John Larkin QC

Belfast law firm Hewitt & Gilpin has been instructed by the Centre for Bioethical Reform Northern Ireland (CBRNI) and the Society for the Protection of Unborn Children (SPUC) to mount a challenge to the Abortion (Northern Ireland) Regulations 2021.

Earlier this month, the campaigners announced they would be represented in court by John Larkin QC, who stepped down as Attorney General last summer after a decade in the post.

The grounds of the court challenge are constitutionally complex and Mr Larkin has laid them out in full detail in the papers which state that SPUC contend the following seven points:

1. Sections 9 (4) and 11 (2) of the Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”) do not (and neither of them does) give the Proposed Respondent power to amend or bypass the Northern Ireland Act 1998 (“the 1998 Act”). The 2021 Regulations impliedly purport to amend the 1998 Act by giving the Proposed Respondent a power greater than he possesses under section 26 of the Act and are therefore ultra vires.

2. The powers exercisable under sections 9 (4) and 11 (2) of the 2019 Act are not exercisable when legislative and executive powers are being exercised in accordance with the 1998 Act by the Northern Ireland Assembly and its Executive Committee and the 2021 Regulations are therefore ultra vires.

3. The 2021 Regulations are ultra vires by reason of section 9(9) of the 2019 Act insofar as that provision permits provisions in regulations only that the Assembly could enact. The Assembly cannot enact matters that deal with excepted matters but the 2021 Regulations deal with the subject matter of the Pledge of Office which is an excepted matter. Similarly, the Assembly cannot enact matters that deal with reserved matters without the consent of the Secretary of State and the Regulations confer a function on the Secretary of State.

4. The 2021 Regulations are ultra vires as they do not make any changes to the law of Northern Ireland respecting abortion contrary to section 9 (4) of the 2019 Act.

5. Insofar as the 2021 Regulations are intended to facilitate the implementation of the first regulations made under the 2019 Act that permit abortion on the ground of disability, they are ultra vires by reason of Article 2 (1) of the Ireland/Northern Ireland Protocol of the EU Withdrawal Agreement. Article 2 (1), among other things, preserves the human rights protections that existed at the making of the Withdrawal Agreement and these include the UN Convention on the Rights of Persons with Disabilities which prohibits abortion on the ground of disability.

6. Further to the ground at (5) above, insofar as the 2021 Regulations facilitate the implementation of the first regulations made under the 2019 Act that permit abortion on the grounds of disability, they are ultra vires as incompatible with a general principle of EU law (the prohibition of discrimination) contrary to Article 2 (1) of the Ireland/Northern Ireland Protocol.

7. When the Abortion (Northern Ireland) Regulations 2020 Regulations were made EU law (in the form of the United Nations Convention on the Rights of Persons with Disability) and the general principles of EU law prevented the provision of abortion on the ground of disability.

The Northern Ireland Office has already said that it intends to contest the application. The case is expected to be heard later in the year.