Northern Ireland should have its own laws and conventions, but it’s wrong to deprive citizens of their human rights

Not for the first time, the Supreme Court – still not quite a decade old – has acted with impressive care and independence of mind, immune to political or media bullying

Pro-choice campaigners staged demonstrations outside the Houses of Parliament on Tuesday, in protest against Stormont’s abortion laws (Getty)

Change is coming to Northern Ireland. Before the Supreme Court considered the issue of abortion in the province the women of Northern Ireland were in the untenable position in the UK of being uniquely deprived of their human rights with regard to termination of pregnancy. It is only Northern Ireland that has an especially restrictive set of rules about access to abortion. The question is whether that is compatible with human rights legislation.

The Supreme Court has now stated, by majority and putting at its simplest, that the women of Northern Ireland are indeed being treated wrongly. The situation of some pregnant women in Northern Ireland who wish for a termination (specifically who are being denied one in circumstances of rape, incest and fatal foetal abnormalities) is incompatible with two sections of the Human Rights Act 1998. That would “trump” the convenient political argument, used by the prime minister, Theresa May, and the former first minister of Northern Ireland, Arlene Foster, that such matters are devolved and reserved to the Northern Ireland assembly and executive (which is of course in abeyance and there is no sign of it resuming work soon). That position has been demolished.

Yet, in what the Supreme Court itself describes as “arid” legal reasons, the view it expressed about the substantive issue of abortion – in humane, as well as a powerfully argued set of opinions – cannot have any force because the body that brought the case initially, the Northern Ireland Human Rights Commission (NIHRC) had no “standing” to do so. In short, the NIHRC, being merely a public body rather than a person, was not (and probably never could be) an actual or potential “victim” of a violation of human rights. So the appeal made to the Supreme Court was, formally speaking, rejected.

Nonetheless, the Supreme Court took the opportunity to consider the abortion question properly and the judgment now issued (the case was heard last year) is revolutionary and means change is inevitable. Sooner rather than later a “victim” will indeed come forward with an incontrovertible body of evidence and undisputed facts that the position she is being put in under Northern Ireland’s laws violate her human rights to an abortion in certain circumstances.

This is the breakthrough that is so important – that the question of abortion is a question of human rights and not one about devolution or religion or the Democratic Unionist Party’s deal with the Conservative Party. It is about women’s rights to exercise control over their own bodies. It has always been thus, but only in recent decades has that clarity of insight lit up public debate and official decisions. It is another example – and a valuable one – of how incorporation of the Human Rights Act into British law (ie covering Northern Ireland too) has proved to be of real practical benefit to British citizens. It is not, in other words, some sort of racket being run for the benefit of the lawyers.

Plainly, the issue of abortion is sensitive and demands a balance in the way the law is framed, while it will inevitably have moral and even political considerations brought to bear upon it. But that, in turn, has to be also weighed and be compatible, with the most fundamental individual human right of all. In the words of Lady Hale, president of the Supreme Court, that is “the right of all human beings, male and female, to decide what shall be done with their own bodies”, something that, as it happens, has of course long been recognised by common law (not to mention common sense).

There is nothing wrong and everything right, in Northern Ireland having laws and conventions that are different to those prevailing in the rest of the UK. That is the entire point of devolution. If the Northern Ireland executive and assembly want to and if they happen to be in operation, they can make laws that suit the province across many areas of life, including health policy. What the Northern Ireland executive cannot do, as with the British government or any other public body, is deprive citizens of their overriding human rights.

Politically, it is much better if this is done via the Human Rights Act and the Supreme Court, rather than by the Westminster parliament or the British cabinet deciding to “impose” changes in the law on Northern Ireland. Whatever the state of public opinion on abortion (something that the Supreme Court took into account), the people of Northern Ireland might understandably resent having MPs from England, Scotland and Wales legislating for them in a way that Northern Irish MPs or the assembly cannot do reciprocally. In that sense – though this is hardly the most important aspect of the case – the Supreme Court has relieved Ms May of the burden of trying to persuade Ms Foster to do the right thing. Nor can Ms Foster reasonably expect the British parliament to amend the European Convention on Human Rights just to accommodate Northern Ireland’s wishes. In the UK, in contrast to the United States, abortion, by being made a legal rather than political matter, is still kept out of party politics, a considerable advantage to rational debate and justice.

Not for the first time, the Supreme Court – still not quite a decade old – has acted with impressive care and independence of mind, immune to political or media bullying. On some of the high-profile issues referred to it, on Brexit, on the Alfie Evans case and again now on abortion in Northern Ireland, the Supreme Court judges have proved themselves far from being “enemies of the people”, but the people’s wise and dedicated protectors.