Abortion? That would be a devolved matter

After the Republic's historic vote, women in Northern Ireland are fed up of having their bodily autonomy used as a bargaining chip and seeing Theresa May absolve herself of responsibility.

Sarah Creighton
1 June 2018
yes celebration.jpg

Image: Yes campaigners react to the Republic's abortion referendum result. Credit: Brian Lawless/PA Images, all rights reserved.

Like the distant, unruly uncle you only hear about when he’s gotten drunk and made an arse of himself again, Northern Ireland is back in the news. This time it’s because of the referendum in the Republic of Ireland to repeal the Eighth Amendment.

Since the result on the 26th May, much attention has been drawn to the fact that by autumn, as well as having the strictest abortion laws in the United Kingdom, Northern Ireland will have the strictest laws on the island of Ireland.

Activists have called for Westminster to legislate and are putting pressure on Theresa May. The Government and its Ministers have responded in recent days with statements so predictable and so rehearsed that they sound robotic. Abortion is a devolved matter.

Image: Twitter/Fair Use

A few MPs and commentators have even called for Northern Ireland to hold our own referendum, not just on abortion but on equal marriage as well.

It has always been controversial for the British Government to get involved in our affairs. There are political sensitivities and we should be mindful of that. At the same time, it’s hard not to feel angry about the Government’s stance on abortion and equal marriage.

Our abortion laws have been described as being ‘cruel and inhumane.’ and the LGBT community deserves to have the same rights afforded to couples in Britain and the Republic of Ireland.

It’s one thing to acknowledge the constitutional and political difficulties that come with getting involved in Northern Ireland. It’s another thing to disengage from the conversation and neglect your responsibilities. History should teach us to be wary every time the Government brings out the devolution argument. The response is, unfortunately, same old, same old.

If the constitutional landscape on the issue of abortion and devolution is tricky, it is all the more difficult to navigate given our current political crisis. We are not (yet) under direct rule but the Assembly is not functioning either.

Abortion is a devolved matter because it falls under Policing and Justice. Human Rights are not specified as being a reserved or excepted matter in the Northern Ireland Act 1998. Section 4(2) of the Act seems to suggest, therefore, that Human Rights are a “transferred matter” i.e. devolved.

The Northern Ireland Human Rights Commission, under section 69, has the task of advising the Assembly on “legislative and other measures which ought to be taken to protect human rights.” The Assembly has to observe and comply with the European Convention of Human Rights.

So when the Government says abortion is a devolved matter, that isn’t untrue. We have to keep the Sewel Convention in mind. Westminster will not normally legislate on devolved matters in Northern Ireland without the consent of the Northern Ireland Assembly.

It is important to stress this: Parliament has the power to legislate for Northern Ireland on devolved matters. The Northern Ireland Act 1998 specifies this in section 5(6). Section 26(2) also specifies that the Secretary of State can direct a Minister to carry out an action to give effect to international obligations.

In reality, the problems Westminster faces by legislating for abortion are political, not legal. Both Sinn Fein and the DUP are against Westminster legislating for abortion. Theresa May is certainly wary of causing a rift with her “confidence and supply” partners in the DUP.

Let’s also acknowledge that the Supreme Court has yet to give its verdict on Northern Ireland’s abortion laws. The Government might be reluctant to weigh in until we get a judgment.

Since devolution, Britain has had to walk a fine line when it comes to Northern Ireland. The mantra of repeating “this is a devolved matter” is still hard to stomach, however. Since the foundation of the state, the British Government has shirked its responsibilities to people in Northern Ireland.

We are always treated differently. We are always apart from everyone else. What would be unacceptable in Britain is shoved on us as normal.

In her new book, The Good Friday Agreement, Siobhan Fenton relates how the British government was informed about the treatment of Catholics in Northern Ireland in 1928. A delegation appealed directly to the Home Secretary about voter suppression, who said it was a matter for the Northern Irish Parliament. Writing to James Craig, then Prime Minister of Northern Ireland, the British Home Secretary wrote, ‘I don’t know whether you would care at any time to discuss the matter with me; of course I am always at your disposal. But beyond that, “I know my place,” and don’t propose to interfere.’

Sound familiar?

Government ministers like to restate the constitutional and legal position on devolution without involving themselves in the conversation. Nobody ever acknowledges that, even if it’s problematic, the Government could still do something. Every time Theresa May or her cabinet ministers repeat the phrase, ‘that’s a devolved matter’ they are kicking the can down the road.

The only reason why MPs are keen for Northern Ireland to have a referendum on abortion is that it gets them off the hook. They want us to make the decision on abortion and equal marriage so they don’t have to think or act. They do all this while claiming to act in our best interests.

It’s easy to understand why activists are so fed up. We could have abortion reform and equal marriage but, oh dear, the government’s hands are tied, sorry. All of it is a tease. People are having their rights dangled in front of them like a prize to be won.

Nobody in Britain would put up with it. You can debate the politics and legalities all you want, but the attitude is infuriating. I agree with the activists: somebody needs to do something.

The British Government is undoubtedly in a difficult position. It’s hard not to be bitter when that stance is layered with apathy and indifference. We should acknowledge the irony. Siobhan Fenton explains it so well in her book: after everything that’s happened here the British have actually withdrawn from Northern Ireland. Not physically or legally, but mentally.

This article was cross-posted from Fly By Those Nets.

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