Northern Ireland stands at the threshold of major reforms to its abortion laws to make them human rights-compliant alongside the introduction of equal marriage and civil partnerships for opposite-sex couples. All of these issues were preceded by legal challenges. Les Allamby sets out the background and the reforms envisaged.
The Northern Ireland Executive and Assembly have not sat since January 2017. As a result, decision-making has been left in the hands of senior civil servants, who have been reluctant to take decisions of any significance in the absence of ministers. Legislation had been put in place to extend the period for forming an Executive and to allow certain decisions to be taken in the absence of government ministers (the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018). The legislation was due for renewal in July 2019.
NI(EFe)A 2019 s8 also provided that, in the absence of such restoration in October, same-sex marriage and civil partnerships for opposite-sex couples will be introduced by 13 January 2020.
The Northern Ireland Executive was not restored by the deadline.
Abortion law reform
Northern Ireland’s current law provides access to abortion in extremely narrow circumstances. In effect, based on common law, an abortion is lawful in circumstances where there is either a risk to the life of the mother or continuing the pregnancy would cause serious and long-term harm to her physical or mental health.2See Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety  NICA 39 at paras 47–96.
Under OPA 1861 ss58 and 59, the procurement of, or assistance with procuring, an abortion unlawfully is a criminal offence carrying a sentence of up to life imprisonment. The impact has been that only 12 terminations were carried out in Northern Ireland in 2017/183Northern Ireland termination of pregnancy statistics 2017/18, Department of Health NI, 23 January 2019, page 1.
while 1,053 women travelled to England and Wales for an abortion in 2018.4Abortion statistics, England and Wales: 2018, Department of Health and Social Care, 13 June 2019, para 2.56, page 21.
In June 2018, the Supreme Court ruled by a majority of four to three that the NIHRC did not have the powers to take the case without a victim,6Re application by the NIHRC for judicial review  UKSC 27.
a matter that the then Northern Ireland secretary publicly stated would be corrected by the end of 2019.7See House of Commons Women and Equalities Committee, Abortion law in Northern Ireland: government response to the committee’s eighth report of session 2017–19. Tenth special report of session 2017–19, HC 2595, 2 August 2019.
Nonetheless, the Supreme Court went on to indicate that notwithstanding the question of standing, the current law did not meet article 8 in cases of fatal foetal abnormality (by five to two) and for victims of rape and incest (by four to three). Lord Mance described the current legislative position as ‘untenable’ and in need of ‘radical reconsideration’.8Re application by the NIHRC for judicial review, para 135.
In October 2019, in Re Sarah Ewart
, the Northern Ireland High Court followed the Supreme Court’s analysis in holding that the lack of access to abortion in cases of fatal foetal abnormality was a breach of article 8.
The recommendations provide for legal abortion in circumstances where a woman’s physical or mental health is threatened without the stricture of it being long-term, serious or permanent, and also to cover severe foetal impairment, including fatal foetal abnormality, and victims of sexual crimes. The recommendations, in line with the inquiry’s wider analysis, also embrace improving access to sexual and reproductive health rights and services, provision of age-appropriate, comprehensive and scientifically accurate sex education, and protecting women from harassment when availing themselves of family planning services.
What happens now?
The Northern Ireland secretary has sought the NIHRC’s formal advice under Northern Ireland Act 1998 s69. Its view is that from 22 October 2019 to 31 March 2020 the law on abortion will not have changed save for decriminalisation and an end to investigations and prosecutions. As a result, the law will still not be human rights-compliant and consideration needs to be given to improving the pathway for women to travel to Britain by providing free transport and accommodation (rather than the present means-tested arrangements). Moreover, arrangements will need to be made to cover circumstances where human rights are breached and a woman is unable to travel. It is expected that the arrangements to apply after 31 March 2020 will be subject to public consultation.
The response from the Northern Ireland Office confirmed that transport and accommodation will no longer be means-tested and that freedom of conscience arrangements will follow current General Medical Council guidelines. Moreover, following the Sarah Ewart judgment, terminations should now be available in Northern Ireland in cases of fatal foetal abnormality. A prosecution of a mother who provided pills to her 15-year-old pregnant daughter has also been dropped.
Opponents of the changes have suggested that legal challenges will be considered. On 21 October 2019, an attempt was made by DUP MLA Paul Givan and party colleagues to restore the Northern Ireland Assembly for a day to introduce a protection of the unborn child private member's bill, without success. The failure to issue guidance around the current law and the subsequent draft guidance were subject to legal challenges lasting almost a decade before guidance was finally approved and published.11Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety  NICA 39 and Re application by the Society for the Protection of Unborn Children for judicial review  NIQB 92.
