Abortion and same-sex marriage in Northern Ireland: Do Westminster votes undermine devolution?

Yesterday (9 July) the House of Commons voted by large majorities to change the law regarding abortion and same-sex marriage in Northern Ireland. Currently, abortion is only permitted there in very limited circumstances, while same-sex marriage is not legal.

Both these areas are ‘transferred’ (or devolved) matters in Northern Ireland. This means they would normally be dealt with by its devolved Executive and Assembly at Stormont. Neither institution, however, has been functioning since early 2017. Therefore pressure has gradually built at Westminster for the UK Parliament to address what many MPs see as an anomalous situation.

MPs who supported both measures have argued it does not undermine the devolution settlement in Northern Ireland because of the ongoing deadlock between its main political parties. But the Democratic Unionist Party (DUP), whose MPs voted against both measures, has criticised yesterday’s votes. Its Westminster leader Nigel Dodds said it would “drive a coach and horses through the principle of devolution.”

What did MPs vote for?

MPs were voting on the Northern Ireland (Executive Formation) Bill 2017-19, a short Bill to extend the period for forming a devolved Executive under section 1(1) of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. However, the Deputy Speaker selected proposed amendments on several topics, including same-sex marriage and abortion.

Same-sex marriage

One of the amendments, known as New Clause 1 (NC1) in the name of Conor McGinn MP, said the Secretary of State for Northern Ireland “must make regulations to change the law relating to marriage in Northern Ireland to provide that marriage between same-sex couples is lawful.” NC1 also stated that such regulations “must be in force no later than 21 October 2019.” If an Executive is formed before the regulations came into force, then NC1 would “cease to have effect.”

In those circumstances, the expectation would be that the Northern Ireland Assembly would become the appropriate legislature to consider the devolved matter of same-sex marriage.

NC1 was agreed to by 383 votes to 73.

Abortion

The other amendment, New Clause 10 (NC10), in the name of Stella Creasy MP, took a similar form but related to abortion. It stated that in accordance with section 26 of the Northern Ireland Act 1998:

“The Secretary of State must make regulations by statutory instrument to give effect to the recommendations of the Report of the 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.”

That report, produced by a United Nations Convention, recommended in 2018 that the UK repeal sections 58 and 59 of the Offences against the Person Act 1861 so that:

“No criminal charges can be brought against women and girls who undergo abortion or against qualified health care 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: (i) Threat to the pregnant woman’s physical or mental health without conditionality of “long-term or permanent” effects;  (ii) Rape and incest; and (iii) Severe foetal impairment […]” 

NC10 was agreed to by 332 votes to 99.

NC10 also stipulated that the regulations must come into force by 21 October 2019, and that they would cease to have effect if an Executive had been formed by that date.

How will the changes be implemented?

Neither NC1 nor NC10 automatically changes the law in Northern Ireland.

The Northern Ireland (Executive Formation) Bill 2017-19, as amended, will receive its second reading in the House of Lords today, although commentators consider it unlikely that either amendment will be overturned.

Once the Bill has received Royal Assent and becomes an Act, the Secretary of State for Northern Ireland will be under a legal obligation to introduce two pieces of secondary legislation (known as statutory instruments (SIs). These would contain regulations to legalise both same-sex marriage and abortion in Northern Ireland by 21 October 2019, unless an Executive has been formed.

As stated in both NC1 and NC10, these regulations:

(a) must be laid before both Houses of Parliament;

(b) [are] subject to annulment in pursuance of a resolution of either House of Parliament.

As secondary legislation, neither SI could be amended. Asked yesterday if the Government would bring forward the regulations if approved by Parliament, Northern Ireland Minister John Penrose replied: “Absolutely […] Ministers would be bound by it and Government would proceed.”

However, the regulations will also need to specify the details of Northern Ireland’s new same-sex marriage and abortion laws. On this, the Minister made what he called a “technical point”, warning that:

“The changes that would need to occur before the first same-sex couple could legally marry in Northern Ireland are probably not achievable, just as a practical matter, by October. There are many policy questions to be worked through that have not yet been properly considered for the Northern Ireland-specific context, which might require a different response from the one in England, Wales and Scotland.”

England and Wales legalised same-sex marriage in July 2013. Scotland followed suit in February 2014, although the two pieces of legislation are not identical. The Minister made a similar point in relation to NC10, saying there were “real and genuine concerns” as to its “technical effectiveness” by the 21 October deadline.

Do these amendments breach the devolution settlement in Northern Ireland?

Historically, abortion and marriage have been considered ‘transferred’ matters in Northern Ireland, under the old Parliament of Northern Ireland which existed between 1921-72.

The Abortion Act 1967 only applies in Great Britain and was not extended to Northern Ireland, where abortion is only permitted in very limited circumstances.

Same-sex marriage has been voted on by the Northern Ireland Assembly established in 1998 under the Belfast/Good Friday Agreement. A majority of Assembly Members supported the measure but it was blocked by the DUP using a mechanism known as a Petition of Concern. But while that Assembly has not been formally suspended, nor has it been fully functioning since January 2017.

Until yesterday, the Government’s position was that both issues were a matter for the Northern Ireland Executive and Assembly rather than Westminster. Some MPs, however, argued that under the Northern Ireland Act 1998, the UK Government is responsible for observing and implementing the European Convention on Human Rights.

While a recent case brought by the Northern Ireland Human Rights Commission was rejected by the Supreme Court of the United Kingdom (UKSC), a majority of Justices said Northern Ireland’s abortion law was not compatible with Article 8 of the Convention in cases of rape, incest and fatal foetal abnormality.

This article was updated on 11.07.19 to correct errors in relation to the existing abortion law in Northern Ireland and the likely effect of a legal challenge under the European Convention on Human Rights.


About the author: David Torrance is a Senior Library Clerk at the House of Commons Library, specialising in devolution and the constitution.

Image: House of Commons Chamber 1 / UK Parliament / CC BY 3.0 / image cropped