Opinion

Newton Emerson: Who will own Stormont’s sexual offences law fiasco?

Stormont made a serious mistake and the courts corrected it. All everyone has to do now is admit it

Newton Emerson

Newton Emerson

Newton Emerson writes a twice-weekly column for The Irish News and is a regular commentator on current affairs on radio and television.

Sinn Féin MLAs now sit on the speaker's right in the assembly chamber
The full process of a Stormont bill involves almost every party
By Newton Emerson

One response to Stormont’s sexual offences law fiasco would be to say it needs a House of Lords – a second chamber of experienced legislators who could pass bills back to the assembly several times with proposed changes.

Such a chamber should have spotted that a section of the Justice (Sexual Offences and Trafficking Victims) Bill breached human rights protections by disproportionately restricting press freedom. Instead, media organisations – including The Irish News – had to challenge the law at Belfast’s High Court, where a judge struck it down last week.

A second chamber is not an entirely ridiculous idea. The old Stormont had a 26-member Senate, its chamber is still there and refilling it with retired MLAs on a part-time basis would be far from the costliest political ornament in Northern Ireland.

But in all seriousness, no further mechanism should be required.

In the assembly on Monday, DUP MLA Joanne Bunting said “this institution was rushed and sacrificed quality for quantity” when the sexual offences bill was passed.

Alliance Justice Minister Naomi Long disagreed, saying “no processes were condensed”.

Justice Minister Naomi Long responds to an urgent oral question in the assembly about the High Court decision on the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022
Justice Minister Naomi Long responds to an urgent oral question in the assembly about the High Court decision on the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022

Both were correct. The bill was one of an incredible 26 pieces of legislation squeezed through between the resignation of DUP First Minister Paul Givan in February 2022 and the dissolution of the assembly seven weeks later.

However, unlike many of those bills, it did not benefit from any shortcuts to beat the dissolution deadline. It went through the full set of assembly debates, line-by-line consideration debates and a committee stage over the course of nine months. In fact, the bill had more planning than most legislation.

Its contentious section, granting anonymity to those accused but not charged with sexual offences, arose in response to the so-called ‘rugby rape trial’ in 2018. Officials in the criminal justice system commissioned the Gillen Review, which reported in 2019. Its recommendations were taken up when devolution returned. So this section alone had been in the works for years.

Sir John Gillen holds a copy of the Gillen Review Report into the law and procedures in serious sexual offences in Northern Ireland (Liam McBurney/PA)
Sir John Gillen holds a copy of his report into the law and procedures around serious sexual offences in Northern Ireland

The full process of a Stormont bill involves almost every party, as it will be examined by a cross-party assembly committee. The sexual offences bill was examined by the justice committee, chaired at the time by the DUP, co-chaired by Sinn Féin and with members from the SDLP, UUP and Green Party, including UUP leader Doug Beattie.

Everyone seems to have thought they did a great job. In the assembly’s final debate on the bill in March 2022, justice committee members from the DUP, Sinn Féin and the SDLP commended the work of all concerned, helpfully listed by the SDLP’s Sinead Bradley as “the assembly clerks, the departmental officials – those whom we meet and the many who work behind the scenes whom we do not meet – the bill office, fellow committee members and the minister”.

Beattie would doubtless have concurred, had he not been absent due to illness.

No wonder Long seemed peeved when the same parties turned on her in the assembly on Monday. Success at Stormont has many fathers but a failed bill belongs to its parent department.

Press freedom was raised during the bill’s passage on the specific point used by the court to strike it down: free expression under Article 10 of the European Convention on Human Rights.

Permanent anonymity would be a breach, it was decided, but anonymity for life plus 25 years after death would not.

Long has firmly denied misleading the assembly. It would be no excuse anyway: the legislative process should not be capable of being misled into a flagrant breach of human rights protections. Stormont is banned from doing so by the Good Friday Agreement; officials and elected representatives are meant to be constantly ‘screening’ their work to avoid it.

What might charitably be said is that Stormont made a serious mistake, as is occasionally inevitable, but the courts – a safeguard in the system – have corrected it. All everyone at Stormont has to do now is admit it.

The court found there had simply been “no debate” on press freedom, beyond blithely deciding it was not an issue. Reading through what was debated, it is clear the overwhelming focus was on social media, which was understandable. Online postings had been the problem during the rugby trial, while the press had respected the law. It is a pity there was no respect for the press when it pointed out Long’s new law would be a disaster.

What might charitably be said is that Stormont made a serious mistake, as is occasionally inevitable, but the courts – a safeguard in the system – have corrected it, so no permanent harm need have been done.

All everyone at Stormont has to do now is admit it.