Image from discovernorthernireland.com website

You may have seen in the news over the weekend that on Tuesday 2 June the Assembly is going to debate and symbolically vote on a particular aspect of the new Northern Irish abortion regulations. In order to explain what is going on, this blog will clearly and factually explain the story so far. 

A brief history of abortion in Northern Ireland

As the results of the referendum to repeal the 8th Amendment to the Constitution were being announced at the count centre in Dublin Castle, Sinn Féin leaders Mary Lou McDonald and Michelle O’Neill held up a homemade sign that simply said ‘The North Is Next’. This was referring to the fact that abortion was still largely illegal in the north, and that the sights of pro-choice campaigners were firmly set on liberalising abortion law there. 

Historically, abortion has been largely illegal in the north on the basis of two laws:

Offences Against the Person Act 1861 (which made it a crime to procure a miscarriage)

Criminal Justice Act (Northern Ireland) 1945 (which made an exception to the crime of ‘child destruction’ where an abortion was carried out ‘in good faith for the purpose only of preserving the life of the mother’)

Following the suspension of the Northern Irish Parliament in 1972, ‘direct rule’ from Westminster governed the north. Following the devolution of justice and policing matters, it was only in 2010 that abortion became a devolved issue – meaning that the Assembly once again had power to create its own laws in relation to this sensitive topic. During the years 2010-17, the Assembly overwhelmingly rejected any attempts to change the law on abortion. 

Recent developments

However, as you may have seen in the news, there was no functioning Assembly for three years (2017-20). Thus, the Northern Ireland (Executive Formation etc) Act 2019, was passed by the UK Parliament in Westminster for the primary purpose of extending the powers of the Northern Ireland Secretary of State. 

Significantly, pro-choice Labour Party MP Stella Creasy successfully proposed an amendment to this Northern Ireland Act as it was going through the Westminster Parliament. The amendment (a new section 9) meant that the 2019 Act would decriminalise abortion in the north (by repealing the Offences Against the Person Act 1861) if there was no functioning NI Assembly by 21 October 2019. 

The Assembly was not functioning by that date, and abortion was largely decriminalised then.

Additionally, Creasy’s amendment also required that the Secretary of State for Northern Ireland introduce regulations to govern the provision of abortion in the north by 31 March 2020. 

The process by which these regulations were created has been controversial:

–In the public consultation ahead of creating the regulations, 79% of all respondents opposed any change to the law in Northern Ireland. 

–The Attorney General for Northern Ireland, John Larkin QC, believes that the Secretary of State acted beyond his powers in introducing these regulations.  

–A House of Lords report had criticised the way in which these regulations were formed. 

The regulations (which mirror the worst elements of the Irish and UK abortion legislation) were announced on 25 March 2020, and have technically been in operation since 31 March 2020. 

The most disturbing elements of the regulations allow for abortion:

– up to birth in the case of any disability, and

– up to twelve weeks for any reason whatsoever.

Vote on Tuesday 2 June 2020

However, in a signifiant move, celebrated disability rights activist Heidi Crowter, who herself has Down’s Syndrome, publicly called on all MLAs to reject the parts of the new regulations which permit abortion for all non-fatal disabilities up to birth. Following this intervention, a number of MLAs secured an Assembly debate and symbolic vote on Tuesday 2 June, on a motion which welcomes Heidi’s intervention, and rejects abortion for non-fatal disabilities. 

Subsequently, Sinn Féin tabled an amendment to the original motion, rejecting the wording of the regulations in relation to abortion for non-fatal disabilities, but which leaves open the possibility for abortions for ‘fatal’ disabilities.

Whilst the vote is largely symbolic, it has the potential to send a critical message to Westminster MPs, and may mean that the regulations will still be amended, or better still, that Section 9 of the 2019 Act will be repealed. We live in hope.

Gavin