Leah Rea examines the role of the UK Parliament in ensuring compliance with the UK’s obligations under international human rights law within the context of devolution, in the absence of legislative intervention from successive UK Governments to address inaction by the Northern Ireland Executive.
Human rights discourse occupies a prominent role in Northern Ireland’s politics, with the issue of rectifying state non-action of protection of human rights arguably as old as the province itself. As evidenced by both historic and contemporary legislative records, the progression of human rights standards in Northern Ireland has always been problematic. The example of the 1960s civil rights movement illustrates both the historic propensity for the politicisation of human rights in the region, and the difficulty of securing legislative change in i) the absence of progression at devolved level, and ii) the absence of intervention by the UK Government, particularly when the Government evades international obligations. In recent years, the discussion has been framed within the context of devolution, focusing on where does legislative competency reside, and specifically, at what political juncture can legislative intervention be sought from the UK Parliament to rectify human rights issues in Northern Ireland? As we wait on the Northern Ireland Office (‘NIO’) to implement the pledge made by the Secretary of State for Northern Ireland to introduce the draft Irish language legislationpublished in conjunction with The New Decade, New Approach Agreement 2020, it is worth recalling the UK Parliament’s role as a human rights “defender” vis-á-vis the operation of the Sewel Convention in the context of Northern Ireland’s abortion law between 2018-2019.
Using parliamentary procedure to highlight human rights
Following an early election in March 2017, agreement to form the Northern Ireland Executive could not be reached and subsequently the devolved institutions did not function in Northern Ireland until January 2020. During this time, there were key developments in the recognition of the human rights violations arising from the then law governing abortion in Northern Ireland. In light of these, parliamentary procedure was utilised within the House of Commons to raise the particular matter of human rights in relation to abortion law in Northern Ireland, the UK Government’s corresponding non-compliance with international human rights law, and the need for legislative intervention in the absence of the devolved institutions.
Emergency Debate and navigating Sewel
Following the referendum result to repeal the Eighth Amendment to the Irish Constitution, the constitutional prohibition on accessing abortion, grassroots movements in Northern Ireland called for urgent legal reform to address widening geographical disparity in abortion access and human rights. With the Abortion Act 1967 limited in territorial application to Great Britain, the then legal framework in Northern Ireland comprised of sections 58 and 59 of the Offences Against the Person Act 1861: abortion was only legal to protect the mother’s life, or cases where her mental and/or physical health was seriously at risk, and could not be accessed in cases of Fatal Fetal Abnormality (FFA), rape and incest.
The development invoked fresh political impetus: Labour backbencher Stella Creasy MP utilised Standing Orders (No 24) to bring an emergency debate to the House of Commons on 5 June 2018 for the House to consider its role in repealing sections 58 and 59 of the 1861 Act. Creasy aimed to bring the operational impact of the 1861 Act to the attention of the House – and commence the argument that in the absence of a sitting Assembly, it was the responsibility of the UK Government under international human rights law to legislate to address human rights violations in Northern Ireland.
In the context of Northern Ireland, Creasy referenced the findings of the UN CEDAW Committee inquiry that women and girls had been subjected to “grave and systemic violations of rights”. Conscious there were concerns regarding undermining the constitutional arrangements of devolution, Creasy emphasised the 1861 Act continued to operate across the UK, so Parliament was required to act to remedy the issue on a UK-wide basis. However, she noted the Belfast/Good Friday Agreement 1998 provided for the UK Government “to legislate as necessary” to ensure the UK’s “international obligations” are met in respect of Northern Ireland. Conversely, the then Secretary of State for Northern Ireland upheld the Sewel Convention, stating as abortion was a devolved matter it “would not be appropriate for Westminster” to intervene. Ultimately, the House resolved its affirmation of the motion – and its role as a human rights “defender”.
The Urgent Question and a change in tactics
Shortly after the emergency debate, on 7 June 2018, the UK Supreme Court delivered its judgment in the judicial review brought by the NIHRC against the Department of Justice under the Human Rights Act 1998 on the basis the existing law violated Articles 3, 8 and 14 ECHR of women and girls by criminalising abortion access for FFA, rape and incest. A majority of the Court determined the law was incompatible with Art 8 ECHR in respect of not providing access to women and girls in these circumstances. Responding to the judgment, Creasy availed of procedure to ask an urgent question. In this instance, Creasy directly challenged the Secretary of State for Northern Ireland on the Government’s position of the incompatibility of the 1861 Act with human rights, further urging for the Government to progress the draft Domestic Abuse Bill and adopt it as a vehicle to repeal sections 58 and 59 on a UK-wide basis. She called upon the House, with “its responsibility” under the 1998 Agreement to uphold human rights in Northern Ireland, to “do our job” and call for legislative action. Again, the Secretary of State for Northern Ireland invoked the Sewel convention, asserting the matter was within the legislative competence of the devolved institutions and so the responsibility of Northern Ireland politicians alone, and would not commit to recognising the UK Government’s obligations under international law.
