Abortion: Pressure mounts for law change in Northern Ireland

Abstract

With a key case due to come before the High Court, Clare Dyer looks at the legislative options for bringing the province into line with the rest of the UK

Moves are afoot to again try to liberalise Northern Ireland’s strict abortion laws. On two successive days this week a substantial majority of MPs in the UK parliament supported a private member’s bill and also an amendment to a government bill that aimed to give women in Northern Ireland similar rights to those in the rest of the UK.

But the private member’s bill, presented by the Labour MP Diana Johnson, will not become law because the government has indicated that it will not make parliamentary time available for it, even though MPs supported it by 208 votes to 123.

And while the amendment to the Northern Ireland (Executive Formation and Exercise of Functions) Bill put down by the Labour MPs Stella Creasey and Conor McGinn was passed by 207-117 and could become law after the bill goes through the House of Lords, it will not actually change the law in Northern Ireland.

Further pressure for reform will come when the Northern Ireland High Court hears the case of Sarah Ewart, who travelled to England for an abortion five years ago after she was told that her unborn baby had a fatal fetal abnormality. Mr Justice McCloskey ruled on 24 October that she had an arguable case that the departments of justice and of health in Northern Ireland had breached her human rights and pledged that it would be determined no later than January next year.

Breach of human rights convention

Abortion is permitted in Northern Ireland only if the pregnancy threatens the woman’s life or there is a risk of serious, long lasting damage to her physical or mental health. The UK Supreme Court ruled last June that the province’s ban on abortion in cases of incest, rape, or fatal fetal abnormality breached the European Convention on Human Rights.¹²

But the court decided that it could not issue a declaration of incompatibility, which normally leads to a change in the law, because the Northern Ireland Human Rights Commission, which brought the case, had no standing to bring it. Sarah Ewart’s case, brought by someone who has suffered personally because of the law, will remedy that defect.

The day before Ewart won the go ahead for her case, the House of Commons voted in favour of Johnson’s Abortion Bill. If it had been allowed to progress through parliament and become law, it would have scrapped 19th century legislation making abortion a criminal offence in England, Wales, and Northern Ireland.

In England, Wales, and Scotland the 1967 Abortion Act permits terminations if the provisions set out in the act are complied with, but the Offences against the Person Act 1861 remains on the statute book. In Northern Ireland the 1861 act also applies, but there is no equivalent of the Abortion Act.

The UK prime minister, Theresa May, maintains that abortion law reform is a matter for politicians at Stormont, the Northern Ireland assembly, to which issues of health and justice are devolved. The Democratic Unionist Party, which is propping up May’s minority UK government, is fiercely anti-abortion and insists that any changes are a matter for the devolved government.

But a further complicating factor is that the assembly has not sat since January 2017, after power sharing between nationalist and unionist parties collapsed. Creasey and McGinn’s new clause is part of an emergency Northern Ireland bill designed to restore stability to the province’s public services.

The clause will not change the law but will require the Northern Ireland secretary to issue guidance to officials specifying how to exercise their functions in relation to the incompatibility of the 1861 act with the rights of people under the Human Rights Act 1998, as “identified by recent, current, and future court proceedings.”

UK government action

Could and should the UK government act to reform a law that the UK Supreme Court has found to violate human rights? In a report published last February the UN Committee on the Elimination of Discrimination Against Women concluded that women in Northern Ireland were being subjected to “grave and systematic violations of rights” by restrictions on access to abortion, and argued that devolution of powers to the assembly did not remove the responsibility of the UK government to act.³ A report from a working group commissioned by the former health and justice ministers in Northern Ireland, published last April, recommended that abortion should be allowed in cases of fatal fetal abnormality.⁴

In September the House of Commons Women and Equalities Committee launched an inquiry into abortion law in Northern Ireland. Among the questions it seeks to answer are: What are the responsibilities of the UK government under its international obligations for taking action to reform abortion law in Northern Ireland? And how should these be reconciled to the UK’s devolution settlement?

Last May the people of the Republic of Ireland voted in a referendum to scrap its virtual ban on abortion. Momentum is building for change in Northern Ireland too. But how long it will take is by no means clear.

Footnote

bmj.com Feature After 50 years of legal abortion in Great Britain, calls grow for further liberalisation doi: 10.1136/bmj.j5278

¹ In the matter of an application by the Northern Ireland Human Rights Commission for judicial review (Northern Ireland). [2018] UKSC 27. https://www.supremecourt.uk/cases/docs/uksc-2017-0131-judgment.pdf.

² Dyer C. Northern Ireland abortion law breaches human rights, say judges. BMJ 2018; 361: k2541. 10.1136/bmj.k2541   29880702

³ Office of the High Commissioner for Human Rights. UK violates women’s rights in Northern Ireland by unduly restricting access to abortion—UN experts. Feb 2018. https://www.ohchr.org/En/NewsEvents/Pages/DisplayNews.aspx?NewsID=22693&LangID=E.

⁴ Department of Justice, Department of Health. Report of fatal fetal abnormality working group. Apr 2018. https://www.justice-ni.gov.uk/publications/report-fatal-fetal-abnormality-april-2018.