The victory for the ‘Yes’ campaign in the Republic of
Ireland’s Referendum on Abortion, does not necessarily mean that the campaign
for (and against) abortion is finished. Rather the Referendum is just the start
of the process to introduce abortion on the island of Ireland. Legislation,
legal challenges, and the possibility of the debate extending to the Republic
of Ireland northern neighbour, the debate over whether abortion should be
legalised or not has only just begun.
Prior to the referendum I wrote a piece on the arguments for
and against repeal of the Eighth Amendment ('Repeal' or 'Keep' the Eighth?
Ireland's Referendum Debate), similarly to the last article I will endeavour to
be neutral as possible and present the facts as I currently see them.
The ‘Yes’ vote won the referendum by 66.4% too the no
campaigns 33.6%. Although the vote to repeal the Eighth Amendment to the Irish
Constitution has come to an end, what will happen now to Ireland’s laws
regarding abortion? Currently a Bill, Thirty-Sixth Amendment of the
Constitutional Bill 2018, has been presented to the Oireachtas (Parliament of
Ireland) for consultation, and if the bill is passed (yes, the TDs and
Senator’s will get a vote on the issue before it is ratified by the Parliament
and sent to the President) this will open the way for an abortion law to be
presented to the Irish Parliament. During the referendum campaign the Irish
government published a policy proposal, entitled Regulation of Termination of Pregnancy, which will be the bedrock
of any abortion law presented to the Irish Parliament.
Although this process is common within a Western styled
Democracy, challenges and implication have emerged to the subsequent ‘yes’ vote
on the 25th May referendum result. Three separate challenges, or
applications, have been brought to the Irish High Court arguing that the
referendum campaign had several illegalities resulting in an unfair advantage
give to the ‘yes’/Pro-Choice campaign. The applicants have brought allegation
“that student voters were not properly registered, concerns about tallies,
balance in RTE’s coverage, the Referendum Commission’s information campaign and
booklet and statements by the Taoiseach (Irish Prime Minister) and the Minister
for Health during the campaign”. This raises the question of whether the new
law regarding abortion will be held up until the cases are heard in the Irish
High Court. Furthermore, it may also suggest that irregularities in the conduct
of referenda (I have the UK EU Referendum in mind here, as many accusations of
irregularity have been brought to light) on such important questions. But such
an eventuality will not be discussed in this article, rather it’s just a
thought to consider.
The main implications from the result of the referendum
result may also affect the Republic of Irelands neighbours, Northern Ireland.
Like the Republic, Northern Ireland has restrictive laws in regard to abortion
(only allowing abortions in cases where the mother’s life is in danger). However,
unlike the rest of the UK that allows abortion under the Abortion Act 1967,
Northern Ireland is exempt from such an act.
But a question remains, does the UK government and
Parliament have the right to change Northern Irelands abortion laws? The issue
of abortion, as in the Republic is an emotive one. However, the UK Parliament,
after the passing of the Northern Ireland Assembly Act 2010, the right to
determine abortion policy was devolved to the Northern Ireland Assembly.
Although the UK Parliament remains the central authority, capable of
overturning decisions made by dissolved Parliament/Assemblies, it is unlikely
Westminster will intervene on such a matter. As the
It is also an established convention that the UK government
will not overturn the decisions of a devolved Assembly if that area of
legislation which the Assembly has voted on falls into the category of
‘devolved powers’ or none ‘reserved powers’.
According to the UK Supreme Court, the current legislation
in Northern Ireland “is incompatible with the human rights law”, However the
judges rejected the appeal that had been filled in 2013 stating that “if it was
an individual who had brought this case who had been a victim of this law they
would have been likely to side with them”. But this raises another question, if
a personal case is brought before the Supreme Court with the judges siding with
those who brought the case, would that make the clauses in the Northern Ireland
Assembly Act 2010 redundant? As both Human Rights and the Northern Ireland Act
are both enshrined in UK law?
While pressure for the 1967 Act to be applied in Northern
Ireland has been put on Westminster many obstacles still stand in its way. One
notable one would be that the UK government currently needs the support of the
DUP (who are against extending the 1967 Act to Northern Ireland) in the
Commons. What is also notable about Northern Ireland is that there are both
Catholics and Protestants (mainly Presbyterians) that are strongly affiliated
to their respective faiths, which both reject abortion. Therefore, it is
unclear whether a vote in the Northern Ireland Assembly would be in favour of
extending the 1967 Act. One final obstacle would be the legality or willingness
of the UK Parliament to interfere in, what essentially is a devolved matter,
this could create a precedent upon which the UK Parliament could also interfere
in other devolved matters (not only in Northern Ireland but also Wales and
Scotland).
I therefore conclude that the debate surrounding abortion
has many obstacles upon which the UK government would seek to avoid
confronting. With Brexit negotiations and a small majority within the Commons,
May’s government would avoid this subject as much as possible if only to preserve
her government by not risking the support of the DUP.
Notes;
