DUP’s Paul Givan wrote to AG yesterday (not in June) asking if NI Assembly had legislative competence to pass Protection of Unborn Child Act at its sitting on 21 October 2019

A DUP spokesperson rebutted the claim made in this blog post:

“This was a typing error. The date should have read 20th October rather than 20th June.”

Hopefully their bill drafting was more accurate than the letter-writing …

To get an overnight reply from the Attorney General, this is unlikely to have been the first contact with the senior legal advisor who has taken an ongoing interest over years in the issue of abortion in Northern Ireland.

And there were certainly rumours of a unionist stand against abortion reaching my ears by mid-August. Mark Devenport also picked up on the date in the latest episode of the Red Lines podcast recorded after the short Assembly sitting.

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Correspondence between the DUP and the NI Attorney General suggests that the DUP have been planning to bring a last minute Private Members Bill before the NI Assembly using Standing Order 77 for four months.

Slugger understands that the Protection of the Unborn Child Act 2019 that was discussed this afternoon in the Assembly would have simply repeated section 9 (the abortion-related aspects) of the Northern Ireland (Executive Formation etc) Act 2019 which takes effect at midnight if no Northern Ireland Executive is formed.

The new Northern Ireland legislation would have been retrospective, itself taking effect yesterday (Sunday 20 October) in order that the abortion element of the Westminster legislation could be deemed to have never come into force.

An additional aspect to the proposed Private Members Bill was to have prevented the recommencement of criminal proceedings deemed to have been discontinued as a result of the Westminster legislation as it would be “unfair” to defendants.

The draft legislation was included in a letter from Lagan Valley MLA Paul Givan to the NI Attorney General John Larkin dated 20 June 2019, asking whether the it would be “effective in its purpose of protecting the unborn child”, and “within the legislative competence of the Northern Ireland Assembly?”

This letter, written in June – even before Arlene Foster’s indication on Sunday Politics at the NI Open that the party weren’t interested in reopening the debate on same-sex marriage – asked the Attorney General to “confirm the Northern Ireland Assembly has the legislative competence to pass the proposed legislation at its sitting on Monday 21st October 2019?”

So today’s last minute recall of the Assembly to try to force a bill through in a day has been planned for four months.

The understood text of the proposed bill is included below.

The DUP have been asked for comment … maybe they put the wrong date at the top of the letter!

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Protection of the Unborn Child Act (Northern Ireland) 2019

2019 Chapter 1

An Act to repeal section 9 of the Northern Ireland (Executive Formation etc) Act 2019

BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

1. (1) Section 9 of the Northern Ireland (Executive Formation etc) Act 2019 is repealed.

1. (2) Subject to subsection (3) this Act takes effect on the day it receives Royal Assent.

1. (3) the repeal effected by subsection (1) is to be deemed for all purposes as having taken effect on October 20 2019.

1. (4) Nothing in this Act is to be regarded as maintaining any obligation or liability contained in section 58 or 59 of the Offences Against the Person Act 1861 to the extent that such obligations or liability is declared to be incompatible with any of the Convention rights by a final order, that has not been appealed, of Her Majesty’s Court of Appeal in Northern Ireland, a final order of the Court of Judicature in Northern Ireland that has not been appealed, or a final order of the United Kingdom Supreme Court.

1. (5) Nothing in this Act is to be regarded as permitting the re-commencement of criminal proceedings discontinued by reason of section 9 (3) of the Northern Ireland (Executive Formation etc) Act 2019 before this Act receives Royal Assent.

1. (6) In this Act, “the Convention Rights” has the same meaning as in the Human Rights Act 1998.

2. This Act may be cited as the Defence of the Unborn Child Act 2019.

Explanatory Memorandum on the Defence of the Unborn Child Act 2019

General

The Act makes provision for the repeal of section 9 of the Northern Ireland (Executive Formation etc) Act 2019. Section 9 of the Northern Ireland (Executive Formation etc) Act 2019 comes into force on October 22 2019 unless an Executive in Northern Ireland is formed on or before 21 October 2019; see section 13 (4) of the Northern Ireland (Executive Formation etc) Act 2019.

Section 1

Section 1 (1) [sic] provides for repeal of section 9 of the Northern Ireland (Executive Formation etc) Act 2019.

Section 1 (2) provides that subject to subsection (3) the Act will take effect on the day it receives Royal Assent.

Subsection (3) provides that for all purposes the repeal in subsection (1) is to be regarded as having taken effect on October 20. There is an element of retrospectivity in this provision and its effect is that section 9 which would otherwise have come into force from 22 October will, on Royal Assent, be seemed for all purposes not to have come into force, because it will have been treated as repealed from 20 October. This means, in particular, that on Royal Assent, sections 58 and 59 of the Offences Against the Person Act 1861 will not be regarded as having ever been repealed.

Subsection (4) ensures that the retrospective protection that sections 1 (1) and (3) of this Act extend to sections 58 and 59 of the 1861 Actdo [sic[ not give rise to any possibility of conflict with obligations arising from Convention rights, buy providing that no obligation or liability in sections 58 or 59 held by a final order of a Superior Court to be incompatible with any Convention right.

Subsection (5) ensures that there is no risk that criminal proceedings that are ended, before this Act receives Royal Assent, are revived. It could be considered unfair if a defendant were to benefit from section 9 (3) of the Northern Ireland (Executive Formation etc) Act 2019 before this Act receives Royal Assent for that to be taken away retrospectively. Subsection (5) ensure that this cannot occur: criminal proceedings that come to an end before this Act receives Royal Assent that came to an end by reason of section 9 (3) of the Northern Ireland (Executive Formation etc) Act 2019 cannot be revived.

Subsection (6) provides that the expression “the Convention Rights” shall have the same meaning as in the Human Rights Act 1998. The same interpretive technique is used in section 98 (1) of the Northern Ireland Act 1998.

Section 2 provides for the short title of the Act.