Calls increase for UK to allow Northern Ireland Assembly to legislate on abortion

Parliament Buildings Stormont Belfast home of the Northern Ireland Assembly Credit Stephen Barnes Shutterstock Parliament Buildings in Belfast, seat of the Northern Ireland Assembly. | Stephen Barnes/Shutterstock.

An English Member of Parliament and a US Congressman have joined calls for the British government to repeal the law dealing with abortion provision in Northern Ireland so the local government can legislate on the topic.

John Hayes, the Conservative MP for South Holland and The Deepings, and Chris Smith (R-NJ) have both urged that the region's abortion laws be referred to the Northern Ireland Assembly.

Section 9 of the Northern Ireland (Executive Formation etc) Act 2019 decriminalized abortion in Northern Ireland and placed a moratorium on abortion-related criminal prosecutions, and obliges the UK government to create legal access to abortion in the region by March 31.

It was passed while the Northern Ireland Assembly was suspended, but the legislature resumed meeting in January.

"Though it is right to celebrate this restoration, we should remain cautious, for the foundations of the devolution settlement in Northern Ireland remain fragile. As the Province is an essential part of the United Kingdom, the UK Government has an ethical, as well as a constitutional obligation to defend and strengthen these foundations. Turning a blind eye to this duty would be a fundamental mistake," Hayes wrote March 18 at Conservative Home.

"Just weeks ago we were celebrating the DUP and Sinn Fein putting aside differences to restore the assembly. Wouldn't it be sadly ironic then if the UK Government imposed a policy on Northern Ireland, overriding devolution in the process, that unites the majority of voters from both parties in their hostility to Westminster."

Hayes continued: "As many aspects of the proposed abortion framework go way beyond what is currently allowed in England and Wales, given the contrary views of the people in Northern Ireland, it seems likely this will be interpreted as the UK Government imposing its will on a reluctant part of the Kingdom which is doubtless disdainfully regarded by Whitehall's liberal elite as antediluvian."

Prior to the NI EF Act 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 British government held a public consultation on a proposed framework for the legal provision of abortion in Northern Ireland in November and December 2019. It proposed that elective abortions be available up to 12 or 14 weeks gestation.

It also proposed that "the gestational time limit in circumstances where the continuance of the pregnancy would cause risk of injury to the physical or mental health of the pregnant woman or girl, or any existing children or her family, greater than the risk of terminating the pregnancy" be either 22 or 24 weeks.

In cases of fetal abnormality, the government proposed that abortion without time limit be available. It also proposed that abortion without time limit be allowed where there is risk to the life of the mother or it is necessary to provent grave permanent injury to her physical or mental health.

Hayes noted that the government's proposal "went far beyond [the] limited legal requirements" of the NI EF Act.

"Quite why the Northern Ireland office officials chose to go so far beyond what Parliament wanted is a matter of speculation. Some say the Government might be using Northern Ireland as a 'guinea pig' to test policies before implementing them in England," he wrote.

The MP noted that there is not "public demand in Northern Ireland for this greatly expanded abortion framework."

The region rejected the Abortion Act 1967 that 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.

Hayes proposed that "simplest way to stop the UK Government infringing on the devolution settlement is to repeal Section 9," which would return "full control to the devolved administration."

He warned that "feeding the feeling that Westminster is using Northern Ireland to test policies before implementing them in England could fuel Irish nationalism."

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"Rather than imposing a policy that is not being applied anywhere else in the Union, we should limit the changes to only those that are legally required, or repeal Section 9 altogether."

Hayes concluded that "To re-empathise the Government's commitment to the devolution settlement – the bedrock of the peace agreement in Northern Ireland – the Northern Ireland Office must repeal section 9 of the Northern Ireland (Executive Formation etc) Act, or – at the very least – not go beyond what is legally required while abortion is fully devolved to Northern Ireland and the new Assembly's authority is honoured."

And Rep. Chris Smith wrote to Brandon Lewis, Secretary of State of Northern Ireland, that "imposing a liberal abortion regime upon Northern Ireland shows a contempt for the Good Friday Agreement's devolution provisions, and weakens the entire agreement, which is the framework for the fragile peace that Northern Ireland has known."

Smith's letter, in which he was joined by Rep. Vicky Hartzler (R-Mo.), was reported in the Belfast Telegraph March 16.

The US Representatives wrote that "imposition of Section 9 - which provides for a far more liberal abortion regime than currently exists in the other constituent parts of the United Kingdom ... runs counter to the fundamental democratic principles of self-governance and self-determination."

They encouraged Lewis to "let Northern Ireland work this issue out through its own representative Assembly".

"Abortion on demand is not the will of the people in Northern Ireland, and if it were, Northern Ireland has a duly constituted Assembly by which it can balance equities and legislate on the matter," Smith wrote.

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In January, a newly-elected MP for a Northern Irish constituency also urged that section 9 be repealed.

"I want today to make the point to this House, on behalf of the many thousands of people across Northern Ireland who take a pro-life stance, that we want to repeal section 9 with immediate effect and allow for the Northern Ireland Assembly to debate, discuss and evidence-gather on this emotive issue," Carla Lockhart said Jan. 8 in the House of Commons in Westminster.

Lockhart, a member of the Democratic Unionist Party, was elected MP for Upper Bann in the 2019 UK general election.

"It is imperative that I speak on this to attempt again to highlight the anger, disappointment and frustration concerning the change in abortion laws that have been foisted upon the people of Northern Ireland," Lockhart stated. "These changes came in the most roughshod way, with complete contempt for the devolved Administration and the views of the people of Northern Ireland."

Lockhart stated: "I want a society in Northern Ireland that values life, and I want to see services that will help women choose life … help us create a culture of choosing life." She asked for government provision of a perinatal palliative care center, a maternal mental health unit, and better childcare services.

Lockhart responded to the proposed framework saying that "it is incomprehensible that the Government, knowing that abortion was a devolved matter, has published consultation proposals to introduce changes which go far beyond what has actually been required by Parliament."

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.

In October 2019, the High Court in Belfast had ruled that the region's ban on the abortion of unborn children with fatal abnormalities violated the UK's human rights commitments.

Northern Irish women have been able to procure free National Health Service abortions in England, Scotland, and Wales since November 2017.