Westminster intervenes: the Northern Ireland (Executive Formation) Bill
Political negotiations continued in Northern Ireland throughout 2019, and by June 2019 the period outlined within s1 of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 for Executive formation had expired. To enable the continuation of negotiations, the Secretary of State introduced The Northern Ireland (Executive Formation) Bill to extend the available timeframe. Illustrating the UK Government’s need for the Bill to come into effect promptly, the Bill was subjected to a fast-track process. Whilst this process usually restricts Parliament’s ability to scrutinise Government Bills, in this instance the accelerated schedule proved feasible for tricky amendments to challenge the Government to uphold its international obligations. Creasy availed of the situation, tabling an amendment (New Clause 10) which obligated the Secretary of State, in the event of continued absence of devolved government in Northern Ireland, to implement the 2018 recommendations of the UN CEDAW Committee. This marked a significant change in Creasy’s tactics: here now was an attempt for direct legislative action from Westminster to rectify human rights issues in Northern Ireland. The Sewel Convention notwithstanding, the amendment was accepted by the Speaker’s Office for consideration.
Proposing her amendment at Committee stage, Creasy acknowledged the House must “tread carefully” in relation to achieving a balance between respecting the devolution arrangement and upholding human rights standards, but affirmed the role of Parliament as a human rights “defender”, emphasising the obligations of the House in accordance with the Belfast/Good Friday Agreement as regards safeguarding human rights in Northern Ireland. She submitted the UK Parliament had failed to adhere to its obligations and had a responsibility to intervene in the continued absence of devolved government.
Responding for the Government, Minister for the NIO, John Penrose stated devolved issues should be the responsibility of the devolved institutions; Parliament should “tread carefully” within the devolved context. The pattern of affirming Sewel then ceased, as the Minister acknowledged the prolonged absence of devolved government in Northern Ireland, and “the result” of which was the list of human rights related amendments. The Minister further noted amendments on issues of conscience, such as the Creasy amendment, were “traditionally free votes” and confirmed the Government would not “break that important principle”. In the absence of a whipping operation Creasy’s amendment was approved by a parliamentary landslide of 332 votes to 99. The Bill as amended was subsequently carried at Third Reading and came into force on 9 July 2018.
Whither Sewel?
It is interesting to chart the developments in this case study as regards navigating the Sewel Convention. Creasy initially sought to uphold Sewel: her original proposal was for the May Government to repeal the relevant sections of the1861 Act via the draft Domestic Abuse Bill and on a UK-wide basis, using the situation of human rights concerns in Northern Ireland as grounds for the necessity of this. However, following the judgment of the Supreme Court just two days later, Creasy emphasised the House’s particular role under the 1998 Agreement as regards human rights in Northern Ireland and urged for the May Government to directly intervene in light of the political vacuum in Northern Ireland. Her successful amendment to the 2019 Act therefore marked a turning point for the Sewel Convention, suggesting that in the event of a human rights violation in the devolved administrations, the UK institutions may intervene on the grounds of their role as final guarantors of human rights obligations in international law. Can we now interpret “will not normally legislate” in the context of upholding international human rights? Equally, we must consider that the requirement of consent under Sewel was a determining factor: in the absence of the devolved institutions, consent could not be acquired.
Moreover, the case study appears to suggest in the situation of a conflict between the convention of free votes upon conscience issues and the Sewel convention affirming devolved legislative competencies, the former takes precedence. Could the role of the UK Parliament as a human rights “defender” depend on individual Parliamentarians according to their own conscience? Or, was relying on the conscience convention an exercise in political expedience for the May Government to navigate the situation Creasy had created with her significant amendment in a tight timeframe? As the NIO recently introduced the The Abortion (Northern Ireland) Regulations 2021 – which empower the Secretary of State to issue direction to comply with the 2018 UN CEDAW Committee recommendations in Northern Ireland – in light of ongoing failure of the Northern Ireland Executive to fully commission abortion services, and so continuing with Westminster intervention in Northern Ireland, the situation on a contentious issue remains complex. The problem of human rights progression in Northern Ireland goes on.
Leah is a PhD Researcher at the Transitional Justice Institute at Ulster University. Her research focuses on examining the relationship between constitutional conventions established by devolution settlements, and the progression (or hindrance) of human rights standards in Northern Ireland. This blog post is based on a paper delivered at the PSA Parliaments Conference 2021.