Lord Morrow and Baroness O’Loan: Parliament’s new Northern Ireland abortion law undermines Stormont
In July the Westminster Parliament treated Northern Ireland with a level of contempt never witnessed before, imposing very controversial abortion law changes on Northern Ireland, even though they knew that the matter was devolved and that the democratically elected Northern Ireland Assembly had voted as recently as 2016 by a clear cross community majority not to change our abortion law.
Every single Member of Parliament representing a Northern Ireland constituency who takes their seat in Parliament voted against the clause.
Those behind the change argued that it was justified because they were responding to a legal human rights imperative. They said that the UN had said that the law in Northern Ireland was not human rights compliant.
This was not true. It was a small unelected, non-judicial committee established to monitor the application of the UN Convention on the Elimination Discrimination Against Women (CEDAW), which had indeed made comment about our abortion laws.
There are numerous committees of this kind producing numerous reports criticising member states but they are in no way binding. What made the suggestion that this report created an imperative for action and overturning devolution particularly problematic, however, is that fact that the committee’s comments on abortion were in any event ultra vires.
As the expert legal opinion of Mark Hill QC points out, the CEDAW Convention, which defines the remit of the CEDAW Committee, far from setting out an international right to abortion, does not even mention abortion.
In short Parliament was persuaded to dispense with the usual conventions that protect democracy — like respect for devolution — on the basis of an untrue statement. There was no legal human right imperative to change our abortion law in line with the CEDAW report.
Until the vote in July, the government had very properly said that it would not support attempts by Parliament to change abortion law in Northern Ireland because of devolution.
The law was forced through by MPs from England, Scotland and Wales without any consultation or impact assessment.
The views of the NI MPs, who were unanimous in speaking and voting against the proposed change in the law, were completely ignored even though they were the only MPs who actually represented the jurisdiction that would be impacted by the proposed change.
When democracy becomes about sheer weight of numbers rather than about numbers qualified by constitutional rules, we move from liberal democracy to a crude form of majoritarian democracy.
In this deeply troubling situation, the British government has now chosen to make things much worse.
When Parliament passed Section 9 of the Northern Ireland Executive Formation Act 2019, the government was required to consult on how abortion should be provided in this country and to draft secondary legislation to introduce a limited form of abortion.
Tens of thousands of people have taken to the streets to demonstrate repeatedly in the past three months against the proposals. The British government, ignoring all this, and its previous statements about the need to respect devolution, has been conducting a consultation (which closes on 16 December) about how abortion should be provided in Northern Ireland which proposes far more radical changes to abortion law than Parliament actually requires.
This is quite simply extraordinary.
Under the new law the government is not required to do anything other than allow abortion in cases of rape and incest, in cases of fatal foetal abnormality and when there is a threat to women’s health. We and many thousands of others in Northern Ireland hold the view that this is fundamentally wrong, and that our existing law should not have been changed in such a ruthless and cavalier manner in a matter of days with no regard to the Good Friday Agreement and the consequential devolution settlement. We believe that very child has a right to life.
Yet the government is proposing changes that go way beyond what is required. Specifically they want abortion on request to 12/14 weeks and then abortion on the basis of the social clause from the 1967 Abortion Act (which is the ground for 98% of abortions in England and in the past ten years has not resulted in a single abortion request being refused) until 22/24 weeks.
This is quite extraordinary. The questions in the consultation document are so phrased that, for example, a respondent to the consultation is asked whether abortion should be freely available up to either 12 or 14 weeks. There is a choice of two boxes to tick — one for 12 weeks, one for 14 weeks. There is no box for neither.
The consultation is riddled with vagueness, suggesting for example that abortions might be carried out by ‘health professionals’ rather than doctors but not specifying what kind of health professional. This consultation document is not fit for purpose, as a consequence of its lack of clarity.
All this is happening at a time when Northern Ireland’s health services are in crisis and over 306,000 people are on waiting lists for hospital appointments – almost 20% of our population.
Unless the government wants to completely undermine devolution it cannot be seen to wilfully and completely unnecessarily introduce legal changes that go far beyond what Parliament has actually required, especially when everyone knows that the more limited changes required by Parliament were the consequence of a vote that was not only contrary to devolution but where every Northern Ireland MP who takes their seat in Westminster sought to block the change.
In this context the government must withdraw this consultation document and start again.
After the election we will probably have a functional government that commands a healthy majority in the House of Commons.
In this context the best way forward would be for Parliament to repeal the new law and to redouble efforts to reestablish the assembly to make legislation on this issue if it chooses to do so.
l Lord Morrow is a DUP peer. Baroness O’Loan is a crossbench peer