Abortion, human rights, and devolution

Published: 1st Jun 2018

In brief

Claim

Human rights aren’t devolved in Northern Ireland.

Conclusion

In general human rights are a devolved matter in Northern Ireland, but the Assembly and Northern Ireland Ministers are required to comply with the European Convention on Human Rights.

“I fundamentally disagree with the idea of a British Prime Minister imposing whatever her view is on the people of Northern Ireland when it comes to a devolved issue.”

Kate Forbes MSP, 31 May 2018

“It's not devolved human rights, though. Human rights aren’t devolved.”

Caroline Flint MP, 31 May 2018

Human rights aren’t one thing, they are set out and protected by different parts of the law and government.

In general, human rights are a devolved matter for Northern Ireland, like anything that isn’t explicitly kept to Westminster.

The Northern Ireland Act 1998 established a Northern Ireland Human Rights Commission to “keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.”

However, the Assembly and Northern Ireland Ministers must comply with the European Convention on Human Rights. They can choose to establish human rights requirements that go beyond the Convention, but they cannot choose to have less human rights.

That rule comes from the peace agreement made to end the Troubles in Northern Ireland, known as the Belfast or Good Friday Agreement, which called for safeguards including: “the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission.”

The law on abortion is also a devolved matter. It’s currently covered by the criminal law in Northern Ireland.

How human rights relate to abortion legally is complicated. Many different abortion laws are possible within the European Convention on Human Rights, as the different laws in Northern Ireland, England and Wales and Scotland, and in Ireland show.

Next week the UK Supreme Court will issue judgement on a case brought by the Northern Ireland Human Rights Commission. It will decide whether abortion law in Northern Ireland is incompatible with the European Convention on Human Rights “in failing to provide an exception to the prohibition on the termination of pregnancy in Northern Ireland in cases of serious malformation of the unborn child/foetus or pregnancy as a result of rape or incest”.

This factcheck is part of a roundup of BBC Question Time. Read the roundup.


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