Unlike the rest of the UK and Ireland, same-sex marriage has not been introduced in Northern Ireland.12See the Marriage (Same Sex Couples) Act 2013 in England and Wales, the Marriage and Civil Partnership (Scotland) Act 2014 in Scotland and the Marriage Act 2015 in Ireland.
The absence of same-sex marriage was subject to two legal challenges on human rights and other grounds. The Northern Ireland High Court ruled that neither the failure to provide for same-sex marriage nor provisions to treat a same-sex marriage entered into elsewhere in the UK as effectively a civil partnership in Northern Ireland were unlawful.13Re application by Close and others for judicial review  NIQB 79 and Re X  NIFam 12.
The judgments were appealed and are awaiting judgement by the Court of Appeal in Northern Ireland.
In the case of civil partnerships for opposite-sex couples, the Supreme Court held in June 2018 that the Civil Partnership Act 2004 in England, Wales and Scotland was not compatible with the European Convention on Human Rights as it only applied to same-sex couples and amounted to discrimination contrary to article 14 of the convention in conjunction with article 8.14R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary)  UKSC 32.
The government announced its intention to change the law in England and Wales.15Hansard HC Debates vol 643 cols 896–897, 27 June 2018.
In Northern Ireland, the consideration of legal reform had not been possible in the absence of the Assembly, though, in any event, the lack of equal marriage and a move to civil partnerships for opposite-sex couples was likely to have proved contentious in some political quarters.
Government departments in Northern Ireland are now trawling through the statute books to amend legislation so that other rights are made compatible with both same-sex marriage and opposite-sex civil partnerships.
Politically and publicly, it appears that the introduction of same-sex marriage and opposite-sex civil partnerships will proceed relatively seamlessly as planned. The introduction of abortion law reform is likely to be much more contentious.
Politically and publicly, it appears that the introduction of same-sex marriage and opposite-sex civil partnerships will proceed relatively seamlessly as planned. The introduction of abortion law reform is likely to be much more contentious. Both pro-life and pro-choice organisations have held well-attended rallies in Belfast.
Nevertheless, Northern Ireland stands on the threshold of a momentous reform of abortion law to make the law human rights-compliant. Such an outcome, alongside the introduction of equal marriage and equal civil partnerships, will mean Northern Ireland is no longer ‘a place apart’ in these islands on both issues. It will also be a fitting testament to the bravery of many people who have spoken about their personal experience publicly and to everyone from parliamentarians to women’s organisations and civic society groups who have fought for human rights and equality on these issues.
CEDAW recommendations on abortion law and sexual and reproductive health rights and services
Inquiry 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, paras 85–86, pages 21–22.
Legal and institutional framework
•Repeal OPA 1861 ss58 and 59 so that no criminal charges can be brought against women and girls who undergo abortion or against qualified healthcare professionals and all others who provide and assist in the abortion.
•Adopt legislation to provide for expanded grounds to legalise abortion, at least in the following cases:
•threat to pregnant woman’s physical or mental health, without conditionality of ‘long-term or permanent’ effects;
•rape and incest; and
•severe foetal impairment, including fatal foetal abnormality, without perpetuating stereotypes towards people with disabilities and ensuring appropriate and ongoing support (social and financial) for women who decide to carry such pregnancies to term.
•Introduce, as an interim measure, a moratorium on the application of criminal laws concerning abortion and cease all related arrests, investigations and criminal prosecutions, including of women seeking post-abortion care and healthcare professionals.
•Adopt evidence-based protocols for healthcare professionals on providing legal abortions particularly on the grounds of physical and mental health and ensure continuous training on these protocols.
•Establish a mechanism to advance women’s rights, including through monitoring authorities’ compliance with international standards concerning access to sexual and reproductive health, including access to safe abortions, and ensure enhanced coordination between the mechanism with the Department of Health and the NIHRC.
•Strengthen existing data-collection systems and data sharing between the Department of Health and the police to address the phenomenon of self-induced abortion.
Sexual and reproductive health rights and services
•Provide non-biased, scientifically sound and rights-based counselling and information on sexual and reproductive health services, including on all methods of contraception and access to abortion.
•Ensure the accessibility and affordability of sexual and reproductive health services and products, and adopt a protocol to facilitate access at pharmacies, clinics and hospitals.
•Provide women with access to high-quality abortion and post-abortion care in all public health facilities, and adopt guidance on doctor-patient confidentiality in that area.
•Make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights a compulsory component of the curriculum for adolescents, covering prevention of early pregnancy and access to abortion, and monitor its implementation.
•Intensify awareness-raising campaigns on sexual and reproductive health rights and services, including on access to modern contraception.
•Adopt a strategy to combat gender-based stereotypes regarding women’s primary role as mothers.
•Protect women from harassment by anti-abortion protesters by investigating complaints and prosecuting and punishing perpetrators.