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?
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In respect of abortions, the Labour MP Stella Creasy recently tweeted:
Currently only women in Northern Ireland have protected human right to an abortion in law. I will be tabling amendment to forthcoming UK bill of rights to guarantee this for all UK women. If you want your MP to vote for it – as will be free vote- tell them! #nowforUK
— stellacreasy (@stellacreasy) June 28, 2022
And, after the Lord Chancellor’s comments today, she tweeted the following:
When you hear MPs opposing writing a womans right to choose into the bill of rights as a human right-
a) Ask them why women in Northern Ireland have that and if they voted for that
b) Ask them if this is a 'settled matter' why there is a problem being explicit. #underHisEye— stellacreasy (@stellacreasy) June 29, 2022
Does she have a point?
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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:
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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?
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This I think is part of the larger written constitution versus non constitution debate. Whilst I accept your argument about the need for individuals to act constitutionally as of over-riding importance, the existence of a written constitution is to my mind important in setting limits to what governments can do.
Abortion rights in my opinion are one such limit.
My honest first response was “God, no – adding actual right to the bill would make repealing it much more difficult.” And wouldn’t that be a better goal wrt what to do with the so-called Bill of Rights?
Are you effectively saying that this is a Bill of the ‘right’ Rights? (‘right’ as in the mind of Dominic Raab)
I feel that Creasy is playing with fire by moving abortion into a culture war arena such ‘human rights’ (as in the discourse rather than the actual act itself).
The strength of the 1967 Abortion Act is that it is self contained. There’s no easy way to attack it unless directly. By placing it within a ‘Bill of Rights’, you open up a new and indirect front for degrading access to abortion.
I also feel this article has over-egged the threat to abortion rights. A split over term limits is pretty normal given one of the tests used is viability and the advances in medical treatment. Also 24 weeks is quite a long period when countries like Germany have a 12 week period. For this to be unsettled would require a significantly larger number of MPs arguing against the provision of abortion services itself.
It would be better to remind parliamentarians like Creasy that we are not Americans and the general public do not want our politics to be so.
There appears to me to be very little threat to abortion rights. The politics of this issue in the UK is totally different to that in the US.
This is demonstrated most obviously by the very recent Abortion (Northern Ireland) Regulations 2022.
Providing access to abortions in practice should be a matter for the devolved administration. But the UK government has taken the power to step in directly. The debate on these Regulations reveals how unusual this is constitutionally – stepping into a devolved area, setting aside the normal power sharing arrangement – but such niceties are regarded as less important than ensuring women have access to abortions.
For all the recent abortion regulations there has been a consistent and comfortable majority in favour, despite the votes not being whipped (as a matter of conscience).
More strikingly there is even a pro-choice majority in the Northern Ireland Assembly. See the defeat of the Defence of the Unborn Child Bill.
Also 12 weeks in Ireland, as I understand it.
I support the right to seek an abortion, if a person wants or needs one, but different polities are entitled to reach different decisions about it.
For all the brickbats thrown at Danny Kruger, he was expressing a truth: in the UK and most other places where abortion is available, a woman (or indeed a man with a womb) does not have an “absolute right to bodily autonomy” after a certain point in a pregnancy. In the UK, the law currently qualifies the right to an abortion at 24 weeks.
I agree with your analysis. I don’t understand what Stella Creasy is doing here, though I can see that Dominic Raab and cronies are forever playing merely for votes rather than making proper policies.
Excellent comment.
Looking purely at the politics …
If the Lord Chancellor were to accept Stella Creasy MP’s suggestion of an amendment to enshrine abortion rights in the proposed Bill of Rights …
Could we expect to see opposition MPs then voting for legislation which otherwise diminishes rights? And if they did not, the government might then (rightly) claim that Labour MPs had voted against their own amendment, and also against the right to choose.
Like David, I wholly support a woman’s right to choose. I am in favour of better abortion law than we have, without the pointless, stressful and sometimes painful requirement for doctors’ authorisations.
But much of what I’ve been reading around this on social media in recent days tells me (well, I mean, I already knew this, but strengthens my certainty) that public understanding of basic constitutional principles in the UK is desperately poor, and that the country suffers as a result.
I also, unlike David, firmly support introducing a codified constitution. In the unlikely event that I’m tasked with the writing of it, I would certainly include not just the right to an abortion for anyone who’s pregnant, but also an obligation to ensure abortion services are easy and safe to access.
But until I’m put in charge of everything, it’ll remain the case that no abortion legislation can have any more or less protection than the current Act.
