On Wednesday 27 February, Christian Legal Centre's Roger Kiska gave evidence to a parliamentary hearing on human rights and the abortion law in Northern Ireland. Here, he explains the issues at stake and why Westminster ought not to seek to overrule Northern Ireland's laws.
Parliament
On Wednesday, I had the honour of taking part in what I thought was going to be a Parliamentary hearing examining a very clear question, that is whether Westminster has any authority to legislate on the issue of abortion in Northern Ireland. The House of Common’s Select Committee on Women and Equalities however had another mandate in mind. It wanted to discuss not if, but how Parliament could intervene into Northern Ireland’s sovereign affairs.
The procedural question of legislative competency over abortion in Ireland is not as murky as some would have us believe. It has always been accepted that the issue of abortion is a devolved matter which falls exclusively under the jurisdiction of the Northern Ireland Assembly [Stormont]. Activists, including those in the political and judicial class, have tried to undermine that sovereignty by suggesting that prohibiting abortion in certain circumstances is a violation of the mother’s human rights. They point to Section 6(2)(c-d) of the Northern Ireland Act 1998 to do so, which states that laws which contravene either the European Convention of Human Rights, as read into our domestic law, or EU law, fall outside of Stormont’s competency and can be remedied by Parliament.
CEDAW and the Supreme Court
Two intervening events precipitated the committee hearing, and indeed the public consultation that led to the hearing. First, a UN compliance committee for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) issued a blistering report condemning Northern Ireland for its abortion laws in February 2018. Then in June, the Supreme Court issued a non-binding judgment suggesting that Northern Ireland’s prohibition of abortion in cases of rape, incest and fatal foetal abnormality were incompatible with the European Convention of Human Rights.
Based on these two events, the Committee met to hear oral evidence from experts on the subject. While there was a great deal of talk about victims, one thing that the Committee entirely ignored was the inherent worth of the unborn child.
House of Cards
The reality is, the entire premise that Westminster has legal competency to intervene into Northern Ireland’s affairs regarding abortion is built on a house of cards which requires us to accept 3 things: (1) the unborn child has no value or rights; (2) there is a human right to abortion; (3) the CEDAW committee’s periodic report on the United Kingdom and Northern Ireland has binding effect. Let’s look at these three issues in turn:
The Unborn Child
What is most shocking in all of this, is the lengths some in the establishment have gone to dehumanise and vilify the unborn child. One need look no further than paragraph 7 of the Supreme Court’s June judgment where the president of our nation’s Supreme Court quotes at length an article metaphorically likening an unwanted pregnancy to a type of parasite forcing its existence onto the mother, and expropriating her organs to filter out the poisons in its system. Then with language evidencing her disdain, she suggests that Northern Ireland has created a legal duty to “endure” that “invasion” for nine months. The invasion she is speaking of is the unborn child.
CEDAW was equally harsh condemning Northern Ireland for its conservative pro-life laws by saying that these laws commit violence against women and amount to cruelty and even torture.
As a civilised society we should all be uphauled by the rhetoric being used to demonise the unborn child. This is precisely the type of rhetoric that was used to stir up hate against Jews in the 1930’s and to justify slavery in the 19th century. What is particularly worrisome is that this hate is not coming from the uneducated or fringe. These pronouncements are being made at the highest levels of the political establishment. It is little surprise therefore that the Committee took no heed whatsoever, not once, to the innocent human life at the centre of this debate.
Supreme Court
Beyond the shocking rhetoric used to disregard the humanity of the unborn child, what should upset us all is that a judgment of this kind was issued at all. As Lord Reed rightly suggests at paragraph 334 of the judgment, it was highly unusual for the Court, after finding that the Appellant did not have standing to bring the case, to nonetheless draft a 143-page opinion of no-binding force whatsoever saying that they would have found elements of Northern Ireland’s laws on abortion to be incompatible with the Convention.
