Newton Emerson: DUP calls Heaton-Harris’s bluff over ‘Dáithí’s law’

Party did not give into pressure to restore Stormont and pass law. Northern Ireland Secretary should instead threaten to involve other parties in direct rule

Too many cynical games have been played over “Dáithí’s law”, the opt-out organ donation legislation that saw an attempted recall of the Stormont assembly this Tuesday.

The actual law, sponsored by the UUP, was passed last February after a campaign by the family of six-year-old Dáithí Mac Gabhann who is awaiting a heart transplant. The Bill had been in its final stages when the DUP withdrew its first minister over the Brexit protocol, risking the collapse of all legislation in progress.

Although the DUP had been split over the ethics of opt-out donation, it knew sinking the law would be deeply unpopular, so it helped rush it through along with other almost-completed legislation before the assembly rose for the election it had triggered. The opt-out register was scheduled to go live this spring.

But preposterously, nobody remembered to switch the law on. Its commencement requires an order from the Department of Health that was not issued before caretaker ministers lost office at the end of October.


The oversight went unmentioned until last month, when all Stormont parties including the DUP asked northern secretary Chris Heaton-Harris to pass the order at Westminster instead. The parties were actively not playing games at this stage, by presenting a united front rather than ridiculing the DUP for lobbying against the impact of its own boycott.

However, Heaton-Harris replied the order should be given at Stormont, by the DUP restoring the executive. A game had now commenced. Although Stormont would be the simplest route, the Northern Secretary could have rubber-stamped an order through Westminster in days.

In December, Heaton-Harris passed more complicated and contentious legislation at Westminster, enabling him to direct Stormont’s Department of Health to commission abortion services. This precedent made a farce of claiming he could not do the same for Dáithí’s law.

So the DUP held out, until the Stormont truce fell apart. This week’s assembly recall was brought by Sinn Féin, the SDLP and Alliance, with qualified support from the UUP, all egged on by the Northern Ireland Office.

Putting an order through the assembly would first require nominating a speaker, after which the assembly cannot collapse until the next election. The DUP was being asked to end a large part of its boycott for a supposedly one-off act. Although the party was evidently uncomfortable, it was able to stand up to such an obvious ruse.

Nationalist opposition to direct rule is ultimately why the British government will not act swiftly at Westminster during Stormont’s absence. Naturally, nationalists have no objection when Westminster enacts their wishes, such as on abortion or Irish language legislation, nor is this position inconsistent. But it allows the DUP to portray the tactics against it as unprincipled opportunism. Exploiting the emotive issue of organ donation has caused unease beyond the ranks of DUP supporters.

The manoeuvring around Dáithí’s law has illustrated a larger game over the general failure of healthcare in Northern Ireland.

When the caretaker executive collapsed in October, Heaton-Harris expressed a view that “domestic issues” would put the DUP under pressure to restore Stormont. This was taken to mean hospital waiting lists and a winter fuel crisis.

While the fuel crisis was not as bad as expected, the health service is accelerating towards catastrophe. Last week, the DUP said London should take direct rule powers to fix it.

The British government is clearly thinking of the events of late 2019, when Sinn Féin was pressurised into ending its three-year walkout from Stormont by a hospital waiting list crisis, highlighted by the UK’s first-ever nurse’s strike. The impact of this development came largely from being novel, unexpected and spontaneous. It also occurred when waiting lists were “only” a third their present length and basic health services were still functioning.

London’s attempt to engineer a recurrence of 2019 is too blatantly artificial to have the same effect.

The DUP has been warned by London, Dublin, nationalists and other unionists that the alternative to devolution is not “British-only” direct rule but some form of joint authority or at least an enhanced consultative role for the Irish Government.

The calamity in the health service has reached a point where the DUP feels this is a bluff it can call. Any meaningful degree of joint authority is a fantasy. Enhancing the Republic’s consultative role has been threatened and tried repeatedly for decades yet never amounted to anything. There is little prospect of this changing, certainly within the one- or two-year time frame the DUP will be considering for a continued Stormont boycott.

A more credible form of pressure is required – one that does not depend on grotesque brinkmanship over healthcare. This might involve de facto direct rule, with an enhanced consultative role for parties willing to form an executive, while emphasising the DUP has chosen to marginalise itself.