And if we want to ensure that no populist government ever decides that taking away women’s rights is a useful ‘culture war’ wedge – and there is American money being spent in this country in the aim of making that happen – then we need everyone to understand how legislation and rights work in this country. We can’t protect any rights at all the widespread knowledge of where they come from and where they could be going.
Yes it should.
What does “settled law” even mean? That there is an Act of Parliament? Or a binding precedent of a superior court? A point is settled as a political matter, with no realistic prospect of it being changed? Like the UK’s membership of the EU? The death penalty? Rape within marriage?
Here is a 2021 article that identifies at least five possible meanings for the ambiguous term “settled law” (in a US context, I admit). https://scholarlycommons.law.wlu.edu/wlufac/659/
From normative formalism (objectively right) through descriptive formalism (binding precedent through stare decisis) to descriptive realism (no material chance of being overruled) and normative realism (a desirable outcome in light of its consequences) to pure legal process (a ruling that should be followed because it is a proper decision of a proper court entitled to reach that decision)
That paper – like many sitting US Supreme Court justices had in their confirmation hearings – identifies Roe v Wade as “settled law” – meaning a controlling decision that has not (yet) been overturned. Oh dear.
In the UK, the doctrine of Parliamentary sovereignty means that no rights are “settled”, as in fixed for all time. Circumstances change and we probably don’t want rights fixed for all time anyway (right to bear arms?). The House of Lords, Supreme Court, or Court of Appeal may have decided certain categories of case consistently over time creating binding precedent, and to that extent the common law or the judicial interpretation of statue law may be “settled”, but since 1966 the House of Lords has not bound itself and may depart from precedent. All judges are adept at “distinguishing” inconvenient precedents to “do justice” in a particular case. In principle Parliament can make or unmake any law.
What would a statement about a “right to abortion” in the Bill of Rights add, over and above the provisions of the Abortion Act 1967? For what it is worth, that Act provides criteria that govern the legal regime for abortion in most of the UK, and in practice women can obtain abortions if they want and need one up to 24 weeks of gestation.
That limit was amended in 1990 and reduced from 28 weeks. No change was made in 2008, and I’m not aware of much appetite to reopen that debate at the moment, but I can imagine that limit becoming a matter that is reconsidered eventually as part of the usual political process.
We should not run away from that discussion. The conclusion cannot be taken for granted, and we should continue to make and remake the case for abortion.
And here are the actual statistics from 2021:
https://www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2021/abortion-statistics-england-and-wales-2021
Around 200,000 each year. Almost 90% of abortions before 10 weeks, and 90% medical not surgical. Very few after 20 weeks (and a tiny number after 24 weeks, all for good reasons).
This is so desperately cynical that it is difficult to know where to start. Commentators before me have already touched on many key points, but I’d just like to add that this comes across as nothing more than cynical manipulation: the Conservative Party has watched the outpouring of popular outrage at the actions of SCOTUS and have calculated that if they can say or do something that looks as though they want to protect a woman’s right to choose, they may attract similar levels of empathic support from UK voters.
The danger here – as so astutely pointed out by John+L, above, is that moving the legal provisions for a right to an abortion in to a broader bill of rights just opens it up to further manipulation “down the line”.
The best legislation is orthogonal – no dependencies upon or overlaps with other pieces of legislation. No loopholes. No carve-outs or exceptions. Fair in application to all citizens, from the wealthiest to the weakest.
Once again [and I’m repeating myself, sorry] the government fail to satisfactorily explain what it is about the current legal protections for abortion in the UK that so needs this sudden amendment.
As a remarkably astute uncle of mine once observed: anyone who puts themselves forward in an election should automatically be disqualified from holding office.
I don’t doubt Creasy’s sincerity on this issue, but doing it that way looks a bit odd. If the amendment got into the bill that went before Parliament for a third reading, what would Labour (and Creasy) do then? Presumably the bill overall would remain unacceptable, so they’d vote it down with their own hard-fought amendment. If that’s right, someone opposing the amendment could surely ask them why they want to put something in a bill that they are not going to vote for anyway.
Nothing is settled as time moves on.
At the moment, abortion is framed as a women’s rights issue. Being a lover of sci-fi and legal policy I was fascinated by the discussion of the role of exo-wombs and the then consequences of roe v wade.
I’ve found two items on it that I’ve listed below. They basically say that a women’s rights are to remove the fetus, with death being a legal by-product. Exo wombs would enable growth outside the woman’s body resulting with the woman having the same rights as a father over its development.
