4Devolution in Northern Ireland
43.The devolution settlement for Northern Ireland is governed by the Belfast Agreement and the Northern Ireland Act 1998 which established the Northern Ireland Assembly. Human rights are strongly protected as an inherent part of the devolution settlement; the Northern Ireland Assembly and Northern Ireland Ministers are required to comply with the European Convention on Human Rights.61 The Assembly and the Executive ceased functioning in January 2017 and have not been re-established.
44.The Northern Ireland Office sets out in its written submission to the inquiry what the devolution settlement means for abortion law:
Under the Northern Ireland devolution settlement, the following areas, relevant to the provision of abortion services, are “transferred matters” and therefore devolved in Northern Ireland: health and social services; equal opportunities (including as provided for in equality law); and justice and policing. As a result, any questions of reform or legislative changes to the law or policy in these areas are matters that are within the competence of the Northern Ireland Assembly and Executive.
The UK Government and the Northern Ireland Executive have agreed a Memorandum of Understanding setting out the principles that underlie relations between them. In terms of legislation, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. It is the Government’s view that the convention should be adhered to in this context as the issue of abortion is a devolved matter and therefore, should rightly be a matter for the Northern Ireland Assembly to legislate on.62
45.In her oral evidence, the Secretary of State for Northern Ireland, Karen Bradley MP, told us that the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 allows the Executive to reform and start working again at any time without any further legislation, and “Because of that, I as the Secretary of State, have no executive powers to direct the civil service and the officials in Northern Ireland.”63 Guidance published under Section 4 of the 2018 Act includes a section on abortion which says that:
in light of any relevant emerging legal judgments or other developments, as appropriate, the Departments of Health and Justice should consider whether policy advice and options should be prepared to inform Northern Ireland Ministers on the issues arising. More generally, the Departments of Health and Justice should, in relation to health and criminal justice policy so far as they concern abortion law, continue to have regard to all of their legal obligations, including the Human Rights Act 1998 and sections 24 and 75 of the Northern Ireland Act 1998 in exercising any relevant functions.64
46.We have received evidence from those stating that the UK Government in Westminster does not have a role to play in relation to abortion law in Northern Ireland. Dawn McAvoy of Both Lives Matter told us:
This is a devolved issue and there is no requirement for Westminster to intervene on human rights grounds.[ … ] We do not have the policies in place to cater for abortion the way there is in GB.[ … ] It would be reckless and irresponsible to do anything while we have no Assembly.65
47.Many submissions from members of the public support the view of Rev Marcus Hobson that: “For the Government to abandon devolution in this matter would create a democratic deficit, the majority in Westminster clearly don’t represent the majority in N. Ireland as expressed in recent elections and the vote in the N.I. Assembly in 2016.”66
48.In contrast, many of those who wrote to us about their own experiences of seeking abortion in Northern Ireland expressed frustration about the impact of there being no functioning Assembly and called for the UK Government to act. One woman said, “Stormont has not functioned for over two years. We are being punished and neglected at every turn as a result of this. It simply is the responsibility of the UK government to step in to provide support in lots of areas, but especially in this case.”67 We heard from researchers, campaigners and legal experts who supported this view.
49.Caoilfhionn Gallagher QC told us in her oral evidence that there was no constitutional impediment to Westminster reforming the law on abortion. She went on to say that:
the Secretary of State has the power to direct Northern Ireland Departments to take such action as may be required under international obligations. In the circumstances that we are now in, it seems, in the absence of a constitutional impediment to Westminster acting, and with no indication of the position of the power vacuum in Northern Ireland changing, the residual power Westminster has should now be activated and Westminster should take action.68
50.The CEDAW Committee also addresses the issue of devolution in its report on abortion in Northern Ireland. It notes that, under international law, all acts of State organs are attributable to the State and that internal law cannot be used to justify its failure. Furthermore, under General Recommendation 28 of the CEDAW Convention itself, the delegation of government powers “does not negate the direct responsibility of the State party’s national or federal Government to fulfil its obligations to all women within its jurisdiction.”69
51.We respect the principle of devolution and believe it is rightly the responsibility of the Northern Ireland Assembly to legislate on matters relating to abortion law. One of the consequences of devolution is that decisions may be taken which both differ from those taken in the rest of the United Kingdom and with which people in the rest of the United Kingdom may disagree. However, there are specific obligations for the Northern Ireland Assembly not to pass Acts that are contrary to the UK’s international obligations. Furthermore, devolution does not remove the UK Government’s own responsibilities to comply with its international obligations and internal laws cannot be used to justify a failure to comply with human rights standards.
64 Guidance issued under section 4 of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018
69 General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women
Published: 25 April 2019