Government Response

The Government responded to this petition on Wednesday 4th September 2019

In the absence of a restored Northern Ireland Executive and functioning Assembly, Parliament has placed a legal duty on the Government to reform Northern Ireland’s abortion law.

There is no statutory framework in Northern Ireland allowing for lawful abortion. Following previous court judgments, there is a limited exemption for an intervention to a pregnant woman that has the intent to cause a miscarriage, where this is carried out with the intention of protecting the woman against physical or mental health issues that are ‘real and serious’ and ‘permanent or long term’.

Under sections 58 and 59 of the Offences Against the Person Act 1861 (which also applies in England and Wales) it is a criminal offence for any woman, being with child, unlawfully to do any act with intent to procure a miscarriage; and for any person unlawfully with intention to do an act to procure a miscarriage of any woman; or to unlawfully supply or procure drugs or instruments to cause an abortion.

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 operates in accordance with the convention that the UK Parliament will not normally legislate on devolved matters except with the agreement of the devolved legislature.

The Government’s preference therefore remains that any change to law on abortion, which we recognise is a highly sensitive devolved issue, on which there are a wide range of differing views, is taken forward by a restored Executive and functioning Assembly.

It remains the hope that devolved government can be restored at the earliest opportunity through the current talks process, so that it is the politicians of Northern Ireland that carefully consider, debate and take decisions on sensitive devolved issues in the interests of all the citizens of Northern Ireland.

However, the Government also recognises the strength of feeling on the issue of abortion law reform, demonstrated by Parliament voting through the addition of section 9 to the Northern Ireland (Executive Formation etc) Act 2019.

This section places a legal duty on the Government to regulate to provide access to abortion in Northern Ireland, in line with recommendations made by the UN Committee for Elimination of Discrimination against Women (CEDAW). This duty will come into effect if the Executive is not restored by 21 October 2019, with the regulations required to be in place by 31 March 2020.

This creates an interim period - from 21 October 2019 to 31 March 2020 - during which time the Government will work to ensure regulations are ready to be in place by 31 March 2020. In terms of this interim period, if the duty to regulate to implement the CEDAW recommendations comes into effect, as section 9(2) of the Act provides, sections 58 and 59 of the OAPA will be repealed from 22 October 2019. Further, a criminal moratorium will also come into effect on that date, meaning that no investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those sections under the law of Northern Ireland (whenever committed).

Careful consideration is being given now to how we manage this interim period where the criminal law in Northern Ireland falls away, but services are unlikely to be widely available given the policy and delivery considerations required in the following months to implement the new framework by 31 March 2020.

This includes considering what guidance can be put in place in Northern Ireland to clarify the new state of the law, and ensuring the Government scheme that currently operates in England continues to be as accessible as possible for those women and girls from Northern Ireland seeking to access it in the interim period.

Ensuring the health and safety of women, and clarity for medical professionals, will be at the forefront of our approach at each stage of the process.

Northern Ireland Office.