Secretary of State can force Stormont to act to implement abortion legislation due to parliamentary supremacy, the High Court said.
Peter Coll QC, acting for Brandon Lewis, said that although his client recognizes the sensitivities of this decision, the “fundamental constitutional reality is that Parliament retains its supremacy and can legislate in the devolved sphere”.
The response came amid a legal challenge by the Secretary of State intervening amid a deadlock within Stormont’s executive over the central order of comprehensive abortion services in Northern Ireland.
The region’s once strict abortion laws were liberalized in 2019 following legislation passed by Westminster at a time when decentralization had collapsed.
Stormont’s health ministry has yet to centrally order full services due to a deadlock within the decentralized administration.
This led the UK government to introduce new powers to allow Mr Lewis to formally order Stormont to begin services.
He used the powers to order ministers in Belfast to take the necessary steps to roll out abortion services across the region, with a deadline of end-March 2022, as well as to order “immediate support” for the services. provisional early medical abortion in Northern Ireland.
The Society for the Protection of Unborn Children (SPUC) is calling for a judicial review of regulations introduced earlier this year.
They argue that Mr Lewis overstepped his legal authority when he granted himself an unprecedented level of control over abortion policy in Northern Ireland, and that powers cannot be exercised while the Assembly and the Stormont Executive operate.
Acting on behalf of the SPUC, former Northern Ireland Attorney General John Larkin QC told the High Court on Monday that there was “no obligation for anyone to comply with the instructions.”
He said executive ministers could treat regulations “like junk paper”, adding that a minister of the crown “cannot rule people” if a law does not give them the power to do so. .
As the hearing continued on Tuesday, Judge Colton said he was not aware of any such instructions before.
Mr Coll said the instructions came amid a “very unusual state of affairs” in which Parliament has moved in some respects to directly amend the abortion law and has also instructed the Secretary of State to put implement paragraphs 85 and 86 of CEDAW (Committee on the Report on the Elimination of Discrimination against Women).
Mr. Coll said that when the Secretary of State gives instructions, “action in this direction must be taken.”
“The fact that the regulations do not create a specific enforcement mechanism is totally irrelevant,” he said.
“It can clearly be seen that Parliament was aware and agreed to give the Secretary of State the power to order not only that action be taken, but that it must be taken.”
Mr. Coll described the Secretary of State as having “a very broad and extensive power to make any changes to the law that he deems necessary or appropriate”.
But he stressed that the regulations were not “a mere whim of the Secretary of State”.
“It is not something the Secretary of State has just risen from daylight and decided to do, he is fulfilling his obligations under section nine … and the regulations themselves are then submitted. positive action by both houses of Parliament, ”he said.
“Parliament accepted it… the regulation is a statutory instrument in its own right.
“Parliament has legally recognized the Secretary of State’s directives that require people to take action in accordance with the directives.
“It is not to be characterized, as my eminent friend characterizes it, as the acting Secretary of State …
The hearing continues.