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The importance of subsidiarity in the Northern Ireland abortion debate

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Roger Kiska comments on Parliament's decision to effectively force abortion onto Northern Ireland. This article was originally posted on Acton Institute and has been republished with permission.

On Tuesday, July 9, the Parliament of the United Kingdom voted to override the views of voters in Northern Ireland and legalise abortion and same-sex marriage, if a devolved government is not restored by October 21. These amendments are a naked aggression upon Northern Ireland’s sovereignty. MPs took this action despite health care being a devolved power, and despite growing signs of tension between Stormont and Westminster.

What issue could be so important that Parliament would risk peace and maintaining the territorial integrity of the United Kingdom by passing measures which directly contravene legislative powers belonging exclusively to the Northern Ireland Assembly? The answer is political opportunism. Following the results of a UK Parliamentary inquiry by the Women and Equalities Committee calling on Westminster to liberalise the abortion law in Northern Ireland, Labour introduced amendments into the Northern Ireland (Executive Formation) Bill which would give effect to the Committee’s recommendations. Several points bear highlighting.

First, not a single member of the Women and Equalities Committee actually serves in a Northern Irish constituency, meaning that the recommendations to abuse the devolution agreement were made exclusively by MPs in jurisdictions other than those representing the people affected by the recommendation. Furthermore, and equally important, not a single MP from Northern Ireland voted in favour of the abortion amendments when the issue came before Parliament. In other words, these actions were taken, not only without the consent of Northern Irish elected representatives, but despite the unanimous objection of Northern Ireland’s MPs.

Second, and equally scandalous, is that there was no legal basis whatsoever to introduce the measures. It is important to note that there are extremely limited grounds upon which Westminster can interfere with existing devolved legislation in Northern Ireland. Those conditions are laid out in Section 6(2)(c-d) of the Northern Ireland Assembly Act 1998, and dictate that where a provision of an Act of the Assembly is incompatible with EU law or the European Convention of Human Rights, Westminster may intervene. The problem here is that no finding of incompatibility that would have any legal effect has ever been made, either by the domestic courts in the United Kingdom or the European Court of Human Rights.

Instead, Parliament has relied upon the findings of the United Nations’ Committee on the Elimination of Discrimination Against Women (CEDAW) as a premise to change the law. This position is not only unsustainable; it is laughable. Apart from having no legal basis to support a change in the law under the Northern Ireland Assembly Act, the Convention itself nowhere mentions abortion. Nor would it make any sense for that Convention to confer a right to abortion, given that many of the nations which ratified it continue to have abortion laws that are broadly protective of the unborn in their own countries and would have never have agreed to language which would have unwittingly changed their domestic laws on such a sensitive moral issue.

The truth is that the CEDAW committee are a group of rogue, unelected, self-styled experts who are neither judges nor legislators. The report being referenced by the abortion amendments was not written by a neutral body but by civil servant activists. 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 unaccountable civil servants, with no universally recognized expertise or standing, would have unfathomable power to create new rights and obligations within any nation, which that nation would have no power to resist. To illustrate the committee’s utter lack of credibility, last March it suggested that abortion should be decriminalised in all cases and everywhere.

So flimsy is the legal basis for these amendments, that the amendments themselves state that a future devolved government in Stormont may overturn these amendments should it choose to do so. If Parliament really believed that the current abortion law in Northern Ireland was in breach of existing human rights obligations, this caveat would never have been built into the amendments.

The move to push the anti-Northern Irish amendments might be viewed by some as politically shrewd. Amidst a power vacuum caused by the resignation of Prime Minister Theresa May, and an unsteady government coalition requiring the Conservative Party to keep Northern Ireland’s Democratic Unionist Party happy, there was much to be gained by pushing the abortion agenda. Not only were ideologues able to push the abortion amendments through, but the ensuing promise of Westminster to act on the amendments might break the coalition and lead to a snap election.

The problem with this political opportunism is that it comes at an incredibly high price. Peace with Northern Ireland came slowly and violently. The Parliament of the United Kingdom would do well to recall the blood, violence and conflict that precipitated the Good Friday Agreement and the establishment of a devolved system of government in Northern Ireland. It would do well to pay attention to the growing strife there as well, amidst the backdrop of contentious Brexit negotiations which include the controversial backstop question. We need look no further then April of this year for evidence of growing discontent in the region, when journalist Lyra McKee became a casualty of dissident republican riots in Londonderry which have been labelled by security forces as an act of terrorism.

Devolved government, based on the theory of subsidiarity, has been a guarantor of peace and stability. It has assured all parties have a voice in their own government and helped bring peace among people of divergent national and religious backgrounds. This system ought not be discarded for political opportunism.

Will risking peace to pass amendments underpinned by the shakiest of legal grounds just to have liberalised abortion in Northern Ireland – or a Labour government in Westminster – be worth it? If history is any indicator, the events of this week may have consequences far more wide-reaching than anyone is currently speaking about.

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