Reducing Homelessness or Re‐ordering the Deckchairs?
| Published date | 01 January 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12390 |
| Date | 01 January 2019 |
| Author | Dave Cowan |
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LEGISLATION
UK Abortion Law: Reform Proposals, Private
Members’ Bills, Devolution and the Role of the Courts
Robert Brett Taylor and Adelyn L.M. Wilson∗
UK abortion law remains unsettled, and subject to on-going controversyand reform. This ar ticle
offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines
reforms proposed in both Houses of Parliament and contextualises them within a public law
analysis, showing both that the complex parliamentary processes relating to Private Members’
Bills have frustrated reform attempts, and that these attempts have been contradictory in their
aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland,
Scotland and Wales to show the extent to which devolutionary settlements have influenced
both reforms and executive involvement. Finally, it examines the potential impact of the courts
on abortion law following Re Northern Ireland Human Rights Commission’s Application for Judicial
Review, showing that the Supreme Court’s reframing of the debate in human rights terms is
likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.
The fiftieth anniversaries of the enactment and subsequent commencement
of the Abortion Act 1967 fell in October 2017 and April 2018 respectively.
This Act allows abortions to be conducted legally in England, Wales and
Scotland in certain circumstances. These anniversaries have not been marked
with complacency. Rather, the current and previous parliamentary sessions
have witnessed several attempts to reform law and practice in this area in all
three of the constituent nations affected by the Act. These reforms have been
proposed both by primary legislation and through executive action; one of the
latter reforms is now subject to an on-going judicial review action. Meanwhile
two judgements have been handed down by the Supreme Court within the last
year in light of the comparative restrictiveness of the law in Northern Ireland.
Calls have been made in Westminster to liberalise the law in Northern Ireland,
following both these cases and the result of the referendum in the Republic of
Ireland held in May 2018 which enabled the Irish Parliament to legislate on
that nation’s similarly restrictive abortion laws.
The recent reforms and current proposals have received little acknowledge-
ment within the legal community, yet they are of considerable importance.
Cumulatively the decisions of all three branches of the state – executive, leg-
islature and judiciary – will make considerable changes to the availability of
abortion in the four constituent nations of the UK. The proposals also reflect
some of the most prominent debates on abortion: medical paternalism versus
patient autonomy, self-administration of misoprostol in a non-clinical setting,
∗University of Aberdeen School of Law. Article up to date at point of acceptance in June 2018, with
recognition of subsequent events where practicable. The authors thank Roderick Paisley, Heather
Green and Isla Callander for reading an earlier draft of this article.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(1) MLR 71–128
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
UK Abortion Law
the number of weeks of gestation during which abortion remains appropriate,
and protection of foetal rights. Therefore, whatever the outcome of these par-
ticular proposals for reform, it is likely that the three branches of the UK state
will witness further debate on these issues in due course.
The changes also have importance for UK public law in several respects, only
some of which can be examined within the scope of this article. First, the law
of abortion has traditionally been one on which the Westminster government
has avoided legislating. Substantive reform has instead previously been achieved
or proposed by backbenchers through the Private Members’ Bills procedure,1
or as amendments to an existing Government Bill which were inspired at least
in part by a Private Members’ Bill.2The recent proposals for reform highlight
the inadequacies of these processes, which in turn raises questions about the
democratic processes within Westminster.3Further democratic and constitu-
tional difficulties arise in that backbenchers in both Houses of Parliament are
seeking to reform the law in contrary ways. A liberalising agenda has found
favour in the House of Commons in both the current and previous session: one
Bill with this intended effect was introduced in the previous Parliament but did
not progress into law, and another has been introduced in the current session.
However, a less liberal agenda has found favour in the House of Lords, where
two Bills have been introduced in this current session which would restrict
abortion services in England and Wales.4
Secondly, the current reforms highlight uncertainties, inconsistencies and
tensions in the devolutionary settlements of Northern Ireland, Scotland and
Wales. The differences in the devolutionary settlements with respect to the
law of abortion lack comparative study but are considerable. This could have
a significant impact on the legal powers and political options available to the
UK’s four legislatures in the months to come. The most recent decision of
the UK Supreme Court on the law of abortion in Northern Ireland, however,
suggests that these differences may soon be subject to a judicially-imposed
minimum standard to ensure compliance with the European Convention on
Human Rights.5This may force greater uniformity in the law of abortion
across the UK in the near future.
