This week’s emergency debate on repealing sections 58 and 59 of the 1861 Offences Against the Person Act (to decriminalise abortion in England, Wales and Northern Ireland) represents a major shift in the Westminster response to the denial of abortion rights in Northern Ireland.
Although broader political motives are clearly at play, the serious consideration of the decriminalisation of abortion via Westminster is more than welcome after decades of increasingly complicit inaction. Legislating in this way could mitigate restrictions on abortion access in Northern Ireland which CEDAW have described as “grave and systematic” violations of the human rights of pregnant people.
In a highly-anticipated ruling this week, the Supreme Court decided that Northern Ireland Human Rights Commission did not have standing to bring a legal challenge, but still formed a majority view that the current law on abortion is incompatible with the European Convention on Human Rights, with Lord Kerr noting that the law “treats the pregnant woman as a vehicle and fails to attach any weight to her personal autonomy.”
The Supreme Court indicated that if an individual victim had brought the same legal challenge, the court would have issued a declaration of incompatibility under section 4 of the Human Rights Act 1998.
This would have placed further pressure on Parliament to address the lack of abortion provision in Northern Ireland.
Not as simple as “a devolved matter”
So what happens next? While many MPs declared support for abortion reform in Northern Ireland on Tuesday, some expressed reluctance to use their own legislative powers to bring it about. Secretary of State for Northern Ireland, Karen Bradley, threw the issue into the long grass by stating that legislating via Westminster would “disenfranchise 1.3 million citizens,” and we must leave abortion reform to Stormont.It is wrong to assume, as some seem to, that the people of Northern Ireland oppose abortion reform simply because two of the largest political parties—the DUP and SDLP—do so.
The 2016 NI Life and Times survey of over 1200 adults found that 71 per cent of respondents agreed that abortion should “should be a matter for medical regulation, and not criminal law.”
To refer to the will of the Northern Irish people as a reason not to legislate is therefore insincere at best.
On devolution and human rights, it is worth remembering two things: First, the UK government is the signatory to CEDAW. Second, the Northern Ireland Act 1998 contains provisions for the Secretary of State to ask NI Ministers to take action to implement treaty obligations.
Westminster retains the powers to legislate to comply with the damning CEDAW recommendations published in 2018.
Labour atonement
Sudden cross-party momentum behind repealing sections 58 and 59 of the OAPA reflects significant changes in the landscape of British politics since Hackney MP Diane Abbott tried to extend the 1967 Abortion Act to Northern Ireland in 2008, with a surge of political will triggered by Ireland’s decision to Repeal the 8th amendment late last month.It is doubtless true that a weak Tory government supported by 10 fundamentalist DUP MPs has provided Labour with an opportunity to use abortion reform in Northern Ireland as a show of strength in opposition.
Yet it ultimately matters little whether their commitment is motivated by the principle of advocating for human rights or by electoral ambition. The most relevant concern is when the impassioned speeches will translate into reform.
In the words of North Down MP Sylvia Hermon during the debate on Tuesday: how long are we going to have to wait for change?
Government brinkmanship
Theresa May, meanwhile, is walking a line between placating the DUP and calls within her party to bring Northern Ireland’s abortion law into line with international human rights standards.While pro-choice activists and politicians have redoubled their abortion reform efforts, the DUP have dug their heels in. Party chair Lord Morrow has warned Theresa May that the DUP could walk away from their confidence and supply deal if she permits Tory MPs to vote in favour of abortion reform in Northern Ireland. MLA Jim Wells stated on Radio Ulster that the DUP would use the petition of concern as a veto against abortion reform when Stormont resumes.
DUP intransigence on abortion reform is undeniable, and the nature of NI politics means that they have no electoral incentive to revise their stance in line with public opinion. (Even if the DUP, one suspects, has far too much to lose in future Brexit negotiations to walk away from its alliance with the Tories over abortion.) It appears, at least for now, that May and her cabinet will continue to rely on devolution as a get out clause.
Yet the deadlock cannot hold forever. One thing is for certain: activists will not let up, and as time goes on, will place yet more pressure on the UK government to intervene.
