The Northern Ireland Human Rights Commission’s (NIHRC’s) judicial review challenging the failure to ensure abortion services are funded and commissioned is to be heard over two days in the Queen’s Bench Division of the Northern Ireland (NI) High Court, commencing on 26 May 2021. Leave was granted on the papers alone.

The application is against the NI secretary for failing to implement in full the recommendations of the UN Committee on the Elimination of Discrimination against Women’s (CEDAW’s) inquiry into abortion in NI1Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: report of the committee, CEDAW/C/OP.8/GBR/1, 6 March 2018. in line with NI (Executive Formation etc) Act 2019 (NI(EF)A) s9 and on human rights grounds against the Department of Health (NI) (DoH) for not commissioning and funding a service, and the NI Executive for not progressing a paper from the DoH seeking agreement to commission services (see February 2021 Legal Action 7).

The legal challenge appears to have concentrated minds in Westminster as on 23 March 2021, the NI secretary laid the Abortion (NI) Regulations 2021 SI No 365, taking powers to require NI ministers, including the first and deputy first ministers, NI departments, the Health and Social Care Board and the Public Health Agency to take action to implement the recommendations of the CEDAW report. The regulations came into force on 31 March 2021. The action was welcomed in a letter to the NI health minister, signed by 88 MPs from across the political spectrum, urging the funding of services at the earliest possible opportunity.

In a separate development, Paul Givan, a Democratic Unionist Party MLA and chair of the NI Assembly’s Justice Committee, has brought forward the Severe Fetal Impairment Abortion (Amendment) Bill, a private member’s bill seeking to remove non-fatal disability as a ground for abortion for all gestation periods. This bill is currently proceeding to the NI Assembly’s Health Committee having passed its initial stages through the Assembly. This development raises the constitutional issue of what happens where Westminster legislation introducing the recommendations from a UN Treaty monitoring body in full clashes with legislative reform commencing within a devolved administration.

Further, a judicial review challenging the equivalent provisions in Abortion Act 1967 s1(1)(d) has been lodged by Heidi Crowter and others against the Department of Health and Social Care in England. The application argues that provisions for terminations carried out without gestation limits on grounds of disability are contrary to articles 2, 3 and 8 of the European Convention on Human Rights alongside article 14 (freedom from discrimination). This case is due to be heard in the England and Wales Administrative Court over two days from 6 July 2021.

On the ground, a service continues to be available in NI, though it is largely confined to an early medical abortion service (up to nine weeks and six days) and emergency surgical interventions, while women in other circumstances are expected to continue to travel to England or rely on unregulated services available via the internet. This is not in line with the Abortion (NI) Regulations 2020 SI No 345, introduced by Westminster following the NI(EF)A.

NIHRC will shortly publish its monitoring report on what has happened since the reforms came fully into effect at the beginning of April 2020. The NI Abortion and Contraception Taskgroup (NIACT), a group of multidisciplinary healthcare and other professionals, recently published its own Report on sexual and reproductive health in Northern Ireland (March 2021) setting out a range of recommendations to ensure full access to sexual and reproductive healthcare services for NI.

The implementation of abortion reform in NI is once again coming to a head, though, as the private member’s bill illustrates this area of law is likely to be the ground for a war of attrition for some time to come.