Appeal Court rules NI Secretary of State acted lawfully in establishment of full abortion services

The Secretary of State acted lawfully in directing the establishment of full abortion services in Northern Ireland, the Court of Appeal ruled on Thursday.

Senior judges rejected claims by a pro-life group that regulations introduced by the UK Government to issue the instruction were legally invalid.

Lady Chief Justice Dame Siobhan Keegan identified a requirement to implement the recommendations of a United Nations Committee which found women’s rights were being breached by limited access to terminations.

She said: “The regulations…are part of a suite of legislative steps which clearly change the law of Northern Ireland as foreseen.”

The Society for the Protection of Unborn Children (SPUC) was seeking to overturn a High Court verdict that Westminster was entitled to impose a deadline on the Stormont Executive to introduce a centralised system for abortions.

In 2019 MPs passed legislation to decriminalise terminations in Northern Ireland at a time when devolution had collapsed.

The liberalised regime change followed a report by the UN Committee on the Elimination of Discrimination Against Women (CEDAW).

Under the terms of the Northern Ireland (Executive Formation etc) Act 2019, former Secretary of State Brandon Lewis had to implement the CEDAW recommendations in Northern Ireland.

Section 9 of the Act imposed specific duties on him about the provision of abortion and post-abortion services.

Amid the continuing impasse at Stormont, a direction was issued under the Abortion (Northern Ireland) Regulations 2021 for the Department of Health to set up full services.

Current Secretary of State Chris Heaton-Harris has pledged continued commitment to the move.

SPUC claimed that the issue should instead be decided on by MLAs at Stormont.

In a challenge to the legality of the 2021 Regulations, it contended that constitutional arrangements enshrined in the Good Friday Agreement meant the Secretary of State went beyond his legal authority.

The group appealed a finding that section 9 of the 2019 Act provides “broad, expansive powers” as part of parliamentary sovereignty.

According to SPUC, the 2021 Regulations do not change the law in Northern Ireland and Mr Heaton-Harris cannot impose an order which must be complied with.

Unlike human rights issues examined in previous cases, the challenge centred on the legislative method used to implement changes to the regime.

“The legal question before us is simply whether the Secretary of State once enabled or empowered by the 2019 Act acted within his power or, ultra vires, that is outside his powers?” Dame Siobhan pointed out.

Dismissing all grounds of challenge, the Chief Justice said there was a wide-ranging obligation to direct on implementation of the CEDAW recommendations.

“It is patently clear in relation to these regulations that they are made to be complied with as any regulations are,” she said.

The judge added: “The focus here is upon regulations and directions mandated by a primary Act of Parliament which require the Secretary of State to ensure compliance with the CEDAW recommendations.

“A choice was made to structure the law in that way in Northern Ireland.”

Despite rejecting SPUC’s case, the court acknowledged a further argument on the potential consequences of full abortion services for pregnancies involving a severe foetal impairment (SFI).

Under the CEDAW recommendations abortions are to be legalised for SFI cases “without perpetuating stereotypes towards persons with disabilities”.

SPUC contended that it could send a message that the lives of disabled people are of lesser value.

Suggesting further guidance may be issued, Dame Siobhan said it was difficult to see how the Secretary of State can exactly comply with his duty to implement the CEDAW recommendations without perpetuating negative stereotypes.

She stated: “It remains to be seen how this is feasible in practice as regards severe foetal impairment and whether the issue may be further clarified by the international bodies who deal with the elimination of discrimination against women and the rights of persons with disabilities.”

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