Nuala O’Loan
The View
Unless the Northern Ireland Assembly is reconstituted and an Executive is formed on or before October 21, 2019, abortion law in Northern Ireland will change utterly on October 22, 2019.
66% of women and 70% of 18-34-year-olds in the North said in a recent ComRes opinion poll that they did not want abortion law imposed on Northern Ireland from Westminster. Yet this is what has happened.
There has been no consultation. The Government has ignored its obligations under Parliamentary conventions, the devolution settlement and the Good Friday Agreement. It did not have to do this. It is giving effect to recommendations in a report issued under a protocol to the CEDAW convention, which are not legally required, and are unclear in their meaning.
When I asked in Parliament what some of these recommendations meant, the Minister did not respond. Extended abortion law will be imposed on Northern Ireland unless the Assembly is back at work on October 21, by the Government and by Parliamentarians, none of whom live or work in Northern Ireland. It represents a total democratic deficit.
Risk
The consequences of this ill-thought-through bill have never even been assessed for their impact or risk.
Nothing can happen to change the law until October 22, when the provisions of the Offences against the Person Act 1861, which will still apply in England and Wales, will be abolished.
No criminal offence will be committed by any person who carries out any abortion of any baby up to 28 weeks in the womb, although the Secretary of State must then legislate to create an abortion law by January 13, which may include new criminal penalties, making whatever other changes to the law he or she thinks are ‘necessary or appropriate’ to regulate abortions in Northern Ireland, including providing for the circumstances in which an abortion may take place.
We do not know what the new law which must be made by March 31, 2020 will look like.
Government and Parliamentarians refused to back an amendment requiring the Secretary of State to consult with NI Assembly members and to seek their consent as the elected representatives of the people of Northern Ireland.
There are many things we do not know about what the new law will look like including:
-In what circumstances abortion will be allowed;
-Whether there will be any time limit;
-Whether there will be any restrictions on access to abortion;
-Whether there will be provision for abortion to birth if the baby has a disability or for other reasons as happens in Great Britain;
-What arrangements will be made as to who can carry out abortions;
-Whether there will be a right to conscientious objection for medical practitioners and pharmacists, and in what circumstances such a right might be exercised.
All of these major decisions can be made by a single Minister with no general consultation with the people of the North. This is what is going to happen and it will be very difficult to challenge anything the Secretary of State might do.
The Bill was passed to introduce abortion, with total uncertainty as to what the law will be.
Signatories came from all sectors of our divided society”
All this happened over the period of the July 12 holidays, a time when traditionally many in the North go on holiday and when the attention of its people is not on Westminster. Despite this an open letter to the Prime Minister which was agreed between me and Lord Eames was signed by over 20,000 people in just a few days.
Signatories came from all sectors of our divided society – from MPs, MLAs, Peers, clergymen of all denominations, doctors, nurses, lawyers and many other professions, so many people responding in days to ask the Prime Minister not to do this, or to consult our MLAs, and give them a voice. That rapid response, a united voice by so many people from all parts of Northern Ireland, was ignored.
If the NI Assembly does not return, then between October 22, 2019 and the introduction of the new regulations setting out how abortion will work, which must happen before March 31 2020, will be a period of five months when there will be no protection at all for the unborn child who has been in his or her mother’s womb for fewer than 28 weeks.
Presumption
I am tabling an amending bill to try and stop the immediate repeal of the Offences Against the Person Act 1861.
Before 28 weeks the medical and nursing staff to whom a woman goes will have to decide, on a case-by-case basis, whether the baby is capable of being born alive.
The presumption in law is that a baby is capable of being born alive only at 28 weeks, a presumption which is decades old and does not reflect advances in modern medicine. It is most unlikely that any doctor would challenge this presumption, despite the fact that we know that a baby can survive after birth from about 22 weeks (and babies have survived from 21 weeks).
If an abortion is carried out in these circumstances, there will be no investigation and no criminal prosecution. This would apply even in a case where a man, who does not want his wife/partner to have her baby, puts abortifacient medication in her food, for example, as has happened in an actual case.
Such a person could be prosecuted for poisoning under other parts of the Offences Against the Person Act 1861, but that will not even acknowledge that a baby has died, and the penalties for poisoning are more limited than those currently available for unlawful abortion.
In addition to this, between October 22 and March 31:
-There would be no legal mechanism to check whether a woman or girl has been forced to have an abortion.
-There will be no legal requirement that two doctors must certify in good faith, as in England and Wales, that an abortion is medically necessary for the mother.
-There will be no requirement for a doctor to be present to deal with any complications which may result.
-It will be possible to have an abortion anywhere, not just in hospital or other regulated places.
-There will be no provision enabling medical practitioners to exercise any right of conscientious objection to being involved in abortion.
-Abortion pills will be able to be given out in schools and the parents of the girl who is pregnant may never know, despite the fact that the medication to induce an abortion carries its own dangers.
-Private abortion clinics could operate without regulation.
This will be similar to the most draconian abortion legislation in the world.
Of course, the Assembly could be reconstituted by October 21. Sinn Féin had what has been described as three red lines in the talks which are currently under way – same sex marriage, the introduction of abortion and an Irish Language Act; the DUP say that they will go back without any conditions.
There will be no provision enabling medical practitioners to exercise any right of conscientious objection”
The British Parliament has now delivered the first two requirements of Sinn Féin. There is therefore, no reason why Sinn Féin would go back into the Assembly before October 21. Were they to do so, they would have to start renegotiating same-sex marriage and abortion. Now they don’t. They just have to sit and wait.
My concern is that one of those key demands involves the intentional taking of the life of babies not yet born – what a terrible basis on which to build a new Northern Ireland Government.
If the NI Assembly does not return, then between October 22, 2019 and the introduction of the new regulations setting out how abortion will work, (which must happen before March 31, 2020) there will be a period of five months when there will be no protection at all for the unborn child who has been in his or her mother’s womb for fewer than 28 weeks. I am tabling an amending bill to try and stop the immediate repeal of the Offences Against the Person Act 1861.