Northern Ireland, Westminster, And The Question Of Abortion

Ireland’s move to broaden access to abortion has placed Theresa May in an incredibly awkward position. Currently, Northern Ireland has the most restrictive abortion laws of any jurisdiction within the United Kingdom,[1] and many have argued that the events in the Republic make the status quo in Northern Ireland untenable. But as we shall see, the issue of abortion in Northern Ireland places the Prime Minister between a rock and a hard place.

Like Scotland and Wales, Northern Ireland has its own devolved administration, and in ordinary circumstances, it would be up to the Northern Ireland Assembly to decide the law on abortion. But the region hasn’t had a working government since January 2017 when the two main parties, Sinn Fein and the Democratic Unionist Party (DUP), fell out over a renewable energy scheme. The Assembly is currently suspended, and it is unlikely to meet again unless the Nationalists and Unionists can figure out a modus vivendi.

In the absence of a working government in Northern Ireland, many have suggested that the British Parliament should fill the void and pass a new abortion law for Northern Ireland. This would be perfectly legal–unlike American states, the devolved administrations in the United Kingdom are not sovereign entities, and the British Parliament retains full legislative power over the whole of the UK. However, there is a constitutional convention that Westminster generally doesn’t make laws for Scotland, Wales, or Northern Ireland without the consent of their respective legislatures. But without a sitting Assembly, there’s no way to obtain that consent.

From a legal standpoint, the UK Parliament could pass an abortion law for Northern Ireland without the Assembly’s consent, as this is a matter of courtesy rather than an essential prerequisite. But pressing ahead with legislation would present political difficulties for the Government. Many MPs, particularly those from the Scottish Nationalist Party, would likely view it as a betrayal of devolution, while the DUP contingent would oppose it because they are a pro-life party. The DUP’s opposition would be particularly troublesome for Theresa May since she needs their votes to prop up her government. In a worst-case scenario, the DUP could bring down the government and usher a General Election.[2]

May faces a difficult balancing act. Increasing numbers of MPs, including many from  her own party, want Westminster to act, but the Prime Minister won’t want to jeopardize the support of the DUP. A recent ruling by the UK Supreme Court has ratcheted up the pressure on the Government even further since a majority of the justices stated that the current abortion regime in Northern Ireland is incompatible with human rights law. Their remarks are just obiter dicta at the moment[3] since they didn’t make a formal declaration of incompatibility,[4] but they will make it harder for the Government to duck the issue. But whatever happens, ministers are likely going to be in a for a bumpy ride.

NOTES

[1] The procedure is only available in cases where the woman’s life is at risk or there is a risk of permanent and serious damage to her mental or physical health.

[2] Though this could easily prove catastrophic for them, as it could bring about a Labour government under Jeremy Corbyn, and Corbyn is no friend to Unionists.

[3] The underlying case was dismissed on technical grounds.

[4] Unlike the American Supreme Court, the British Supreme Court cannot strike down legislation. They can, however, declare that it is incompatible with the Human Rights Act. In essence, they are highlighting a problem and asking Parliament to fix it.

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