Abortion in Northern Ireland: at the interface between politics and law
22 March 2021
Abortion reform in Northern Ireland has had a fraught history, to say the least. Matters appeared to finally come to a head when in 2019, the UK Parliament enacted the Northern Ireland (Executive Formation etc.) Act 2019 (2019 Act), which created a duty on the Secretary of State to implement abortion reform by following the report of the Committee on the Elimination of Discrimination of Women (CtteEDAW). Nearly two years and two statutory instruments later, Stormont finds itself mired in fresh controversy as long-term abortion facilities in Northern Ireland have yet to be commissioned. So the obvious question arises: what happened?
The route to legal change
At the outset, it should be remembered that when abortion reform was enacted in Great Britain in 1967, it was not extended to Northern Ireland – which was, at that time, the only devolved administration in the UK (with healthcare firmly devolved to Stormont). Nor was abortion reform extended to Northern Ireland when Direct Rule began in 1972. Until 2019, abortions were mostly illegal under sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The only exception to this sweeping regime was the so-called “Bourne exception”, derived from the summing up of evidence in the criminal case off in which Mr Justice Macnaghten had said that an abortion may be lawfully carried out “in good faith for the purpose only of preserving the life of the mother”.
Intermittently, the courts dealt with complex and harrowing cases involving the question of whether an abortion would be lawful. Examples include Northern Health and Social Services Board v F and G [1993] NI 268 involving a 14 year-old who wanted an abortion and Northern Health and Social Services Board v A and others [1994] NIJB 1 involving a woman with severe developmental disabilities, in which the health authority applied for a declaration that an abortion would be lawful. From these cases, the Bourne exception’s focus on the preservation of the life of the mother was expanded to cover injuries to physical or mental health, but only “real and serious” injuries which must be “permanent or long term”, with no other exceptions to the general unlawfulness of abortion under Northern Ireland law. This legal canvas was examined in Re Family Planning Association of Northern Ireland [2004] NICA 37-39, in which the Northern Ireland Court of Appeal (Lord Justice Shiel, Lord Justice Campbell and Lord Justice Nicholson) unanimously held that the lack of guidance on lawful abortions in Northern Ireland was in breach of a statutory duty to secure the provision of integrated health services in Northern Ireland. The actual law, however, was left unreformed.
It would not be until 2018 that a somewhat more definitive picture of the law emerged. In Re Northern Ireland Human Rights Commission [2018] UKSC 27, the Supreme Court considered whether the existing abortion law in Northern Ireland was compatible with the rights under the European Convention on Human Rights (ECHR), in particular Articles 2 (right to life), 3 (right not to be subjected to torture or inhuman or degrading treatment or punishment), 8 (right to private and family life) and 14 (prohibition of discrimination). That judgment has been covered in extensive detail on this blog (see Jake Richards’ post), so it only suffices to say that, by a majority the Supreme Court concluded that the abortion law in Northern Ireland was incompatible with ECHR rights (there was disagreement between the Justices on the extent of the incompatibility). However, given that a different majority of the same panel found that the Human Rights Commission did not have the standing to bring this case, no legal change flowed from the overall decision.
The following year however, as the Northern Ireland Assembly, having collapsed in 2017, remained comatose, the UK Parliament had to enact fresh legislation for some governance functions to continue in the jurisdiction. This legislation became the 2019 Act, which included amendments to reform abortion law and enact same-sex marriage by Labour MPs Stella Creasy and Conor McGinn, respectively. The duties created by the 2019 Act led to the making of the Abortion (Northern Ireland) Regulations 2020, which were eventually replaced by the Abortion (Northern Ireland) (No. 2) Regulations 2020 (2020 Regulations).
The new regulations reformed abortion law significantly, implementing the CtteEDAW recommendations:
- For pregnancies not exceeding 12 weeks, regulation 3 requires only a medical opinion formed in good faith that the pregnancy has not exceeded 12 weeks;
- For pregnancies not exceeding 24 weeks, regulation 4 requires an assessment that the continuation of the pregnancy would would risk injuring the pregnant woman’s physical or mental health to a greater extent than if the pregnancy were terminated;
- Regulation 5 allows for a termination without gestational limits if a registered medical practitioner forms the opinion that the termination is immediately necessary to save the pregnant woman’s life or to prevent “grave permanent injury” to her physical or mental health.
