UK government doubles down on N Ireland abortion regulations

Photo Credit: Karim von Orelli via Flickr (CC BY-NC 2.0)

While saying that abortion regulation is a devolved issue, the British Minister of State for Northern Ireland emphasized at Westminster Thursday that any local changes to the region’s abortion law would have to comply with human rights conventions.

Earlier in the week the Northern Ireland Assembly passed a non-binding motion rejecting the imposition of abortion regulations by the Westminster parliament.

“We hope that the regulations provide a solid framework for abortion services to be provided within Northern Ireland, although I appreciate that this remains a devolved issue and the Assembly can amend the regulations in future, subject to the usual Assembly and other procedures, including compliance with the European convention on human rights,” Robin Walker, the Northern Ireland minister, said June 4 while answering questions from members of parliament.

“If the Executive and Assembly were to legislate for an alternative approach, it would still be required to be human rights and convention-compliant,” he added.

The Abortion (Northern Ireland) Regulations 2020, which came into force March 31, allow elective abortions up to 12 weeks of pregnancy; abortions up to 24 weeks in cases of risk to the mother’s physical or mental health; and abortion without time limit in cases of severe fetal impairment or fetal fetal abnormality.

Previously, abortion was legally permitted in the region only if the mother’s life was at risk or if there was risk of long term or permanent, serious damage to her mental or physical health.

The new framework was adopted to implement Westminster’s Northern Ireland (Executive Formation etc) Act 2019, which decriminalized abortion in Northern Ireland and placed a moratorium on abortion-related criminal prosecutions, and obliged the UK government to create legal access to abortion in the region by March 31.

The NI EF Act required that the recommendations of a UN report on the Convention on the Elimination of All Forms of Discrimination against Women be implemented.

Walker maintained June 4 that “The Government are … under a clear statutory duty to allow for access to abortions in cases of both severe foetal impairment and fatal foetal abnormalities, and this is what we have delivered … We consider the regulations in this regard to be compatible with the requirements under the United Nations convention on the rights of persons with disabilities.”

The regulations will be debated in a House of Commons Committee June 8, and afterwards in the House of Lords.

Thursday’s questions about the regulations were opened by Jeffrey Donaldson, a member of the Democratic Unionist Party, Northern Ireland’s leading pro-life party.

Donaldson urged that “the Government should withdraw the regulations, respect the fact that devolution has been restored and, rather than seek to further undermine devolution, allow the Northern Ireland Assembly its rightful place to legislate on its own abortion law.”

He noted that the regulations’ provision for abortion in cases of severe fetal impairment “was not even required by CEDAW.”

MPs who participated in the discussion were divided over the regulations. Of the nine members of the governing Conservative Party who asked questions of Walker, six expressed support for the regulations, or a more liberal provision of abortion access.

Two members of the Labour Party expressed support for the regulations, as did one Liberal Democrat from a Scottish constituency, while one Labour Party member spoke in favor of devolution and handing the matter over to the Northern Ireland Assembly. Four DUP members voiced their opposition to the regulations.

Ian Paisley Jr commented that CEDAW does not require legislation for a full-term abortions, disability abortions, or sex-selection abortions, yet “that is that what is going to happen in Northern Ireland as a result of what has occurred in this place.”

Carla Lockhart, also a member of the DUP, commented that “the Government…continue to ride roughshod over the devolved Administration in Northern Ireland. They are discriminating against people who have non-fatal disabilities and going far beyond their legal requirement.”

“Will the Minister recognise the severe offence that the regulations cause to people with disabilities and also that the clear will of the devolved institutions is that the regulations are not wanted in Northern Ireland?” she asked. “What is the Minister’s message today to Heidi Crowter, who says that she feels she should not exist in this society if the regulations go ahead? … Both lives matter. It is not just about women’s health, but about both lives. It is not the Government’s right to impose such liberal abortion laws on Northern Ireland that will see abortion up to birth for disability.”

Walker responded that “nobody in the House wants to regulate or legislate in any way to the detriment of people with disabilities. We rightly have a huge body of legislation in this country to protect the rights of people with disabilities. It is not for the Government—and it is not the approach we take in the rest of the UK—to list specific conditions that it may or not be decided constitute severe foetal impairment.”

He maintained that “Addressing [severe foetal impairment] was a specific requirement of the CEDAW report, which is why it is included in the regulations.”

The Northern Ireland minister said that “this Government believe in supporting the rights of people with disabilities and do not in any way see these regulations as impinging on those. The regulations mirror the law in the rest of the UK, where abortions are permitted in cases of severe foetal impairment and fatal foetal abnormality, with no time limit. The Abortion Act does not define what conditions fit within this meaning, but similarly, it is an individual’s decision based on proper medical assessments and advice and other relevant provision of information and support.”

Walker also noted that the government had sought to conform Northern Ireland’s regulations to those in the rest of the UK, noting that it had used “the legal basis that has been established in England, Scotland, Wales for this process and [was] ensuring that we stick to it as closely as possible, particularly on issues such as conscientious objection…However, our approach throughout the design of this framework is to ensure that the outcomes are as consistent as possible.”

He also said that “it is important that wherever possible we make sure the outcomes of the regulations in Northern Ireland are aligned with the outcomes in the rest of [Great Britain]. ​It is important both because it is the right thing to do fundamentally—as a Unionist I believe it is the right thing to do—and because the approach in the rest of the UK has been legally tested and found to be compliant with the relevant human rights law.”

And when questioned about devolution and the possibility of the Northern Ireland Assembly legislating on the problem, Walker responded that “it is in the hands of the Assembly to propose reforms and a way forward on the regulations, so long as it can do so in a way that is CEDAW compliant. I would be very happy for it to take that opportunity. There is nothing to prohibit it doing so, and it is a matter of regret that, having been in place for a number of months before the regulations came into force, it has not.”

“However, my firm understanding of the advice that the Government have received is that the legal obligations on us to ensure a human rights-compliant model in every part of the UK, including Northern Ireland, remain in place,” he added.

A legislation scrutiny committee of the House of Lords published in April a report which noted that the regulations are more expansive than were required by law.

Northern Ireland rejected the Abortion Act 1967, which legalized abortion in England, Wales, and Scotland; and bills to legalize abortion in cases of fatal fetal abnormality, rape, or incest failed in the Northern Ireland Assembly in 2016.

Northern Irish women had been able to procure free National Health Service abortions in England, Scotland, and Wales since November 2017. They are allowed to travel to the rest of the UK to procure abortions during the coronavirus outbreak.

The amendment to the NI EF Act obliging the government to provide for legal abortion in Northern Ireland was introduced by Stella Creasy, a Labour MP who represents a London constituency.