As a sci-fi lover I could see exo-wombs being developed despite the proposed ban. You could then argue that killing people based on age was genocide and that the crown is responsible for its prevention. In fact it was the plot of a proposed book series.
However I think age is not one of the qualifiers for genocide. If anybody can clarify this please do. The duty of the state to proactively protect life could be used to say that parliament was now acting unlawfully in permitting abortion.
If abortion was included in ‘other’ statutes then they would be at risk should the legality of abortion change suddenly. The US is seeing how it can happen.
I hope this has been a positive contribution to the discussion.
I’ve found two papers on it:
University of Dayton:
2008 Built in Obsolescence: The Coming End to the Abortion Debate
Vernellia R Randall, University of Dayton
Artificial Wombs Could Outlaw Abortion:
https://web.archive.org/web/20191012213054/http://www.mattlesnake.com/2013/03/02/artificial-wombs-could-outlaw-abortion/
I do wonder if Ms Creasey’s intervention has less to do with abortion rights than drawing attention to a new set of emperor’s clothes in the form of a “bill of rights”.
Even with a written constitution where amendments can be publicly ratified, no rights are ever settled; far less so in this parliamentary system where hard won rights can be eliminated on the whim of a political party & the stroke of a pen, a bit like brexit.
It seems to me that this is a – perhaps rare – example of the case that David mentions in his rubric on comments: that the comments may be more interesting than the article itself. This is not to knock DG’s piece. On the contrary, it has done an excellent job in stimulating a number of well-informed and considered posts that advance the argument considerably.
For my part, I strongly agree with the argument that those without a womb (like me) don’t get to control the bodies of those with a womb. I do think that every abortion represents a failure somewhere – but it may be the best way of dealing with the failure. And please don’t get the courts involved: that was the big mistake in the US.
There is no role for the courts here. This is purely a legislative issue.
This Bill of Rights will be amendable and repealable like any other statute. If the right to abortion was added it could be undone, just as the Abortion Act could be repealed. The right to abortion wasn’t seen as necessary to be added to the HRA, so why to the Bill of Righrs? I think this results from confusion over the constitutional situation in the USA compared to the UK. The USA did not have a Federal law granting abortion rights, only a weak privacy argument in a Supreme Court ruling. So it was very easy for the conservative biased Supreme Court to reverse that ruling, without reference to any democratic process. That can’t happen in the UK, which woukd require Parliament to vote to repeal the Abortion Act. Adding such a right to the Bill of Rights would be a pointless duplication.
I am in favour of legalised abortion and the woman’s right to choose.
On the basis ‘if it ain’t broke, don’t fix it’ I suppose we should leave abortion out of Raab’s Foolishness.
But perhaps rolling abortion rights into RF might be a good way to salt the earth. To do so might attract attention to RF – attention Raab et al would otherwise avoid and to draw attention to the fact that RF is all about making access harder – not something likely to be popular here in the UK.
Not without risk though. There are I am told American funders of anti abortion who would be only too glad to pour money into compliant Tory party coffers – who knows, they might even succeed to a greater or lesser degree. But not a great look coming up to an election. So, a good way to stir up trouble and salt the earth for something best left alone.
Should a right to an abortion be included in the Bill of Rights Bill
My simple answer is no.
The addition of this in the Bill would make it harder to oppose what is actually an appalling and regressive bill.
No. In spite of what DAG says, making it a HR starts down the US path of law suits on every aspect of the application of that right. Abortion has been legal in the UK for over 50 years. There is no possibility of it being forbidden or severely limited. Indeed the UK is among the most generous in terms of cut off dates, which is why the subject is likely to be revisited and will no doubt be hotly debated.
The Northern Ireland (Executive Formation etc) Act 2019 could be repealed or amended. There is no “right” to an abortion, as the 1967 Act makes clear: it refers to the “offence” of abortion, and defines the circumstances when an abortion isn’t an offence. The bar is higher after 24 weeks (originally 28 weeks), which, as others have pointed out, is much more permissive than in most countries.
Also, if you’re going to use a rights-based argument, what about the rights of the unborn? These are difficult moral and legal issues which will never be permanently settled.
So, what is the case for incorporating a woman’s right to an abortion in the Bill of Rights?
1 It makes it harder for that right to be removed – I would say arguable at best.
2 It shapes the debate on the Bill of Rights and which rights are to be included – yes, that seems a fair point.
3 It is being proposed mischievously – again, that seems a fair assessment. The government would, in effect, be shooting itself in the foot with it’s own Bill of Rights.