- For pregnancies exceeding 24 weeks, regulation 6 allows for a termination to prevent “grave permanent injury” to the pregnant woman or where the continuation of the pregnancy would present a risk to the pregnant woman’s life greater than if the pregnancy were terminated;
- Finally, regulation 7 also allows terminations without gestational limits if there is a diagnosis of severe or fatal foetal abnormality.
However, a change in the law did not substantially change the reality of access to abortion.
The Current Problem
Regulation 8(1) of the 2020 Regulations specifies the kind of places where abortions may be lawfully carried out, including places which may be approved by the Northern Ireland Department of Health under regulation 8(3). The Northern Ireland Heath Minister has said that the commissioning of abortion facilities is a “cross-cutting” matter and thus needs agreement by the Executive Committee (the group of Northern Ireland Ministers, roughly Stormont’s equivalent of a cabinet). The workings of the Executive Committee is complicated by the fact that it is statutorily required to be a consociational coalition with diverse party political and community affiliations, each of which has strong views on the topic of abortion law reform. Introduction of limited abortion services was also subject to three “cross-community” vetoes in the Executive Committee. While the precise devolution arrangements in Northern Ireland, relevant as they are to the backdrop of this issue, are outside the scope of this Blog, the net effect of these controversies is the lack of permanent Northern Ireland-wide abortion access for women who live in the jurisdiction.
Meanwhile, a private members’ bill brought by Paul Givan MLA would remove abortion on the ground of severe foetal abnormalities, restricting regulation 7 of the 2020 Regulations (abortion without gestational limits) to fatal foetal abnormalities only, contrary to the CtteEDAW report.
On 3 November 2020, the Northern Ireland Human Rights Commission served pre-action correspondence challenging the continued lack of commissioning abortion services in Northern Ireland. That challenge was granted permission to proceed by the Northern Ireland High Court in February 2021, with a hearing scheduled for May 2021.
In March 2021, the Northern Ireland Secretary of State announced his intention to bring legislation before the UK Parliament to facilitate the commissioning of abortion services in Northern Ireland, earning the immediate ire of the largest Executive party in Northern Ireland and varied reactions across its political spectrum.
Comment
While the continuing debate on abortion reform is convoluted and polarising, it is worth remembering two specific human rights safeguards built into the Northern Ireland devolution settlement. The first is the outright ban on the Northern Ireland Assembly, Northern Ireland Ministers and Departments from breaching ECHR rights. The second is the broad power of the Secretary of State to intervene to legislate or revoke legislation that s/he considers to be in breach of the UK’s international obligations, one of which is the ECHR and another, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in respect of which the CtteEDAW produced its report.
Ultimately, the continued lack of proper abortion access in Northern Ireland may be overtaken either by Parliamentary legislation or by the Human Rights Commission’s challenge. However, it is worth placing this in context. The interface between politics and law in the UK has been controversial in recent years, with perceived judicial expansiveness under the Human Rights Act 1998, at the expense of political institutions, coming under particular scrutiny. In Northern Ireland, that interface has been controversial for entirely different reasons. In his judgment in JR80 v Northern Ireland Secretary and The Executive Office [2018] NIQB 32, Mr Justice McCloskey (as he then was) said:
The indefinite moratorium afflicting the Executive and legislature of Northern Ireland featuring in the present case arises in other judicial review cases. One of the consequences of this moratorium is that members of the Northern Ireland population are driven to seek redress from the High Court in an attempt to address aspects of the void brought about by the absence of a Government and legislature… While this does not involve Judges encroaching upon the impermissible territory of political and legislative decision making, it skews the constitutional arrangements whereby this country is governed.
As the continued delay in commissioning abortion services has shown, there is no guarantee that constitutional arrangements will work smoothly even with the return of elected government. What is somewhat unusual about this particular impasse, however, is the alignment of the political and legal spheres in holding the Stormont authorities to account: while the Northern Ireland High Court scrutinises whether the Department of Health and Health Minister are acting lawfully, the Secretary of State intends to bring legislation himself to commission abortion services. In 2018, the Supreme Court provided extensive opinions on the issue of whether the abortion laws of Northern Ireland breached ECHR rights, despite having found against the Human Rights Commission on its standing (something later criticised as pushing at the boundaries of the separation of powers in the review report by the Independent Review of Administrative Law, [2.65]). The following year, Parliament intervened to reform the law altogether. This recognition that the correction of human rights defects sometimes overrides the strict boundaries of constitutional propriety may finally close a long, tortuous and exhausting chapter in Northern Ireland.
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