The curious case of the Department of Health

Abortion has been legal in Northern Ireland for over a year now. Under the Abortion (Northern Ireland) Regulations 2020, terminations up to 12 weeks are now lawful. Abortions after 12 weeks are heavily restricted. Terminations are available up to 24 weeks if there is a risk to the mental or physical health of the woman. There is no time limit where there is a fatal fetal abnormality.

With the law firmly in place, it was expected that the commissioning of abortion services would be next. All eyes are on the Department of Health.

As it stands, early terminations are now available at certain clinics up to 10 weeks. To access abortions between 10-12 weeks and after, travel to England is still required. Abortion access isn’t currently available via GPs. It’s unlikely that hospitals will allow terminations between 10-12 weeks and after without further guidance. This will remain the case until abortion services are introduced. The matter should be straight forward. Or so you would think.

In a statement provided to journalist Amanda Ferguson on Friday 26th, the Department of Health stated:

The regulations do not require the Department to commission abortion services, and doing so would be subject to the agreement of the Executive.’

The Minister for Health regards abortion law and policy as a cross-cutting and controversial issue, which means referral to the Executive is required. There are clearly different views within the Executive on this question.’

Further:

‘The Department has publicly stated that it has received legal advice that, under the new regulations, registered medical professionals in Northern Ireland may now terminate pregnancies lawfully. The regulations require such terminations to be carried out on Health and Social Care premises. This advice was communicated to Trusts in April.

Decisions remain to be taken on the commissioning of abortion services in NI’s health service. Commissioning is a significant process that will require a public consultation. It will clearly be matter for the Executive and Assembly as well as the Department.”

In other words: yes, abortion is legal in Northern Ireland. Bold of you to assume you can have one.

Let’s unpack:

The Abortion (Northern Ireland) Regulations 2020 do not explicitly say that the Department must commission abortion services. That Department of Health must do this is, arguably, the logical conclusion of the legislation. Abortion is now legal in Northern Ireland. Health is devolved. Who else would be responsible for implementing access to abortion?

Indeed, in its response to the public consultation on the framework for abortion services the Northern Ireland Office stated:

The Department of Health in Northern Ireland will oversee the framework’s delivery model and the operational readiness of services. The Government will continue to work closely with the relevant Northern Ireland departments to ensure that the legal provisions can also be accompanied by models of care, training, professional guidance and professional standards of practice to assist medical professionals.’

What do the regulations say?

S,8 of the regulations state that:

Any treatment for the termination of pregnancy must be carried out—

(a)in an HSC hospital;

(b)at a clinic provided by an HSC trust for the purpose of carrying out terminations (whether or not the clinic also provides other services);

(c)at premises used to provide primary medical services in accordance with arrangements under the Health and Personal Social Services (Northern Ireland) Order 1972(1);

(d)in the case of the second stage of treatment for termination where the conditions mentioned in paragraph (2) are satisfied, in the home of the pregnant woman; or

(e)at a place approved under paragraph (3).

Section 8 then later states:

The Department may, for the purposes of these Regulations, approve a place for the carrying out of terminations.

 (5) An approval under this regulation—

(a)must be given in writing;

(b)must be published by the Department in such manner as it thinks appropriate.’

S, 9 and s, 10 of the Regulations further mention the Department having a role in providing forms for medical certification and notifications being sent to the Chief Medical Officer. Again, the legislation states that the Department ‘may’ act.

Minister Swann believes that he has a duty to refer the matter to the Executive Office under section 2.4 of the Ministerial Code. The code states that a Minister has a duty to bring a matter to the attention of the Executive if it is, ‘significant or controversial and which has been determined by the First and deputy First Minister acting jointly to be a matter that should be considered by the Executive Committee.’

Nerds will remember that section 2.4 of the Ministerial Code was important in the Buick case involving a £240 million incinerator in Mallusk. The court hearings were concerned with ministerial power, the absence of the Assembly and civil servants.

The Ministerial Code does not apply to Departments. Abortion services are arguably controversial and significant. Unlike Buick, however, this isn’t about planning permission but the provision of healthcare. The law is already in place. The law allows abortions up to 12 weeks and beyond in certain circumstances. All that’s required is implementation.

If the Executive does not approve the Department of Health commissioning abortion services, what then? Are we to have a situation where the law says a woman can have a termination in Northern Ireland but she’ll still have to fly to England to have one?

The position that there should be a public consultation on the commissioning of abortion services will also raise eyebrows. Other than a hospital or somewhere like Marie Stopes, where does the Department expect abortions to be carried out, in a Starbucks?

Everything about this screams legal case.We’re about to have some interesting conversations about ministerial power, the civil service and the letter of law.  A lot depends on what the Department will do next but may see the matter come before the courts again. Until then, women and people in Northern Ireland will continue to have to travel to England to access what they should legally be able to obtain at home.