The law on abortion in Northern Ireland changed on 22 October 2019. The Northern Ireland (Executive Formation etc) Act 2019 introduced these changes. This required the UK Government to introduce a framework, amongst other things, in respect of lawful access to abortion services in Northern Ireland.

The Government has already made the statutory instrument needed to introduce the framework, but it cannot continue in force unless both Houses of Parliament approve it by 20 June 2020. The House of Lords is due to consider the instrument, the Abortion (Northern Ireland) (No. 2) Regulations 2020  on 15 June 2020.

This blog provides background information on the legislative changes and summarises parliamentary scrutiny to date. It does not cover the ethical considerations of abortion.

Changes to Northern Ireland abortion law

The Northern Ireland (Executive Formation etc) Act 2019 (‘2019 Act’) changed the law on abortion in Northern Ireland. The 2019 Act came into force on 22 October 2019. Section 9 of the 2019 Act, amongst other things, required the UK Government to introduce regulations by 31 March 2020 that gave effect to certain recommendations set out in the United Nations Committee on the Elimination of all Forms of Discrimination Against Women report. This was in respect of lawful access to abortion services. Section 9 of the 2019 Act also repealed sections 58 and 59 of the Offences Against the Person Act 1861 (‘OAPA’) in Northern Ireland. The OAPA previously made it a criminal offence for persons to attempt to procure an abortion.

Convention on the Elimination of Discrimination Against Women

The Convention on the Elimination of all Forms of Discrimination against Women (‘CEDAW’) is an international treaty. It established an international bill of rights for women. Amongst other things, it provides the meaning of equality and how it can be achieved. The CEDAW is made up of 14 articles that cover a variety of issues, including human reproduction.

The UN General Assembly adopted the CEDAW in 1979. 193 member states of the UN have since ratified the CEDAW. The UK signed the CEDAW in 1981 and ratified it in 1986. The UK also signed up to the ‘optional protocol’ that provides women and groups the right to complain directly to the Committee on the Elimination of Discrimination Against Women (‘CEDAW committee’).

The CEDAW committee is made up of 23 experts on women’s issues from around the world. The CEDAW committee reviews national reports from states and looks at how the CEDAW is applied in those states.

In 2010, the CEDAW committee received submissions by Alliance for Choice, Family Planning Association and Northern Ireland Women’s European Platform, alleging that the restrictive access to abortion in Northern Ireland was in violation of the CEDAW. Following the submission, the CEDAW committee held an inquiry. The final report and recommendations were published in early 2018. The CEDAW committee found “grave and systematic violations” of rights under the CEDAW. The CEDAW committee made recommendations, including the repealing of sections 58 and 59 of the OAPA so that no criminal charges could be brought.

What the instrument does

The Abortion (Northern Ireland) (No. 2) Regulations 2020 will introduce a framework to implement the CEDAW recommendations. The Government has provided details of what the framework includes. An excerpt from the government guidance states:

The regulations allow for access to abortions without conditionality up to 12 weeks gestation (11 weeks + 6 days), to be certified by one medical professional that the pregnancy has not exceeded its twelfth week.

Abortions beyond 12 weeks gestation (11 weeks + 6 days) are lawful in the cases where:

  • the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman or girl, greater than the risk of terminating the pregnancy up to 24 weeks gestation (23 weeks + 6 days);
  • Severe fetal impairment and fatal fetal abnormalities without any gestational time limit; and
  • where there is a risk to the life of the woman or girl, greater than if the pregnancy were terminated, or where necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or girl, including in cases of immediate necessity without any gestational time limit.”

Parliamentary scrutiny of the instrument

The Abortion (Northern Ireland) (No. 2) Regulations 2020 is the second instrument of its kind. The first instrument, the Abortion (Northern Ireland) Regulations 2020, originally came into force on 31 March 2020 and was due to be debated by 17 May 2020 to remain in force as law. Virtual voting systems, introduced into Parliament because of the coronavirus pandemic, were not introduced in time for the regulations to be debated. Therefore, the Abortion (Northern Ireland) (No. 2) Regulations 2020 were laid and came into force on 14 May, revoking the earlier instrument. This provided Parliament with an additional 28 days to consider the instrument. Both instruments are near identical, with an amendment being made to a technical defect.

The House of Lords Secondary Legislation Scrutiny Committee (‘SLSC’) eleventh report of session 2019–21 drew the original regulations to the special attention of each House. In the SLSC’s sixteenth report of session 2019–21, it considered the No. 2 regulations. The SLSC referred to “suboptimal” administrative processes behind the regulations. An example used by the SLSC was the laying of the regulations in close proximity to the 31 March 2020 implementation period.

The SLSC considered the legitimacy of the No.2 regulations, following concerns raised by Lord Brennan QC and Ian Leist QC. The SLSC report also referred to several external submissions that had been received:

[…] we received […] ethical concerns from Dr Calum Miller (a medical ethicist at Oxford University). We have received further letters from MLAs Paul Givan and Carla Lockhart of the Northern Ireland Assembly who, among other issues, highlight the devolution position. We also received a joint submission from Senator Ronan Mullen and Carol Nolan TD of the Irish Parliament about the No. 2 Regulations’ wider implications for the Republic of Ireland. Sir John Hayes MP questions whether the maximum penalty for performing an abortion outside these [r]egulations should only be a level 5 fine, £5000, and describes it as out of step with the English and Irish regimes.

Northern Ireland Assembly objections

Section 9 was one of several sections in the 2019 Act that was only permitted to come into force if the Northern Ireland Assembly was not established by 21 October 2019. The Northern Ireland Assembly restarted in January 2020.

In June 2020, the assembly passed a Democratic Unionist Party (‘DUP’) motion to reject the regulations. Paul Givan, a DUP assembly member, is reported by the BBC to have said that the British Government had treated Northern Ireland “with contempt”. The assembly vote has no effect on the law.

On 4 June 2020, Sir Jeffrey Donaldson (DUP MP for Lagan Valley) submitted an urgent question in the House of Commons, asking for a government statement on the instrument. As part of this debate, Mr Donaldson stated that Parliament should not be voting on the instrument. He said that whilst Parliament had the right to legislate on abortion in absence of a functioning Northern Ireland Executive, it was wrong to continue now that the Northern Ireland Assembly had been restored. Robin Walker, responding on behalf of the Government, acknowledged the sensitivity but said that the statutory duty to legislate had not been removed with the restoration of the assembly.

Baroness O’Loan (Crossbench) has submitted an amendment to the motion that the House declines to approve the regulations because they:  

[…] (1) have been rejected by the Northern Ireland Assembly, (2) are legally flawed by being in breach of section 6 of the Northern Ireland Act 1998, (3) do not prohibit abortion on the grounds of non-fatal disability, (4) perpetuate stereotypes towards persons with disabilities, including Down’s syndrome, and (5) do not prohibit abortion on the grounds of sex selection during the first twelve weeks of gestation, as is the case in Great Britain, and therefore perpetuate negative stereotypes and prejudices towards women.

Lord Shinkwin (Conservative) has also tabled an amendment that the House declines to approve the regulations because:

(1) they are drafted in such a way as to promote the stereotype that those with non-fatal disabilities are worthy of less protection in law than those who are not disabled; (2) to that extent they do not comply with the recommendation in paragraph 85 of the [CEDAW committee report], in particular that legal grounds for abortion should be expanded “without perpetuating stereotypes towards persons with disabilities”; and (3) to that extent they are counter to the decision of the House on 17 July 2019 in amending the Northern Ireland (Executive Formation etc) Bill to implement the recommendations of paragraph 85 of that report.

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