Abortion court hearing: NIO has no power to ‘boss people about’ and impose new laws on Stormont

The Secretary of State has no legal power to “boss people about” by directing the commissioning of abortion services in Northern Ireland, the High Court heard on Monday.

By Alan Erwin
Monday, 4th October 2021, 12:27 pm
The High Court building in Belfast
The High Court building in Belfast

Counsel for pro-life campaigners also argued that Stormont is not duty-bound to comply with any edicts issued by Brandon Lewis.

The Society for the Protection of Unborn Children (SPUC) is seeking a judicial review of regulations which allegedly gave Mr Lewis authority to step in.

The proceedings represent the latest stage in an ongoing battle over Northern Ireland’s abortion laws.

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In 2019 MPs at Westminster liberalised the regime during a period when the power-sharing administration had collapsed.

Despite the move to decriminalise terminations, a centralised model for providing services has yet to be put in place.

Earlier this year judgment was reserved in a separate challenge by the Northern Ireland Human Rights Commission to the ongoing delay.

Amid the continuing impasse, Westminster directed the Department of Health in July to set up full termination services by no later than March next year.

But SPUC is contesting the legality and power to make the move under the Abortion (Northern Ireland) Regulations 2021.

The organisation insists that only elected representatives in Northern Ireland should make decisions on the issue.

Opening its case based on constitutional arrangements under the Good Friday Agreement, John Larkin QC cited the English Revolution of 1688.

“If the constitutional change affected by that revolution means anything, it’s that Ministers of the Crown can’t force people to act unless there’s a legal obligation on them to require the action and compel the action,” he said.

Mr Justice Colton was told that the regulations have a “bit missing” - either in enabling the Secretary of State to make the order or creating a duty to comply.

“Here we simply have a Minister of the Crown issuing a direction, no status is given to the direction, and no-one is obliged by law to respond in the terms of the direction,” Mr Larkin contended.

“In the absence of that, the rule or requirement is precisely that, to ignore it.

“The Minister of the Crown cannot, to put it colloquially, boss people about unless the law gives them power to do it, and requires people to act in accordance with his edicts. It doesn’t.”

He claimed there was “a certain sleight of hand” around the legislation, and that the Secretary of State would have little available sanctions if Stormont ministers treated them as “waste paper”.

“The NIO (Northern Ireland Office) may wish that such provision had been made, they may be bitterly regretting it now, but the fact is in these regulations as they currently stand, there is simply no obligation to comply with them,” counsel said.

Mr Larkin argued that the Northern Ireland Office may regret not inserting provisions, but the regulations feature “an absolutely fundamental lacuna”.

He submitted: “When one realises that’s all there is (to them) the gap becomes screamingly obvious.

“There is simply no duty to comply with these, and that is significant in terms of whether or not they change the law of Northern Ireland. They don’t.”

The hearing continues.