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'All eyes are on the UK government': Who'll be the first to make moves to change NI's abortion laws?

A Supreme Court decision made today has led to continued calls for a change to Northern Ireland’s abortion laws.

Pro-choice groups and supporters protested in London, UK, on 5 June 2018 to regulate abortion in Northern Ireland.
Pro-choice groups and supporters protested in London, UK, on 5 June 2018 to regulate abortion in Northern Ireland.
Image: SIPA USA/PA Images

MORE PRESSURE HAS been piled on legislators to change Northern Ireland’s abortion laws after a UK Supreme Court decision today.

This is the latest in a number of recent moves that have put the focus back on the laws in Northern Ireland, particularly since Ireland voted to the repeal the Eighth Amendment.

On 26 May at the announcement of the referendum results at Dublin Castle, Sinn Féin president Mary Lou McDonald and Michelle O’Neill held up a sign that said “The North is Next”.

Since that day, pressure has continued to be piled on Theresa May – and on those who should make up the currently collapsed Northern Ireland Assembly. But who will make the first move to bring about change (if any)?

Theresa May has said that abortion is a matter for the devolved Stormont Assembly in Belfast. However, the assembly has been suspended for a year and a half due to a dispute between the DUP and Sinn Féin over the cash-for-ash scandal.

After the result of the referendum on the Eighth Amendment, DUP leader Arlene Foster said that her party (which is a firmly against a change in abortion law) is taking note of the results.

“The legislation governing abortion is a devolved matter and it is for the Northern Ireland Assembly to debate and decide such issues,” she said. “Some of those who wish to circumvent the Assembly’s role may be doing so simply to avoid its decision.” She said she wanted to see the Northern Ireland Assembly restored and “put no preconditions on the immediate establishment of an executive”.

Back in 2016, the issue of abortion laws had been discussed by the devolved Northern Ireland Assembly. It voted in February of that year against legalising abortion in cases of fatal foetal abnormality, rape or incest, and anyone who unlawfully carries out an abortion could be jailed for life.

But Sinn Féin, the SDLP and the cross-community Alliance Party back overturning the ban, and there are a number of groups campaigning for a change in law.

The Northern Ireland Secretary of State, Karen Bradley, told the House of Commons after the decision today that the analysis and comments from the court “will be clearly heard” by the house and politicians in Northern Ireland.

The current laws in Northern Ireland mean that women cannot access an abortion unless there is a serious risk to their life. The British abortion law that was brought in in 1967 does not extend to Northern Ireland.

For a change to take place, one of two things needs to happen: either the Northern Ireland Assembly reforms and makes moves to bring in a change of legislation, or the UK Parliament legislates for abortion reform in NI in the absence of an Aassembly.

The reason this is an issue for Theresa May is because there is currently no Assembly. And May has said she sees abortion as a ‘devolved issue’, meaning she wants the Assembly to deal with it.

To complicate things even further, May had to strike a deal with the DUP in order to prop up her Tory government. So she risks damaging her relationship with them if she tries to force through a change in legislation in the north. And so far, she seems very reluctant to do that.

A referendum doesn’t need to take place for a change to be made to the law in Northern Ireland – unlike here in Ireland.

Sinn Féin leader Mary Lou McDonald said today that her party wants a single legal standard and standard of care right across the island of Ireland – and for it to happen as quickly as possible.

She said that Sinn Féin favours a model where legislation would be applicable in the south and introduced through the assembly. “We are a small island. It doesn’t make sense to have two differing or varying legislation… on this small island.” She said the level of public engagement on the issue is “almost at an unprecedented level”.

The DUP’s Jeffrey Donaldson, meanwhile, said that the DUP is ready to restore the Executive – it just needs Sinn Féin to join with the other parties.

The DUP stands ready to enter an Executive with no-preconditions and if the Secretary of State will convene a meeting of the Assembly we will appoint Ministers to take on the responsibilities that our mandate has given us. The people of Northern Ireland have waited long enough.

Debate

On Tuesday of this week, UK MPs debated abortion laws in the House of Commons, with a focus on Northern Ireland. Labour’s Stella Creasy opened a discussion on the repeal of an 1861 law that makes abortion illegal, but from which England, Wales and Scotland have long been exempt. But not everyone believes that repealing that particular law is the way to bring loosen abortion law in Northern Ireland, hence the push for the assembly to be reformed so it can deal with the issue.

Opposition Labour leader Jeremy Corbyn has already warned Foster that, in the absence of a functioning assembly, “clearly the UK parliament has responsibility to adhere to human rights standards”.

But the Guardian reported on Monday Theresa May told MPs at a private meeting that the current political climate “made change impossible” – despite the threat of more pressure from the backbenches to change the law in Northern Ireland.

The paper said that it was made clear that the British government believes that Stormont should deal with the situation when the assembly is restored. But the DUP is strongly against bringing in reformed abortion laws in Northern Ireland.

Today’s case

Britain Northern Ireland Abortion Ban Campaigner Sarah Ewart, right, enters the Supreme Court in London Source: Frank Augstein

The Northern Ireland Human Rights Commission (NIHRC) attempted to bring a case forcing a change in law. But it was told today in an appeal ruling at the UK Supreme Court that it does not have the standing to bring its case.

At the court, the judges said they had come to a majority view that the commission does not have the standing to bring the proceedings.

