In review: why the abortion debate landed where it landed

To begin with, the Northern Ireland Act 1998 specifically authorises Parliament to make laws for Northern Ireland (Section 5(6)) and, in return, the Northern Ireland Assembly to amend laws made by Parliament to the extent that they affect Northern Ireland, provided that the matter has been “transferred” (devolved – see section 6).

In theory, there could be an unending game of ping pong as the Assembly asserts its will and Parliament asserts its sovereignty.  Thus the Sewell convention, which is as simple as that Westminster does not assert its sovereignty unless the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly as the case may be consents to the Westminster legislation.  There are exceptions – for example, a UK Minister may not make regulations regarding retained EU law without giving the Assembly forty days to make a decision to consent – but in general, as far as Northern Ireland is concerned, it is a convention that Parliament will not pass legislation for devolved matters unless the Assembly agrees – and no more than a convention.

This sovereignty is the reason why the Government is bound by the Northern Ireland (Executive Formation) Act 2019.

Or rather, part of the reason.

The NI (Executive Formation) Act received Royal Assent on 24th July 2019.  During its passage through Parliament, Members of Parliament and the House of Lords added the following sections to the Act:

• Section 8, requiring the Secretary of State to make regulations for same-sex marriage and opposite-sex civil partnerships by 13 January 2020
• Section 9, decriminialising abortion and requiring the Secretary of State to make regulations to implement the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recommendations by 31 March 2020
• Section 10, requiring the Secretary of State to make regulations to implement the Victims’ payments scheme by 31 May 2020

Section 3 was also amended and sections 4-7 added to expand the reporting standards on progress towards the re-establishment of the Executive and matters such as gambling, suicide prevention, historic institutional abuse, the armed forces covenant, political donations and libel legislation.  The list is long.

Focussing in, sections 8, 9 and 10 all have one thing in common.  The requirement on the Secretary of State to act would only come into being if the Northern Ireland Executive were not re-established on or before 21 October 2019.

Suddenly, an imperative to act.  The Executive did not exist because of fundamental disagreements between the DUP and Sinn Fein; surely the DUP would be battering the door of the Sinn Fein offices down to negotiate terms for the return of the Executive on or before 21 October 2019?

But no.  We had a charade instead.

Protests outside Stormont, attended by members of the DUP.

An attempt on the last day possible to circumvent Section 39 of the Northern Ireland Act, requiring the first order of business by the Assembly as elected in 2017 to be the election of a Speaker and Deputies (although, had a Speaker been elected, the DUP could then have moved that Standing Orders be suspended to pass their Bill – successfully or otherwise).

Arlene Foster and DUP representatives continue to refuse to confirm what action they took between 24th July and 22nd October to engage in negotiations with Sinn Fein to secure the return of the Northern Ireland Executive, compared to the hurry to negotiate when they no longer held the balance of power in the House of Commons.  Sinn Fein might have refused to negotiate in order that section 9 of the NI (Executive Formation) Act could not be prevented from coming into force, but if that had happened, then surely the DUP would have publicised this.

And that is why we are where we are.  Minister of State Robin Walker sent the DUP away with their tails between their legs on Thursday, because as he factually pointed out, the law in Northern Ireland changed on 22nd October, and therefore the question of the regulations was not whether abortion should be permitted at all, but rather, as specified by the NI (Executive Formation) Act, the authority to make regulations regarding abortion was limited to how the CEDAW recommendations would be implemented.  The framing of Section 9 of the NI (Executive Formation) Act is such that the Secretary of State does not have discretion to either make more limited regulations or not to make them at all: it is a legally binding compulsion to implement the recommendations of CEDAW.

In practical terms, the only mechanism by which this can be changed is for the Assembly to repeal section 9 of the NI (Executive Formation) Act, which is specifically within the powers granted in section 5(6) of the Northern Ireland Act 1998.

Except… it’s extremely unlikely to be successful, because of section 6:

(c)it is incompatible with any of the Convention rights;

(e)it discriminates against any person or class of person on the ground of religious belief or political opinion;

Once a privilege has been granted, it cannot easily be withdrawn.  In the case of abortion, any attempt to repeal or amend section 9 of the NI (Executive Formation) Act would immediately fall foul of the Sarah Ewart case.  Even the ability to amend the regulations is restricted by CEDAW.

There is however one thing that seriously disturbs me about the whole debate.  It’s the similarity of approach between the two sides of the abortion argument, which both require absolute adherence to their particular polar opposite argument, one that Christians cannot be Christians if they act in a way that might permit women to have abortions, the other that progressive politics must always include a liberalised abortion regime.

That isn’t right.

I’ve said this before, but the mainstream in UK politics is that no public representative is whipped to support one side or the other.  Trevor Lunn has reminded us of why he and Stewart Dickson supported a particular inbetween line:

The DUP motion was worded in such a way as to allow them to approach the Westminster government with a view to reopening the entire debate on the Abortion act, which is now law. It was framed to look like support for the removal of the clause 7(1) b which allows for abortion up to full term, where a severe physical or mental abnormality would cause serious disability.

I strongly object to this clause and have said so consistently, but the rest of the Abortion act I can support. Along with others, I object to giving DUP any license to pursue this approach. I asked Paul Givan in my intervention to confirm what their intentions were, but he declined to answer.

…

Westminster brought NI into line with the rest of the country because of our inability to make any changes ourselves. Even the relatively simple change to allow for termination in cases of fatal foetal abnormality put forward by myself and Stewart Dickson several years ago was defeated mainly by DUP intransigence.

The amendment was worded in a manner which more accurately reflected my views. It doesn’t matter to me that it was a Sinn Fein proposal, this is really not an Orange/Green or a Nationalist/Unionist issue.

Look, we all know I’m biased, but there is something badly wrong when abortion becomes the issue that decides whether you are one of “us” or one of “them”.  Where is the space for those inbetween (or even towards one or other end of the spectrum) who mightn’t necessarily like it, but recognise that things are the way they are, and who therefore want to focus on better lives for the living, tackling inequity, inequality, the acceptability of greed, and the treatment of the other, things that get lost in the mix when abortion is the focus?

In a progressive society, you can’t force others to behave as you wish in either direction; you can decide not to prevent them, but as soon as you require a public representative to go against their conscience, you set a precedent that can be abused.

The law in Northern Ireland has been set by Parliament in a way that displeases the majority of the Assembly.  It’s extremely unlikely that any Bill to change the law will succeed, and that law specifies the bounds within which abortion shall be permitted.

In the meantime, something I have said several times.

If I were a pregnant woman, could I promise you that I would not under any circumstances seek an abortion?

I would like to say yes.

But I can’t.

As a Christian, I cannot look you in the eye and tell you that if I were a woman I would never seek an abortion.

I mean, I hope that if I had been a woman, I would never have sought an abortion.

But I will never be that woman in a crisis.  I will never have an unintended pregnancy.  I will never become pregnant as a result of rape.  I will never carry a baby who cannot live outside the womb.

I will never have to face what such a woman faces.

And if I did have to face it, would I give the “correct” response?

I’m pro-life.  I’m closer to Trevor and Stewart’s position than Chris Lyttle’s.  I think the four of us would agree wholeheartedly that to be opposed to abortion isn’t enough, you have to support life for the living.  Canute proved that you can’t hold back a rising tide.

But you still end up looking at yourself in the mirror and saying “If I were that person in that horrendous situation, would I have lived up to my standards?”

And in that way, walking in the shoes of others, lies grace.