The Secretary of State can compel Stormont to act to implement abortion legislation due to the supremacy of Parliament, the high court has heard.
Peter Coll QC, acting for Brandon Lewis, said while his client recognises the sensitivities of the move, the “fundamental constitutional reality is that Parliament retains its supremacy and can legislate in the devolved sphere”.
The response came during a legal challenge to the Secretary of State intervening amid an impasse in the Stormont Executive over centrally commissioning full abortion services in Northern Ireland.
The region’s once-strict abortion laws were liberalised in 2019 following legislation passed by Westminster at a time when devolution had collapsed.
Stormont’s Department of Health has yet to centrally commission full services due to an impasse within the devolved administration.
This led to the UK Government introducing new powers to allow Mr Lewis to formally direct Stormont to begin the services.
He used the powers to direct ministers in Belfast to take the steps necessary to deploy abortion services across the region, with a deadline of the end of March 2022, as well as ordering “immediate support” for interim early medical abortion services in Northern Ireland.
The Society for the Protection of Unborn Children (SPUC) is seeking a judicial review of regulations introduced earlier this year.
They contend that Mr Lewis exceeded his legal authority when he granted himself an unprecedented level of control over abortion policy in Northern Ireland, and the powers are not exercisable while the Stormont Assembly and Executive are functioning.
Acting for SPUC, Northern Ireland’s former attorney general John Larkin QC told the High Court on Monday that there is an “absence of any duty on any person to comply with the directions”.
He contended Executive ministers could treat the regulations “like waste paper”, adding a minister of the Crown “cannot boss people about” if a law does not give them power to.
As the hearing continued on Tuesday, Mr Justice Colton said he was not aware of directions of this type before.
Mr Coll said the directions come amid a “very unusual state of affairs” whereby Parliament has acted in some respects to change the law of abortion directly and also instructed the Secretary of State he must implement paragraphs 85 and 86 of the CEDAW (Committee on the Elimination of Discrimination Against Women) report.
Mr Coll said when the Secretary of State makes direction, “the action in that direction must be taken”.
“The fact that the regulations do not create a specific mechanism of enforcement is entirely irrelevant,” he said.
“It can be plainly seen that Parliament was aware of and agreed to the provision of a power to the Secretary of State to direct that action not only be taken, but must be taken.”
Mr Coll described the Secretary of State as having “very wide and embracing power to bring about whatever changes to the law that appear to him to be necessary or appropriate”.
But he emphasised the regulations were not “simply a whim of the Secretary of State”.
“They are not something that the Secretary of State just got up of a day and decided to do, he is following through his section nine duty … and the regulations themselves are then subject to affirmative action by both Houses of Parliament,” he said.
“Parliament has agreed to it … the regulations are a statutory instrument in their own right.
“Parliament by law has given recognition to direction made by the Secretary of State which require persons must take action in accordance with the directions.
“That’s not to be characterised, as my learned friend characterises it, as the Secretary of State acting … to use his phrase from yesterday, ‘bossing people around’, it’s the Secretary of State acting entirely within the confines and intention of Parliament.”
Paul McLaughlin QC, acting for the Department of Health, said the department “remains committed to a process whereby it will prepare a specification for a commissioned abortion service in accordance with the 2020 regulations”.
It described it as a “statutory process which takes some time”.
“The minister’s intention is to seek to refer to and require prior agreement of the Executive before commissioning those services,” he said.
He also said the Secretary of State’s deadline of March 22, 2022 “might be too ambitious”, adding a “live question remains” around what will happen if the Executive does not agree to the commissioning of abortion services.
The Northern Ireland Human Rights Commission was granted leave to intervene in the case.
Yaaser Vanderman, acting for the commission, said it had done so due to the “significant daily implications for many people living in Northern Ireland”.
He highlighted findings of the CEDAW report that recommended abortion be legalised in Northern Ireland “at least in cases of rape, incest, threats to the life or health of the women or severe foetal impairment”.
He also pointed out that the report highlighted the “suffering experienced by women and girls who carried pregnancies to full term against their will due to the current restrictive legal regime on abortion”.
“It notes the great harm and suffering resulting from the physical and mental anguish of carrying an unwanted pregnancy to full term and then it says especially in cases of rape, incest and severe foetal impairment, particularly fatal foetal impairment,” he said.
Judgment has been reserved.
Earlier this year, judgment was reserved in a separate challenge taken by the NIHRC to the delay in the commissioning of central services.