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Fixing Northern Ireland’s abortion regime will be harder than it looks

Yesterday’s Commons debate showed that while the bad press for the government will not subside, the political path to making abortions free, safe and legal in Northern Ireland is still unclear.

By Patrick Maguire

For a fleeting period yesterday afternoon, it looked like Theresa May’s Northern Ireland Secretary would dispense with their occupational requirement to do and say as little of substance as possible. 

Before MPs met for Labour MP Stella Creasy’s emergency debate on whether the 1861 Offences Against the Person Act – the legislation which prohibits abortion in Northern Ireland – it was excitedly suggested that Karen Bradley would decisively shift the debate. 

Confirmation that the Prime Minister supported efforts to liberalise the province’s abortion laws and of Westminster’s right to legislate to do so via a free vote would gazump the DUP. Instead, the government reverted to type. As per its default setting on any issue affecting Northern Ireland, Bradley merely acknowledged the existence of the problem and effectively denied she was able to deal with it.

Beyond the unsurprising revelation that both she and the Prime Minister personally supported reform, her statement offered nothing new. Yes, she confirmed that MPs would have a free vote should the issue come before the Commons, but there is no immediate prospect of that happening. A similar confirmation that a vote on extending equal marriage to Northern Ireland would be a conscience issue and thus unwhipped, made in February, has resulted in no change. 

Though Creasy and other MPs have suggested amending the Domestic Violence Bill in order to repeal the 1861 legislation, it is still in its consultation phase, has only been published as a draft and is unlikely to appear in the Commons anytime soon. 

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While the Supreme Court will rule tomorrow on whether the North’s near-total ban on abortion violates human rights law and could yet force the government’s hand, the path to the point at which MPs would vote to liberalise the regime in Northern Ireland – which they undoubtedly would – is not yet a straightforward one. 

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Bradley’s bottom line was ultimately no different to that of Downing Street: the decision is for Stormont, not Westminster. That stance has more to do with the government’s unwillingness to impose direct rule – which, arguably, it will soon need to – than it does about the issue at hand. 

As one DUP source told me this morning, legislating “a la carte” for abortion rights from Westminster and not for other issues in Northern Ireland that are demanding attention from the government would set a precedent that would force its hand on formally suspending devolution. Ministers have neither the inclination nor parliamentary bandwidth to do so. 

Unless it absolutely has to, it is unlikely that the Northern Ireland Office will initiate any movement. Though Penny Mordaunt – who is free to be much more hawkish in public than Bradley – is right to say that MPs would overwhelmingly vote for it, the government is unlikely to make the first move voluntarily, and there is no guarantee it will move particularly swiftly. 

What yesterday did make clear, however, is the scale of support for liberalising the abortion regime in Northern Ireland across the Commons. But therein lies another problem: there is little consensus at Westminster on the extent to which it should be liberalised. And as hard as it was to stomach for some in the chamber, the DUP’s Jeffrey Donaldson had a point when he highlighted that the political consensus in Northern Ireland is not a pro-choice one: even Sinn Fein are against the extension of the 1967 Abortion Act to Northern Ireland and the SDLP, Labour’s sister party, recently affirmed its pro-life stance. 

That makes the bit after repealing the relevant bits of the 1861 Act more complicated: the simplicity of the first step obscures the complexity of the second. It won’t mean making abortions in Northern Ireland safe, free, and legal overnight, as Labour admitted in a briefing note to its MPs ahead of yesterday’s debate. Unlike equal marriage, a much bigger and less divisive political tent that has been backed by a majority of assembly members multiple times, there has been no clear expression of backing for liberalising abortion access from politicians in Northern Ireland. And using a UK-wide piece of legislation turns the debate into a broader one than would be sparked by creating new, Northern Ireland-specific legislation or extending the 1967 act.

It is equally unclear just who would formulate that framework in the event that Creasy’s efforts were successful: it’s unclear whether the civil servants who are effectively governing Northern Ireland have the power to. And even if the government were to deviate from type and impose it unilaterally, they might have difficulty finding their cue. Is it the proposed 12-week limit in the Republic, the 24-week limit in the UK, or the grounds of fatal foetal abnormality recommended by a Stormont report commissioned after the assembly last rejected proposals to liberalise access? 

The government will find it difficult to answer that question and, by its own admission, does not want to. Even if an executive returns, the chances of substantial reform are slim. Resolving the anomaly of Northern Ireland’s abortion laws will be much more difficult than it looks, even if the 1861 Act is repealed by a landslide in the Commons. Those involved in formulating Labour’s policy privately acknowledge this too, despite their support for Creasy’s efforts. 

The party has fully resiled itself from the suggestion, briefly floated in the draft of its general election manifesto, that it would legislate from Westminster. Instead it briefed its MPs ahead of yesterday’s debate that although devolution was no barrier to imposing legislation, that it was “calling on the government to bring political leaders together to see if they can agree a way forward to ensure women in Northern Ireland are protected and can access safe and legal abortions”.

That reflects an uncomfortable truth: that despite the near-universal feeling in Westminster that something must be done about Northern Ireland’s draconian abortion regime, there is no sign that anyone really knows how to do it. That will likely be the case as long as Northern Ireland exists in the liminal space between direct rule and devolution the government has created.