Everybody knows that meme where a hapless-looking stick figure watches on semi-conscious as two words, “the point,” soar gracefully overhead. I recently tuned in to the debate on Pat Catney’s Period Products (Free Provision) Bill to find our local representatives in a comparable state of obliviousness. The point was plunging round the chamber like an invisible pirate ship on a billowing sea of non-points, firing its cannons of good sense to no avail. Now, the basic responsibility for any legislator, the point in question here, is upholding the rule of law. Nothing even comes close in importance. But such a foundational idea never entered into the MLAs’ remarks. That should alarm us all.

Mr Catney, narrowly elected for Lagan Valley back in 2017, got up to begin the proceedings. Of all the contributors to miss the main issue, Mr Catney came closer than many another to addressing the point, which is to his credit. All the hallmarks of good legislation got a namecheck in his opening comments: “the Bill touches on the universal concepts of equality, mutual respect and the right of all our citizens to live their lives with dignity,” the SDLP MLA remarked. And who could object? After all, this wording frames the Bill in the most inclusive possible manner.

The rule of law

As it happens, no shortage of members did object. Although more on this later. For now, let us define the rule of law more precisely. Here, I’m working with Austrian philosopher Friedrich Hayek’s conception. His definition is multi-layered. One part of it, however, pertains closely to the Period Products Bill: “The third requirement of true law is equality” (The Constitution of Liberty, 183). This is pretty self-explanatory. Few people would recognise a law that applies unevenly across different sections of society as being legitimate. Any time the phrase “two-tier” is used, it relates to perceptions of inequality under the law.

So that a two-tier society does not emerge, inclusive legislation – in the strict sense, not the progressive sense, of the term – is needed. 

“Regarding the use of gender-neutral language in the Bill,” explains Mr Catney, “the Equality Commission and the Bill Office made it clear to me that all legislation requires such language.” Even a new bill on sperm donation would also require gender-neutral pronouns. That such a hypothetical bill would affect only men is irrelevant. Utterly beside the point. It’s a matter of simple procedure to frame the legislation without explicit reference to gender. And impersonal procedure takes no sides in the culture wars over identity.

Hayek is under no illusions, all the same, of a perfect system: “A law may be perfectly general in referring only to formal characteristics of the persons involved and yet make different provisions for different classes of people,” observes the philosopher. “Some such classification,” he continues, “is clearly inevitable” (Constitution, 183). 

In the context of Mr Catney’s Period Products Bill, two groups are implicit: either somebody menstruates or they don’t. And a Bill which enshrines a positive right for people who menstruate – and this Bill manifestly does – offers no corresponding right for people who do not. Unless, of course, the Bill were to pledge sanitary products to people who don’t have periods, which would be wasteful.

A matter of principle, not ideology

Moving on from Catney’s preliminary speech, and the DUP’s Pam Cameron was none too thrilled about inclusive language in the Bill: “This is about providing much-needed support for women and girls. To be clear, the scheme ought to apply to ‘women’ and ‘girls’,” insisted the member for South Antrim. “In the interests of making good law, that should be clarified in the final version of the Bill,” she added. Ms Cameron is right that the Bill is for the benefit of women and girls. But she doesn’t explain why this necessitates a move away from the procedural norms of drafting legislation in universal terms.

A similar contribution came from Diane Dodds, latterly the DUP’s Economy Minister: “We have to be open and honest and address the issue in the context of women and girls,” Lady Dodds opined. “I would like to see the language of the Bill reflecting that by its Final Stage, she continued.” 

I wish every MLA were mandated to read The Constitution of Liberty before taking their seat. If not the whole thing, then the middle section at a minimum. The omission of gendered language, they would soon learn, isn’t about annoying conservatives who would rather it were included (although certain interventions from the more progressive MLAs didn’t help to make this case). It’s about upholding the principle that isolating one or another group in a piece of legislation is a dangerous path to follow.

General principles are unfashionable nowadays. But without them we’re doomed. Swapping the Bill’s gender-neutral terms for female pronouns, as Dodds et al. advocate, sets a precedent in the Assembly that singling out a particular group of people is acceptable. There is no difference, logically if not morally, between taking one social group under your wing to help them and selecting a different one to harm. Therein lies the groundwork for discrimination of a more sinister strain. 

“Precedents be damned,” says the modern legislator. Hayek warned us never to go down this road: “It is this fact that all rules apply equally to all, including those who govern, which makes it improbable that any oppressive rules will be adopted” (Constitution, 184). Wording matters… a lot.

A blueprint for an ideal MLA

There are other settings in which to have contemporary debates on the use of pronouns, if one is inclined. A legislative chamber isn’t the proper place. Never has been. That’s the domain of a debating society or a call-in radio show. Drafting legislation isn’t exactly exciting, at least much of the time. Scattering a few piquant exchanges throughout the proceedings may help to liven things up. But our legislators – Members of the Legislative Assembly – primarily go to the Hill to legislate, after all.

A more favourable reading of Catney’s language came from Alliance’s Paula Bradshaw. “In the Chamber, should we not legislate for everyone in society and create laws that are inclusive?” Eventually! Someone finally hits the nail on the head. And I would add, once again, that framing laws which are inclusive is not about being nice or pandering to certain interests. It’s a procedural matter aimed at advancing the rule of law. Most of our MLAs, I think, would answer Bradshaw’s question with an emphatic “yes.” But it seems many would struggle to defend this “yes” using principles rather than ideology. That’s worrying.

We should seek MLAs with strong, thoroughly reasoned, arguments to make. And at the very core of his or her principles has to be – repeat, has to be – the rule of law. Some attributes, like being a people-person, are useful in elected positions, but they’re not enough. Political philosophy, beyond issue-based ideology, matters a great deal. A person with a good heart, who can enrich our public discourse, is the sort of individual we should seek in any candidate for Stormont. That is my blueprint of an ideal MLA, at least. Let’s have 90 of them.