On 21 October, the failure of a last-ditch attempt at the Stormont Assembly to stop abortion law changes in Northern Ireland, triggered the introduction of new provisions under the  Northern Ireland (Executive Formation etc) Act 2019 (“the Act”). As reported in our weekly round-up of 14th July 2019, amendments were introduced during the passage of the Act which inter alia obliged the Westminster government to bring forward legislative proposals to reform Northern Ireland’s abortion law and to make provision for same-sex marriage, unless a Northern Ireland Executive was formed before 21 October 2019.

In his to the Commons on 21 October 2019, the Secretary of State for Northern Ireland, Julian Smith, described the progress towards restoring devolution in the light of the extension of the period in which the legal duty to call an Assembly election is removed under s.2 of the Act; he also issued a written statement Executive Formation: Extension Period. He explained:

“The period for Executive formation under the terms of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 is due to expire at the end of today, Monday 21 October, so I have laid before Parliament a statutory instrument to extend the period for Executive formation to 13 January 2020 [The Northern Ireland (Extension of Period for Executive Formation) Regulations 2019]. That has the effect of ensuring that Northern Ireland Departments can continue to make decisions in accordance with the Act in the absence of Executive Ministers. Colleagues should be clear that the Act only provides guidance to the Northern Ireland civil service and is no substitute for everyday political decision making”.

During questioning, he :

“On abortion and same-sex marriage, there is clearly concern about how the Assembly can have an influence now that the law is changing. It can have an influence, but we need to be clear that, from tomorrow, the law will have changed across those two areas. Obviously we will hear the views of and work with the Assembly, but the law will change from tomorrow.”

Abortion

Our post Abortion in Northern Ireland from 22 October 2019 reviewed the provisions relating to abortion. In summary, whilst ss.58 and 59 of the Offences Against the Person Act 1861 in Northern Ireland (attempts to procure an abortion) have been repealed and there is a moratorium on new and on-going prosecutions relating to these offences, other relevant laws relating to the termination of pregnancy remain in place, in particular, s.25(1) of the Criminal Justice Act (Northern Ireland) 1945. Significantly, section 25(2) states:

“For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive.”

This reflected foetal viability in the United Kingdom at the time of the legislation and the relevant law in Northern Ireland has not been amended since 1945. In England and Wales, changes were made to the Abortion Act 1967 through the Human Fertilisation and Embryology Act 1990, and the time limit was lowered from 28 to 24 weeks.

It also remains illegal to purchase medical abortion pills online without a prescription. Furthermore, the Government anticipates that access to abortion services will not be routinely available in Northern Ireland during the interim period (i.e. until 31 March 2020) in the absence of a legal framework and the time needed to establish high-quality service provision. “Fully funded abortion services in England are already available to women in Northern Ireland and from 22 October 2019, when accessing these services in England all travel and accommodation costs will be covered automatically, without the income-related eligibility criteria currently applied”.

Same-sex marriage

On same-sex marriage and opposite-sex civil partnerships, the Secretary of State informed the Commons that regulations are to be made no later than 13 January 2020 – i.e. the end of the period to which the period for Executive formation was extended by The Northern Ireland (Extension of Period for Executive Formation) Regulations 2019, supra. The government will be consulting in two key areas: how to allow for religious same-sex marriage ceremonies; and the issue of conversion from civil partnership to marriage and vice versa. However, he said “[t]his will not detract from the regulations by 13 January 2020, providing for civil same-sex marriages and opposite-sex civil partnerships. The first civil same-sex marriages will take place in the week of Valentine’s Day 2020”. [Readers will be aware that under section 2(2) Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, regulations relating to opposite-sex civil partnerships in England and Wales must be made before 31 December 2019].