Any direction from Northern Ireland Secretary Brandon Lewis to Stormont to commission abortion services would be a “fundamental intrusion” into devolution, the High Court in Belfast has been told.
The claim was made on the final day of a judicial review brought by the Northern Ireland Human Rights Commission against the Secretary of State, as well as the Northern Ireland Executive and the region’s Department of Health over delays in abortion law implementation.
Abortion laws in Northern Ireland were liberalised in 2019 following legislation passed by Westminster at a time when the power-sharing government in the region had collapsed.
However, while individual health trusts have been offering services on an ad-hoc basis, the Department of Health has yet to centrally commission the services.
In March, Mr Lewis took powers that would allow him to direct Stormont to set up services, but he has not done so yet.
The Northern Ireland Human Rights Commission has asked the judge, Mr Justice Colton, to order the Secretary of State to intervene to set out a strict timetable for the commission of services.
But in court on Friday, the legal representative of the Northern Ireland Executive, Tony McGleenan QC, warned against the constitutional implications of such a step.
He said: “The Secretary of State is not empowered to direct the Executive, that would represent a very significant intrusion into the fundamentals of devolution.
“If a direction is made, once that step is taken, it will be the first time it has ever been done and it will cut across the fundamentals of devolution.”
Mr Justice Colton asked: “One hopes we never come to that, but what is the Secretary of State to do if the Executive committee just turns its face to the law?”
Mr McGleenan responded: “The Secretary of State must also be faithful to the rule of law.
“If that is the position adopted by the Executive committee, whose members are elected by the population, is quite a significant step constitutionally for him to do what the Human Rights Commission say he should, to direct those members.
“Whatever options are available to the Secretary of State, it is striking that parliament didn’t give him that option.”
Representative for the Northern Ireland Human Rights Commission David Blundell QC concluded by arguing there had been no progress made at all in commissioning abortion services.
He said: “We are now 15 months on from the change in the law with not even a single paper dealing with full abortion services put to the Executive committee.
“All we have is a commitment (from the Secretary of State) to achieve direction if there is no sign of concrete progress by July 22.
“We don’t have what the direction will say, we don’t know whether it will set any time limits or objectives and we don’t ultimately even have any certainty that it will even be issued.
“The true position here is that there has been no real progress at all.”
Mr Justice Colton will deliver his ruling at a later date.