Fran Amery offers an overview of the recent amendment to liberalise abortion law in Northern Ireland and explains why, despite there still being ways that change could be blocked, the development shows the strength of feeling about this issue in Parliament.
On 9 July, an amendment was successfully attached to the government’s Northern Ireland (Executive Formation) Bill requiring the government to act to liberalise abortion law in Northern Ireland if the Assembly does not reconvene by 21 October. The amendment passed by a huge margin, with 332 votes to 99. MPs also voted to extend same-sex marriage legislation to Northern Ireland. While the Bill is not yet law, it is considered unlikely that these amendments will be overturned – a huge achievement in the current Parliament, given the considerable influence of the anti-abortion and anti-LGBT DUP over the government.
Background to the amendment
The abortion amendment, proposed by Labour MP Stella Creasy, requires the Secretary of State to introduce measures giving effect to the recommendations of a 2018 report by the UN Committee on the Elimination of Discrimination against Women (CEDAW). The CEDAW report found that the UK government was violating human rights by restricting access to abortion in Northern Ireland, and made a number of recommendations for liberalisation. The case was bolstered by a UK Supreme Court decision later that year examining the legality of Northern Irish abortion law. As the case had not identified an individual who had been harmed by the law, the Supreme Court determined that there was no jurisdiction to act. However, the majority of judges agreed that the lack of access to legal abortion in Northern Ireland was incompatible with European human rights law, and a fresh case has since been brought in the name of the campaigner Sarah Ewart.
This has all taken place in the absence of a sitting Assembly. The Assembly was dissolved in January 2017 following the collapse of the power-sharing arrangement between the DUP and the second-largest party, Sinn Féin, and subsequent talks have failed to result in a deal. Meanwhile at Westminster, Cabinet divisions over abortion in Northern Ireland have been inflamed, with high-profile Conservative ministers breaking rank to speak out against existing law.
Abortion as a human rights issue
The CEDAW report – and the associated framing of abortion as a human rights issue – allowed proponents of reform to argue that the normal concerns of devolution could be bypassed, both morally and technically: human rights are not a devolved issue. Supporters of the amendment asserted that, in the absence of a sitting Assembly, Westminster was morally obligated to act. Others pointed to the need to hold up the UK’s international obligations, including human rights, even when the Assembly is sitting, and suggested that abortion reform could be a ‘treaty obligation’.
These claims placed opponents of decriminalisation on the back foot. Many vocal opponents of the amendment are avowedly pro-life, or at least in favour of further legal restrictions on abortion in the rest of the UK. However, despite this position they have found themselves unable to defend existing law from the allegation that human rights are being denied, instead resorting to technicalities. One deflection tactic has been to assert that CEDAW’s guidance is not legally binding, and that therefore there is no need to act (the pro-life MP Fiona Bruce has repeatedly dismissed CEDAW as a ‘minor UN sub-committee’). Another has been to claim that ‘no woman has been sent to prison for an abortion-related offence’ (as Creasy retorted, some women have already been prosecuted for procuring abortions, and a woman is currently facing a jail sentence for buying abortion pills for her teenage daughter). These arguments did not sway many MPs.
What the amendment does and doesn’t do
The recommendations of the CEDAW report are extensive. The report proposes, first of all, repealing sections 58 and 59 of the Offences Against the Person Act (OAPA) 1861, which criminalise abortion. This would not only affect Northern Ireland, but also England and Wales, where – in spite of exemptions provided by the Abortion Act 1967 – there are still criminal sanctions attached to abortion. Further, the report recommends legislating to allow for abortion in cases of rape, incest, and severe foetal impairment, as well as in any case where there is a threat to the physical or mental health of the person seeking abortion. If abortion regulation in Britain is anything to go by, this latter recommendation could have wide-ranging effects, potentially legalising most abortions in practice. The report also makes a host of other recommendations for the promotion of sexual and reproductive rights in Northern Ireland.
The wide-ranging nature of the recommendations hopefully removes any wiggle room to introduce laws which only legalise a tiny number of abortions. There are, however, some cautions. The Minister for Northern Ireland, John Penrose, confirmed in the debate that the government would implement the amendment if passed, but argued the ‘technical point’ that it may prove difficult to have appropriate regulations in place by the 21 October deadline. Penrose also suggested that repealing the relevant sections of OAPA ‘is not necessarily the route we have to go down’, raising the possibility that the wider implications of the CEDAW recommendations for the rest of the UK might be contained.
There is also the question of what happens if the Assembly reconvenes before the deadline. In this case, Stormont will not be legally obliged to change law relating to abortion or same-sex marriage. Nonetheless, reform on same-sex marriage looks likely, as the DUP no longer has the numbers to block reform in the Assembly, and does not have enough backing from other parties. This is not the case with abortion. If Westminster does not manage to get new regulations in place by 21 October, the likelihood of change being blocked increases further.
The final caution is that even if CEDAW recommendations are implemented, this may not result in abortion being as accessible in Northern Ireland as it is in the rest of the UK. Legalisation does not prevent abortion provision being stifled through measures such as funding cuts or stringent regulations on clinics which restrict their scope to operate. The example of Canada, where abortion is completely decriminalised at the federal level, is instructive in this regard: despite decriminalisation, individual provinces are able to impose practical barriers on service provision which have resulted in massive disparities in abortion access across the country. When it reconvenes, Stormont could similarly introduce legislation to render abortion legal in theory, but difficult to access in practice.
None of this is to diminish the achievements of those behind the amendment. Many people (myself included) previously considered it vanishingly unlikely that such a measure could be passed in the current Parliament. That it has is testament to the political acumen of Creasy and her allies in attaching this amendment to government legislation, as well as to the strength of feeling – cutting across party lines – about this issue in Parliament. But this should be considered the beginning, not the end, of the fight.
Fran Amery (@fran_amery) is a Senior Lecturer in Politics at the University of Bath.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).