29th June 2022

At Prime Minister’s questions today, the Lord Chancellor – deputising for the Prime Minister – was asked if the right to an abortion should be placed in the “Bill of Rights” currently before parliament.

He responded:

“…the position on abortion is settled in UK law and it is decided by hon. Members across the House.  It is an issue of conscience, and I do not think there is a strong case for change.  With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.”

Is he right?

*

In respect of abortions, the Labour MP Stella Creasy recently tweeted:

And, after the Lord Chancellor’s comments today, she tweeted the following:

Does she have a point?

*

I happen to be strongly in favour of a woman’s right to choose to have an abortion – but the question here is not about the ultimate rights and wrongs of the abortion issue.

It is about whether the “Bill of Rights” should be put to this use.

From the Lord Chancellor’s perspective, the abortion issue is “settled” – at least in England and Wales – and here he presumably means the Abortion Act 1967.

And to the extent that abortion was legalised in England and Wales by an Act of Parliament, rather than by a (contentious) Supreme Court decision as it was in the United States, the Lord Chancellor has a little bit of a point about it having been determined by parliament, and not by the courts.

But it is not much of a point.

In part, the issue is not politically “settled” – and as recently as 2008 MPs were substantially divided as to the term limits for abortions.

And as Creasy avers, the position in Northern Ireland was not legally changed until very recently (with her astute and deft amendment to the Northern Ireland (Executive Formation etc) Act 2019):

And so, thanks to that amendment, there are now the Abortion (Northern Ireland) Regulations 2020.

Of course, making access to abortions legal is not the same as providing practical access to abortions, as many on Twitter pointed out in response to Creasy’s first tweet.

And some may say there is not much point providing legal access in Northern Ireland but not practical access:

*

The “Bill of Rights” issue is not whether the substantive law on abortion should be changed – the substantive legal position has been changed.

The issue is whether a general right to an abortion should be placed in the “Bill of Rights”.

Here the position is less straightforward

On one hand, this blog has repeatedly warned of the folly of “enshrining” things in law.

This is because nothing can be meaningfully “enshrined” in law – as amendment or repeal is only a parliamentary exercise away.

And the “Bill of Rights” already has provisions that are legally meaningless – there is, for example, a proposed right to a trial by jury which goes no further than saying that if you already have a right to a trial by jury then you have a right to a trial by jury.

But.

If we are going to have a “Bill of Rights” then there is an argument that it should, well, contain some rights – and perhaps rights which have not been articulated plainly in other statutes.

And the Lord Chancellor’s objection that including such a right in the “Bill of Rights” would mean “the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House” makes no sense.

A statement of a general right in the “Bill of Rights” would not, by itself, lead to any more litigation than there would be already under the current legislation.

The United Kingdom would not suddenly become the United States just by adding this right to the “Bill of Rights”.

Indeed, providing the right in primary legislation is pretty much the opposite of what has happened in the United States.

The real reason, one suspects, for the opposition of the Lord Chancellor and other government ministers, is that the “Bill of Rights” is not for this sort of rights.

The right to an abortion is the wrong sort of right for what they are seeking to do with the “Bill of Rights”.

It is not intended that the legislation will actually confer new rights – despite its portentous title.

The intention is that the legislation will make it more difficult for people to practically rely on their rights.

So, although one can doubt the efficacy of “enshrining” things in domestic law, Creasy’s proposed amendment perhaps serves a helpful purpose in exposing the “Bill of Rights” as not being about rights at all.

And if such a right is included in the “Bill of Rights” then it may lead to the issue being more “settled” than the 2008 debates and the Northern Ireland experience indicates it to be.

If we are to have a “Bill of Rights” then this is presumably the sort of right – highly relevant to actual people – that should be included.

But what do you think?

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.