The Northern Ireland Executive and Assembly have not sat since January 2017. As a result, decision-making has been left in the hands of senior civil servants, who have been reluctant to take decisions of any significance in the absence of ministers. Legislation had been put in place to extend the period for forming an Executive and to allow certain decisions to be taken in the absence of government ministers (the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018). The legislation was due for renewal in July 2019.

During the passage of the new Act, a number of amendments were passed to the bill as initially presented. In particular, Northern Ireland (Executive Formation etc) Act (NI(EFe)A) 2019 s9 made provision that if the Executive was not restored by 21 October 2019, the Northern Ireland secretary must ensure that the recommendations of the UN Committee on the Elimination of Discrimination against Women (CEDAW) inquiry into abortion law are implemented by 31 March 2020.1Inquiry 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. In addition, no investigation may be carried out and no criminal proceedings brought or continued under Offences against the Person Act (OPA) 1861 ss58 and 59. Again, this provision will apply from 22 October 2019 unless the Northern Ireland Executive was restored.

NI(EFe)A 2019 s8 also provided that, in the absence of such restoration in October, same-sex marriage and civil partnerships for opposite-sex couples will be introduced by 13 January 2020.

Northern Ireland’s current law provides access to abortion in extremely narrow circumstances. In effect, based on common law, an abortion is lawful in circumstances where there is either a risk to the life of the mother or continuing the pregnancy would cause serious and long-term harm to her physical or mental health.2See Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 39 at paras 47–96. Under OPA 1861 ss58 and 59, the procurement of, or assistance with procuring, an abortion unlawfully is a criminal offence carrying a sentence of up to life imprisonment. The impact has been that only 12 terminations were carried out in Northern Ireland in 2017/183Northern Ireland termination of pregnancy statistics 2017/18, Department of Health NI, 23 January 2019, page 1. while 1,053 women travelled to England and Wales for an abortion in 2018.4Abortion statistics, England and Wales: 2018, Department of Health and Social Care, 13 June 2019, para 2.56, page 21.

A number of international human rights treaty monitoring bodies have called for decriminalisation and reform of the law on accessing abortion in Northern Ireland.5For recent examples, see the UN Committee on the Rights of the Child’s Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/5, 12 July 2016 and CEDAW’s Concluding observations on the eighth periodic report of the United Kingdom of Great Britain and Northern Ireland, CEDAW/C/GBR/CO/8, 14 March 2019. As a result, the Northern Ireland Human Rights Commission (NIHRC) took a case in its own name without a victim to challenge the law's compliance with human rights under the European Convention on Human Rights, specifically article 3 (freedom from torture, inhuman and degrading treatment), article 8 (right to private life) and article 14 (freedom from discrimination).

In June 2018, the Supreme Court ruled by a majority of four to three that the NIHRC did not have the powers to take the case without a victim,6Re application by the NIHRC for judicial review [2018] UKSC 27. a matter that the then Northern Ireland secretary publicly stated would be corrected by the end of 2019.7See House of Commons Women and Equalities Committee, Abortion law in Northern Ireland: government response to the committee’s eighth report of session 2017–19. Tenth special report of session 2017–19, HC 2595, 2 August 2019. Nonetheless, the Supreme Court went on to indicate that notwithstanding the question of standing, the current law did not meet article 8 in cases of fatal foetal abnormality (by five to two) and for victims of rape and incest (by four to three). Lord Mance described the current legislative position as ‘untenable’ and in need of ‘radical reconsideration’.8Re application by the NIHRC for judicial review, para 135. On 3 October 2019, in Re application by Ewart for judicial review [2019] NIQB 88, the Northern Ireland High Court followed the Supreme Court’s analysis in holding that the lack of access to abortion in cases of fatal foetal abnormality was a breach of article 8.

After the Supreme Court hearing, CEDAW published the report of its inquiry into abortion law following a complaint from a number of organisations in Northern Ireland.9Inquiry 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 concluded that the law criminalising women and others and restricting access to abortion constituted grave and systematic violations of rights under the Convention on the Elimination of All Forms of Discrimination against Women. The report issued a series of recommendations, which are summarised in the box below.

