The Northern Ireland Human Rights Commission (NIHRC) is again having to go to court on the issue of human rights and access to abortion services in Northern Ireland (NI).

In July 2019, Westminster passed the NI (Executive Formation etc) Act (NI(EF)A) 2019, which includes, at s9, a requirement on the NI secretary to implement in full the recommendations of the UN Committee on the Elimination of Discrimination against Women (CEDAW) inquiry into abortion in NI.1Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: report of the committee, CEDAW/C/OP.8/GBR/1, 6 March 2018. The inquiry had held that the (then) law in NI created grave violations of human rights. Key recommendations included the decriminalisation of abortion in NI and that access to safe and free abortion should be introduced locally, with the NIHRC monitoring the implementation.

The NI(EF)A 2019 provided for decriminalisation from 22 October 2019 unless the NI Executive (then suspended) had been restored, and the introduction of abortion law reform by 31 March 2020. Following a consultation process, the NI Office introduced the Abortion (NI) (No 2) Regulations 2020 SI No 503, paving the way for the commencement of a service. Abortion was now to be provided without conditions for up to 12 weeks’ gestation and up to 24 weeks where there was a risk to physical or mental health.

The five health and social care trusts prepared to provide a service across NI, and did so after a false start, when the services were pulled following a message not to commence provision from the Department of Health (NI) (DoH), which was countermanded by a letter 10 days later from the chief medical officer for NI, who outlined that the trusts were entitled to proceed.2Siobhan Kirk et al, ‘Introduction of the National Health Service early medical abortion service in Northern Ireland – an emergency response to the COVID-19 pandemic’, BMJ Sexual & Reproductive Health, 12 January 2021. The DoH sent a paper on the issue to the NI Executive in April 2020, which did not get agreement, and a second paper in May 2020 requesting agreement to commission a service, which has yet to be considered. The DoH has issued no guidance on how a service should be provided. In the NIHRC’s monitoring, clinicians and managers have time and again made the point that healthcare providers are used to managing risk on a daily basis, but usually within a commissioned and funded framework with the appropriate guidance, information and support.

The trusts continued to provide a service by transferring resources from other sexual and reproductive health services that were in abeyance or facing reduced demands due to the COVID-19 pandemic. Initially, the service was largely confined to early medical abortions of up to 10 weeks rather than fully meeting the legal requirements, though later-term surgical interventions are being dealt with through the Belfast Health and Social Care Trust. In October 2020, the Northern Health and Social Care Trust ceased to provide a service due to staff constraints, though it was restored with a locum from early January 2021, while the South Eastern Health and Social Care Trust ceased the service from 5 January 2021 as the clinical provider went on maternity leave. For women living in the area covered by the trust, the options are to travel to England under the alternative pathway for a service, travel elsewhere in Ireland and pay €450, or use unregulated services and obtain pills via the internet. The options to use a regulated service mean travelling and this raises public health issues.

The NIHRC has now lodged judicial review proceedings against the NI secretary (for failing to meet the legal duty within the NI(EF)A 2019) and the NI Executive and DoH (for a breach of article 8 of the European Convention on Human Rights – the right to family and private life). In response, the NI secretary’s legal representatives have said he is doing all that he reasonably can to persuade the devolved administration to deliver a commissioned service, the DoH has outlined that it is seeking to commission a service but cannot get NI Executive agreement, and the NI Executive has argued that it is a matter for the DoH. In effect, it is a perverse game of pass the parcel where the music never stops.

Resolving the matter locally would be preferable; nonetheless, the duty to see the CEDAW recommendations implemented falls to the NI secretary, who has powers to resolve the matter through Westminster if required. The reality is that a long-term resolution of ensuring human rights-compliant access to abortion services should be through the legislature and not the courts.