This article will review for the first time the recent legislative proposals and
executiveactions, highlighting the reforms to UK abortion law that they intend
to make. It will examine critically the rationale behind these reforms – both
declared explicitly and inferable – as well as their potential impact and
of the Legal Regulation of Abortion in England from 1803 to 1982 (Cambridge: CUP, 1988) ch 6;
D. Paintin,Abortion Law Reform in Britain 1964-2003: A Personal Account (Stratford-upon-Avon:
British Pregnancy Advisory Service, 2015) chs 7-8.
2 The Human Fertilisation and Embryology Act 1990, on which see further below.
3 See also, similar complaints on previous reform attempts, S. Sheldon, ‘The Decriminalisation
of Abortion: An Argument for Modernisation’ (2016) 36 Oxford Journal of Legal Studies 334,
364-365.
4 It is not the first time that leg islation on abortion has been introduced to the two different
Houses within the same session, see, for example, in 2014-15 when the Abortion Act 1967
(Amendment) Bill [HL] 2014-15 was introduced in the House of Lords while the Abortion
(Sex-Selection) Bill 2014-15 was introduced to the House of Commons.
5Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27.
72 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(1) MLR 71–128
Robert Brett Taylor and Adelyn L.M. Wilson
connection to wider constitutional change. This article, therefore, intends to
contribute to the on-going discussions surrounding reform to abortion law,
whilst providing readers with a greater understanding of the background con-
text to this debate as it progresses.
First, it will set out the current legislative framework on the law of abortion
in England, Scotland and Wales, which is found in the Abortion Act 1967
as amended. This Act provides a shared context for the recent reforms and
proposals in these three constituent nations and also for much of the discussion
with respect to Northern Ireland.
Secondly, this article will examine the most recent attempts by backbenchers
in both the House of Commons and the House of Lords to reform the Abortion
Act. Four separate Private Members’ Bills have been introduced within the
last two years. This article will: identify the rationale behind the Bills where
possible; analyse the evidence provided in their support; examine the changes
to the law proposed and the mechanisms by which this would be achieved; and
comment on their possible impact if implemented into law. These particular
Bills cannot now pass into law, for reasons explained below, but their sponsors
are likely to introduce like legislation in future parliamentary sessions. It is
therefore necessary to consider the intent behind the current Bills carefully.
To complement that analysis, this article will also explain the parliamentary
procedure for Private Members’ Bills in the two Houses. This aspect of public
law has been subject to little examination in the academic literature, and the
leading works (such as Erskine May) are out-dated given recent changes in
procedure in both Houses.6This is a problematic lacuna generally but presents
a particular challenge to the study of the law of abortion because this area
has been advanced largely by Private Members’ Bills. Therefore, in providing
this procedural context, this article addresses an important lack in the current
academic literature on the UK’s public law as well as necessary context for
understanding the recent reforms in the law of abortion.
Thirdly, this article will examine the devolution of the law of abortion to
the other three constituent nations: Northern Ireland, Scotland and Wales.
It will highlight the inconsistencies in approach to this area of law between
these devolutionary settlements. It will examine the current discussions in
Westminster on legislating for Northern Ireland, commenting on both the
legality of such a possibility, as well as the impact of doing so for the wider
legislative reform packages scheduled for this parliamentary session. It will also
examine the Scottish and Welsh governments’ recent uses of delegated powers
in this area of law.
Finally, this article will look briefly at the recent decision of the UK Supreme
Court on the compatibility of abortion law in Northern Ireland with the
6 The most notable change in the House of Commons since the last edition of Erskine May has
been the introduction of additional legislative stages for English Votes for English Laws, on which
procedural changes see HC 410 (2015) and HC 189 (2016). The House of Lords meanwhile
have since introduceda ballot system for Pr ivateMember s’ Bills (on which, see below)and three
successive revised versions of the Companion to the Standing Orders and Guide to the Proceedings of
the House of Lords (2010, 2013, 2017).
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(1) MLR 71–128 73
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