being declared (as far as anyone can make out!). It has already agreed to maintain the same tariffs as the EU for a “transition” period up to the end of 2020 if no solution is found. This has already angered her rabid Brexiteers as it means continuing juresdiction by the European Court (on trade disputes). It is very obvious that getting a “technical solution” in place is going to take even longer so May wanted to have a “temporary customs arrangement” to extend the transition. He main negotiator, a Leaver (in more senses than one, he has resigned before), demanded and got a time limit of the end of 2021. This is a sticking point for Brexiteers as the next general election is due in 2022 and they want to leave office with the UK completely out of the EU. A final(ish) agreement must be reached with the EU by September as it must be ratified by all other 27 members, including passing legislation in some parliaments.
May has successfully managed to balance and/or placate the various factions. With both of these problems, there are only no-win solutions for her.