Dr Jennifer Thomson and Dr Sophie Whiting, Lecturers, PoLIS.
Following the successful referendum campaign in the Republic of Ireland to repeal the 8th amendment, attention has now turned to Northern Ireland’s highly restrictive abortion laws. The last week has seen an emergency debate in the House of Commons on the issue, as well as a UK Supreme Court decision on whether the current legislation in Northern Ireland violates human rights law.
The legislative framework for abortion in Northern Ireland is starkly different from the rest of the UK. In Northern Ireland, abortion remains legal only where there is serious, long-term risk to the woman’s physical or mental health. This difference creates a situation where hundreds of women travel to England from Northern Ireland every year for abortions (on average between 700-1000). Until MP Stella Creasy’s intervention last year, which ensured that the cost of these procedures is paid for by the state, women had to fund payments to clinics themselves in addition to taking time off work, as well as paying for travel and accommodation.
Thursday’s Supreme Court ruling was instigated due to efforts from the Northern Irish Human Rights Commission (NIHRC). It saw a majority of judges agree that the current abortion law in Northern Ireland is ‘disproportionate and incompatible’ with the European Convention on Human Rights (Article 8). This was on the basis that the law in Northern Ireland prohibits abortion in the case of fatal foetal abnormality and where pregnancy is a result of rape or incest.
Despite this, a majority of Supreme Court Judges (4 to 3) considered that the NIHRC, does not have the standing to bring a case (as it was not itself a victim of any unlawful act). Such justification for the ruling suggests that the key issue for the Court’s decision was who brought about the legal proceedings, rather than whether or not the current law in Northern Ireland undermines human rights. Indeed, the Court was clear to show that they considered the current legal situation incompatible with existent law.
As we show here, what at first glance appears to be a very specific issue related to the smallest region of the UK, in fact has much to tell us about party politics, devolution and the continued complicated picture of the UK constitution. Here we focus on three take-home messages from the last week.
Northern Ireland’s proximity to current Westminster politics makes change difficult
The largest political party in Northern Ireland remains the Democratic Unionist Party, currently propping up the Conservative government at Westminster. The DUP are strongly socially conservative, and have stood in the way of efforts to extend marriage rights to same-sex couples in Northern Ireland. As seen in this week’s emergency debate in parliament, the party are also anti-abortion, and have been against any attempts to make termination of pregnancy less restricted in the region. In the debate DUP MPs made repeated reference to “unborn children”. Sammy Wilson MP was also keen to reiterate that “Our solution is that since this is a devolved issue it will be decided by, and reflect the views of, the people of Northern Ireland.” With this strength of feeling on show from the DUP at Westminster, both against liberalisation and the national parliament’s involvement, an intervention from the Conservatives appears unlikely.
As with most contemporary political issues, Brexit plays an important role here too. The DUP are clear that they do not want Northern Ireland to be treated differently from the rest of the UK in a future Brexit deal. The Conservative-DUP confidence and supply deal and the ten DUP MPs may be key to Theresa May’s ability to provide a smooth Brexit transition. Furthermore, exactly what shape the Northern Irish border will take following the UK’s withdrawal from the EU remains to be seen, especially if the UK wishes to continue trade with Ireland at its present rate. How the Conservatives will keep the DUP onside yet also provide EU negotiators with a feasible border strategy is not yet clear.
In light of this complex situation, and the manner in which the region has become thrust to the front of UK politics in a way rarely seen in recent years, it is difficult to imagine movement on the issue of abortion. With Direct Rule essentially occurring at this point in all but the name, there is little that can happen to address abortion law from within Northern Ireland. Equally, given how important the DUP are to Conservative rule, and how complex the issue of the Irish border is proving to Brexit negotiations, it appears unlikely that the UK government will want to spend the time or political will to address the anomaly of Northern Ireland’s restrictive abortion laws.