But the judges also said that legislators should look at the fact the judges decided in a majority view that in cases of fatal foetal abnormality, rape and incest Northern Irish abortion laws are not compatible with Article 8 of the European Convention on human rights and fundamental freedoms.

However, one of the judges, Lord Kerr, said that the comments are “not binding but worthy of close consideration by those in whose power it lies for the laws to be altered”. That shifts the focus back to May once again.

In their judgment, the judges said that in the case of rape “the majority considers that the current law is disproportionate in cases of rape and that the rights of the pregnant woman should prevail over the community interest in the continuance of the pregnancy”.

In the case of incest, “a blanket prohibition of abortion in cases of incest is not proportionate”.

They also came to a majority view that the law on abortion in Northern Ireland insofar as it relates to fatal foetal abnormality is not compatible with Article 8 of the European Convention on human rights and fundamental freedoms.

The judges said that “there is every reason to fear that violations of the ECHR will occur if the arrangements in place in Northern Ireland remain as they are”.

‘The issue won’t go away’

The NIHRC will continue its work in pushing for change. Les Allamby, chief commissioner of the Northern Ireland Human Rights Commission, emphasised that outside of court today when he said:

This issue is not going to go away. Ireland is about to reform its law on abortion and therefore it will remain in the public eye in the months to come. It’s time we in Northern Ireland looked at our abortion laws and made sure that they are human rights compliant.
Ireland abortion lawsPeople attend a People Before Profit protest calling of for provision of Abortion in Northern Ireland, at Belfast City Hall on 28 May.Source: Niall Carson

Asked what the next step would be, he said:

“Take stock, reflect on the judgement, see what is happening politically, politics is not a matter for us. See what the options are and take the matter from there.”

He said that “women’s voices have to be heard” on the issue.

Responses to the verdict came from across Ireland and the UK. Taoiseach Leo Varadkar said this afternoon:

“I think [abortion laws] really should be decided by the people who live in Northern Ireland and ultimately if we had an Assembly up and running that could be determined and you could have a vote in the Assembly. It really emphasises more and more why we need an Assembly up and running again in Northern Ireland.”

Sinn Féin’s Michelle O’Neill said that the judgement makes it clear that in cases of fatal foetal abnormalities, sexual crime and rape “that the current law in the north remains incompatible with the European Convention on Human Rights”.

Although the Human Right Commission appeal was dismissed, this was essentially a technicality and the court expressed the view that if an individual victim brought a case, a formal declaration of incompatibility would in all likelihood be made.

O’Neill said that the issue of abortion “is a very sensitive one. It’s an emotive issue. It’s an issue that demands compassion.”

“However, it’s also obvious that current legislation north and south is failing women and the status quo is untenable. So, it’s an issue we have to deal with but we have a responsibility to do so in a compassionate and caring manner.

Sinn Féin supports legislative change in the north. The first step in this process must be to end the criminalisation of women and through the repeal of Sections 58 & 59 of the archaic Offences Against the Person Act 1861.

She said that this legislative change should be brought about by locally elected MLAs and in the Assembly.

She said that in the absence of a local assembly and executive, the British Irish Intergovernmental Conference should meet as a matter of urgency under the terms of the Good Friday Agreement to deal with the issue.

Grainne Teggart, Amnesty International’s Northern Ireland campaigner, said that the decision today was “hugely significant and makes clear there is nowhere left for the government to hide on this issue”.

All eyes are now on the UK Government. Theresa May can no longer sit back and do nothing whilst countless women continue to suffer on her watch.
This must be the final nail in the coffin for Northern Ireland’s abortion ban.

She said that the Prime Minister must commit to reforming abortion law immediately, as “a failure to act would be a cruel betrayal of women”.

Sarah Ewart, a woman who had to travel to the UK for an abortion after being told her baby would not survive, intervened alongside Amnesty in the case. She said:

“This feels like a huge relief. Experiencing something as painful as I did and then going through the ordeal of the courts has been emotionally draining. I feel like we’re finally getting somewhere – that people are starting to realise that us women in Northern Ireland are being denied our basic rights. I hope this ruling means that things will change so no more women have to go through what I, and so many others, already have.”

Ewart, supported by Amnesty, will now be taking this case to the Belfast High Court, seeking the declaration of incompatibility that the Human Rights Commission was unable to obtain.

The court found that the Northern Irish Human Rights Commission did not have the power to bring these proceedings forward, as it was not itself a ‘victim’ of any unlawful act.

Teggart said: “We’ll now finish what we started by taking this to the Belfast High Court to demand it makes the final formal declaration.”

Alliance for Choice and the London-Irish Abortion Rights Campaign also released a statement today. Cara Sanquest of London-Irish Abortion Rights Campaign said: “This is a matter of utmost urgency. Women’s human rights are being breached on a daily basis.

Westminster must stop turning a blind eye to the human rights breaches which UK citizens in Northern Ireland are faced with, and stop turning a blind eye to its international human rights obligations. The onus is now on the government at Westminster to act, so that citizens across the UK have their human rights respected, not just those who live in Scotland, England and Wales.

The UK Supreme Court may not have given the campaigners what they wanted today – but perhaps they did in an unexpected way. With their words, they’ve shown that influential and important judges in the UK think that legislators do need to examine Northern Ireland’s abortion laws. The next move is up to not just Theresa May, but those who make up the Northern Irish Assembly that’s currently in a stalemate. As to who will make the first move, that’s all to play for.

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