The Court would certainly not have been naïve as to the effect releasing such an opinion would have on public opinion, Stormont and Westminster. It acted not with judicial authority, but with activist intentions and with no political consequences to suffer for having done so. We must never forget that the Court is not a legislature, nor should it act as a political lobby.
The fact that it found, not in actuality, but in theory, that Northern Ireland’s laws protecting the unborn violated the Convention rights of hypothetical mothers is in itself remarkable. No other court, anywhere, has ever suggested that the Convention confers a right to abortion. The European Court of Human Rights, which is the Court tasked with interpreting the Convention, has gone so far on more than one occasion to explicitly say that the Convention does not confer a right to abortion. This was, for example, the language used by the Grand Chamber in A., B., and C. v. Ireland in paragraph 214 of its judgment. It was later reiterated by the Court in paragraph 96 ofP. and S. v. Poland. The Court, in Martins Ribeiro v. Portugal, has gone so far as to say that having laws which prohibit abortion are not per se violative of the Convention. Moreover, when the Court was invited to strike down Ireland’s prohibition of abortion based on fatal foetal abnormality in 2006, it declined to do so in the case of D. v. Ireland. In 2013, the Council of Minister of the Council of Europe, which oversees the Court, also refused to recognise a Convention right to abortion.
While it is true that on several occasions the European Court of Human Rights has found violations by Member States for not giving access to abortion, it did so on the basis that in those circumstances the competent domestic law-making authority had explicitly legislated an exception allowing for abortion. Precisely stated, the Convention has supervisory authority over abortion laws that are already on the books, but Member States are free to legislate whatever laws they wish to protect the unborn, including a full prohibition. Contrary to what the Supreme Court has said therefore, there is no right to abortion and this could not be any more clear from the case-law of the European Court. Incidentally, if one goes through the 347 paragraphs of the Supreme Court’s judgment, not once will they find a single case cited which suggests that the Convention confers a right to abortion.
CEDAW
The fact that Parliament has in part relied on February’s CEDAW report to justify undermining Northern Ireland’s sovereignty over its abortion laws should anger us all. First, the CEDAW Convention nowhere uses the word abortion or creates a right to abortion. In fact, many of the nations who crafted and debated the language of CEDAW and then ratified it, prohibited abortion in their nations at the time. It would strain credulity to suggest that a nation would agree to language whereby a UN Committee sitting thousands of miles away, could have authority over their national laws prohibiting abortion.
Imagine the implications if we accept the premise that a UN compliance committee can reinterpret treaties to create new obligations that states have never agreed to. Such a scenario would mean that a group of civil servants, with no special expertise or standing, would have unimaginable power to create new rights and obligations within our nation over which we have no power. This is the state of affairs the Women and Equalities Commission wants us to accept.
Excepting the dangers of agreeing to be bound by the CEDAW committee and its ultra vires actions, we should be equally concerned with just how radical February’s report was. It was a report not written by a neutral body, but by civil servant activists. The report is highly emotive and ideological, and as with every other participant in this debate, completely disavows the value of the unborn child.
Conclusion
Life is precious. The reality is that every successful abortion means that a human life has been ended. There have been 9 million abortions in England, Wales and Scotland since the Abortion Act was passed in 1967. Every procedural safeguard that was legislated back then has been eroded and are now largely ignored. Despite the mainstreaming of contraceptives, we still have more than 200,000 abortions in England, Wales and Scotland every year.
Northern Ireland has chosen a different path. They recognise the inherent worth of every child from conception.
Despite all the talk about victims during the committee hearing, what emerged, at least from some on the panel, was the true aim of the Select Committee. It is not to legislate for the hard cases. It is to create abortion on demand in Northern Ireland.
We must understand that we live in a world where many in our political class cannot even comprehend that an unborn child has value. Whether we accept that fact is another story. History will judge our generation for moments just like this. For my part, I pray we can do better. We must do better. The future of millions of innocent lives depends on us.