Whether abortion is or isn’t devolved is a complicated issue
The Supreme Court ruling may not have upheld the case, but it did unequivocally show that abortion law in Northern Ireland is incompatible with human rights law. The UN CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) Committee has also called on Westminster to act on this issue in its examination of the UK, as recently as February this year. As the national Parliament, Westminster is signatory to the Convention and holds overall responsibility for its implementation. Yet, when critiqued on this in the past, the UK government response has very much moved this to the realm of Stormont and devolved politics, rather than to encourage movement at Westminster.
As the Supreme Court judgement shows, responsibility for this issue falls awkwardly into the cracks of the UK’s devolved constitutional set-up. The Court clearly argued that the situation in Northern Ireland contravenes human rights law, but whose place is it to step in and act, particularly when the Assembly is suspended? Given the complicated picture for Northern Irish politics at Westminster outlined above, and the need for the government to keep the DUP onside, it seems unlikely that they will play their sovereignty trump card here and force Northern Ireland to change its abortion laws.
Party politics and policy in Northern Ireland around this issue have changed considerably
Whilst Ireland’s referendum has certainly shone attention on abortion rights north of the border, the Supreme Court ruling has its origins from within the Northern Ireland Assembly.
Back in early 2016 an amendment was tabled by Stewart Dixon (Alliance Party) to a Justice Bill to allow abortion in the case of fatal foetal abnormality. After a heated debate at Stormont the amendment was defeated by 59/40. Unsurprisingly, the DUP provided the most vocal opposition to the amendment, arguing that it entered the ‘dangerous territory of eugenics’ and proposed the establishment of a working group to make recommendations on how the issue of fatal foetal abnormality should be addressed. The proposal to set up a working group on the issue was criticised as a tactic to delay decision-making on abortion reform until after the May 2016 election by the UUP, whilst Sinn Fein MLA Catriona Ruane questioned how a report in six months time will help the plight of women in the ‘here and now’.
Whilst this amendment was comfortably defeated, the political and social dynamics in Northern Ireland have altered drastically. If we imagine an optimistic scenario where the Northern Irish Assembly is back up and running, what would this mean for possible movement on abortion legislation?
Following elections in March 2017 the make up of the Northern Irish Assembly would be very different to what it was at the time of the debate on the Justice Bill in 2016. Most crucially, whilst the DUP share of seats have gone down, Sinn Fein’s have gone up - resulting in a one seat difference between the parties.
Having previously been opposed to the liberalisation of abortion on the island of Ireland, Sinn Fein are expected to support a change to bring party policy in line with the predicted changes in the Republic at their annual conference later this month. Sinn Fein have also adopted support of same sex marriage as a key policy issue in recent years. Whilst the party have previously been happy to maintain a status quo on abortion, changes in the Republic and the evolution of equality rights as a party political issue means it would be difficult for them to ignore in a reformed Assembly. Following the announcement of the referendum results in Dublin castle, Sinn Fein President Mary Lou Macdonald and its leader in Northern Ireland, Michelle O’Neil, held aloft a sign from the crowd which said ‘The North is Next’. The party appears eager to own the issue of abortion liberalisation, and is likely to encourage change in a future iteration of Stormont, as far away as that may seem.
Conclusion
In short, political avenues for abortion change look weak. The Assembly is suspended, the socially conservative DUP are propping up the government at Westminster, and exactly which institution can (or wants to) enact legal change is up for debate. In the midst of this confusing picture, it is important to remember exactly what is at stake here. Lord Kerr, in the Supreme Court ruling, captured the wrongs that Northern Irish women face: “They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire.”
Following the Supreme Court decision, a Northern Irish woman who suffered a pregnancy with a fatal foetal abnormality and had to travel to England for a termination, Sarah Ewart, is now planning to take a case to the High Court in Belfast. It seems that the situation in Northern Ireland will only be changed by one woman, perhaps others, coming forward and publicly discussing the injustice she has experienced. Why must women who have been wronged act to change this, and not the institutions that are supposed to represent them and protect their rights? As Lord Kerr wrote in his judgement, ‘What is that, if not humiliation and debasement?’
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