Abortion: SPUC loses challenge against NI secretary of state

Anti-abortion campaigners protested outside the High Court in Belfast on Thursday

Anti-abortion campaigners have lost an appeal after they challenged the way in which the government introduced full abortion services in Northern Ireland.

In 2021, the then NI Secretary Brandon Lewis was granted unprecedented powers to compel Stormont's Department of Health to set up a permanent service.

The Society for the Protection of Unborn Children (SPUC) argued the NI secretary exceeded his authority.

However, the Court of Appeal ruled that the NI secretary acted lawfully.

In the ruling, Lady Chief Justice Dame Siobhan Keegan identified a requirement to implement the recommendations of a United Nations (UN) report which found women's rights were being breached by limited abortion access.

Northern Ireland was the last part of the UK to liberalise its abortion law.

The UN Committee on the Elimination of Discrimination Against Women (CEDAW) published a highly critical report about the lack of abortion access in 2018.

The following year, Westminster MPs voted 332 to 99 to liberalise abortion in Northern Ireland.

The July 2019 vote was taken in the absence of a functioning devolved government at Stormont, and decriminalisation was implemented three months later.

Devolution was restored in 2020, and under the terms of the Northern Ireland (Executive Formation etc) Act 2019, the Northern Ireland secretary was tasked with implementing the CEDAW recommendations.

But abortion still faced some opposition at Stormont, and although terminations were legalised, they were only available on an ad hoc basis.

Brandon Lewis held the post of NI secretary from February 2020 until July 2022

In March 2021, Mr Lewis was granted powers allowing him to order Stormont's Department of Health to commission a full abortion service.

His successor, Chris Heaton-Harris, has continued with this policy.

But SPUC argued Stormont assembly members should make decisions about abortion services.

SPUC challenged the legality of the 2021 regulations, arguing constitutional arrangements contained in the 1998 Good Friday Agreement meant the secretary of state went beyond his legal authority.

However the Chief Justice dismissed all grounds of challenge, saying there was an obligation to direct on implementation of the CEDAW recommendations.

"The focus here is upon regulations and directions mandated by a primary Act of Parliament which require the secretary of state to ensure compliance with the CEDAW recommendations," she explained.

"A choice was made to structure the law in that way in Northern Ireland."

Disability cases

After dismissing SPUCs appeal, the court acknowledged a further argument on the potential consequences of full abortion services for pregnancies involving a severe foetal impairment (SFI).

Under the CEDAW recommendations abortions should be legalised for SFI cases "without perpetuating stereotypes towards persons with disabilities".

SPUC argued that could send a message that disabled people's lives are of lesser value.

Suggesting further guidance may be issued, Dame Siobhan said it was difficult to see how the secretary of state could comply with his duty to implement the CEDAW recommendations without perpetuating negative stereotypes.

"It remains to be seen how this is feasible in practice as regards severe foetal impairment and whether the issue may be further clarified by the international bodies who deal with the elimination of discrimination against women and the rights of persons with disabilities."