The Supreme Court may have dismissed an appeal on Northern Ireland’s abortion laws on a technicality but the message is clear: change must come. The next question, however, is how.
Though it was unable to formally declare that the province’s near-total ban on access to abortion is incompatible with human rights law – on the grounds that the Northern Ireland Human Rights Commission, and not a victim of the law, had brought to case – a majority of its justices found that the existing law contravenes the European Convention on Human Rights in the cases of rape, incest and fatal foetal abnormality.
In the absence of a formal legal ruling, they instead warned that the law needed “radical reconsideration” and was “untenable” and urged the government to legislate. It recommended amendments to the 1861 Offences Against the Person Act, which prohibits abortion in almost all cases in Northern Ireland and is the target of a campaign by Stella Creasy, the Labour MP, to relax the law.
What, though, does it actually mean for the government? Though Karen Bradley told MPs in the wake of the ruling that they wouldn’t budge, and they are not legally impelled to do anything, it is hard to see how they can’t. Indeed, given the very public support of Penny Mordaunt, the women and equalities minister, for a change in the law – and the tacit support of Theresa May and Bradley – it is hard to see how they won’t.
The announcement does give the government the cover it needs to legislate unilaterally for limited liberalisation of the North’s abortion regime from Westminster. That a report commissioned by the last Stormont executive in 2016 and released in April has already recommended legalising abortion in the case of fatal foetal abnormality makes the case easier to make too and will soothe anxiety about riding roughshod over devolution.
But though Tory ministers now have a clearly defined policy context, the political justification and the support in the Commons for a change in the law, there remains the small matter of the DUP. Arguably, their biggest problem is not that they will have to do something the Unionists don’t want in liberalising abortion legislation, but that doing so will mean May will face demands to do something they do want: binning the weak pretence that devolution is returning.
“A la carte direct rule” is how one Unionist source described the prospect of the government legislating for abortion alone earlier this week. They believe it unjustifiable. If ministers legislate, they will have set a precedent that the DUP will hold them to on the other issues that are demanding attention after nearly 18 months without a government. The line that May cannot intervene won’t hold. Ministerial decisions will need to be taken from Westminster, and new legislation passed, on a Brexit-choked parliamentary timetable which government sources privately admit will be unable to cope with the demands of direct rule.
The courts have already ruled that the civil servants struggling to keep the administrative show on the road cannot take ministerial decisions in the absence of Stormont. The pressure the Supreme Court has applied over abortion hastens its journey to a political destination it is ill-equipped to manage. Constructive detachment from the business of running Northern Ireland won’t be an option for much longer. The consequences of today for the government are bigger than bad PR. They will be felt for much longer and widely than most realise.