The Northern Ireland secretary is responsible for implementing the legislation and has outlined the intention that arrangements will be put in place to manage the interim period between 22 October 2019 and 31 March 2020. In addition, anticipatory work is underway within government departments in Northern Ireland to formulate policy, and provide advice and guidance, reviewing international models where necessary and preparing engagement and communications.10Report pursuant to sections 3(1), 3(6), 3(7), 3(8), 3(9) and 3(10) of the Northern Ireland (Executive Formation etc) Act 2019 – regarding Executive formation; transparency of political donations; higher education and a Derry university; presumption of non-prosecution; Troubles prosecution guidance; and abortion law review, Northern Ireland Office, 4 September 2019.

The Northern Ireland secretary has sought the NIHRC’s formal advice under Northern Ireland Act 1998 s69. Its view is that from 22 October 2019 to 31 March 2020 the law on abortion will not have changed save for decriminalisation and an end to investigations and prosecutions. As a result, the law will still not be human rights-compliant and consideration needs to be given to improving the pathway for women to travel to Britain by providing free transport and accommodation (rather than the present means-tested arrangements). Moreover, arrangements will need to be made to cover circumstances where human rights are breached and a woman is unable to travel. It is expected that the arrangements to apply after 31 March 2020 will be subject to public consultation.

The response from the Northern Ireland Office confirmed that transport and accommodation will no longer be means-tested and that freedom of conscience arrangements will follow current General Medical Council guidelines. Moreover, following the Ewart judgment, terminations should now be available in Northern Ireland in cases of fatal foetal abnormality. A prosecution of a mother who provided pills to her 15-year-old pregnant daughter has also been dropped.

Unlike the rest of the UK and Ireland, same-sex marriage has not been introduced in Northern Ireland.12See the Marriage (Same Sex Couples) Act 2013 in England and Wales, the Marriage and Civil Partnership (Scotland) Act 2014 in Scotland and the Marriage Act 2015 in Ireland. The absence of same-sex marriage was subject to two legal challenges on human rights and other grounds. The Northern Ireland High Court ruled that neither the failure to provide for same-sex marriage nor provisions to treat a same-sex marriage entered into elsewhere in the UK as effectively a civil partnership in Northern Ireland were unlawful.13Re application by Close and others for judicial review [2017] NIQB 79 and Re X [2017] NIFam 12. The judgments were appealed and are awaiting judgment by the Court of Appeal in Northern Ireland.

In the case of civil partnerships for opposite-sex couples, the Supreme Court held in June 2018 that the Civil Partnership Act 2004 in England, Wales and Scotland was not compatible with the European Convention on Human Rights as it only applied to same-sex couples and amounted to discrimination contrary to article 14 of the convention in conjunction with article 8.14R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32. The government announced its intention to change the law in England and Wales.15Hansard HC Debates vol 643 cols 896–897, 27 June 2018. In Northern Ireland, the consideration of legal reform had not been possible in the absence of the Assembly, though, in any event, the lack of equal marriage and a move to civil partnerships for opposite-sex couples was likely to have proved contentious in some political quarters.

Politically and publicly, it appears that the introduction of same-sex marriage and opposite-sex civil partnerships will proceed relatively seamlessly as planned. The introduction of abortion law reform is likely to be much more contentious. Both pro-life and pro-choice organisations have held well-attended rallies in Belfast.

Pro-life organisations have raised the spectre of a ‘free-for-all’ with sex selection abortion coming into effect once prosecutions and investigations fall away, despite the presence of professional clinical duties, current Department of Health guidelines and other potential criminal sanctions.16See, for example, articles on the Evangelical Alliance statement to the News Letter newspaper in Northern Ireland: ‘Human rights body challenged over “loss of NI abortion safeguards”’ (News Letter, 16 September 2019) and ‘Northern Ireland Human Rights Commission on abortion: “Unborn child has no human rights”’ (News Letter, 17 September 2019). A consultation document on how the arrangements will be implemented and new guidance to clinicians are likely to be hotly contested and procedural or other legal challenges cannot be ruled out.