Below is a short briefing on the need for public consultation duties under Section 75 versus the necessary implementation of the relevant paragraphs of CEDAW.
SECTION 75 BRIEFING NOTE
1. The House of Commons has voted, by a majority of 332 to 99, to require the Secretary of State for Northern Ireland to introduce regulations to implement the recommendations of the United Nations Committee on the Elimination of all Forms of Discrimination Against Women (“CEDAW”) in respect of abortion access in Northern Ireland.
2. Those recommendations include the repeal of ss.58-9 Offences against the Person Act 1861 and the provision of abortion “at least” in cases of a threat to a pregnant woman’s physical or mental health without conditionality of “long-term or permanent” effects, of rape and incest, and of serious foetal abnormality. These recommendations followed from CEDAW’s conclusion that the United Kingdom is responsible for “grave” and “systematic” violations of women’s rights in Northern Ireland. This was a finding that the United Kingdom was in breach of international legal obligations.
3. The CEDAW report was the result of extensive community consultation in Northern Ireland. CEDAW representatives met with the Northern Ireland Minister for Communities, Minister of Justice, the Attorney General for Northern Ireland, officials from the Department of Health, the Northern Ireland Human Rights Commission, the Equalities Commission, and the Commissioner for Children and Young People. They interviewed members of the Northern Ireland Assembly, civil society representatives, academics, trade unions, and representatives of central government. There have also already been other community consultations on abortion law reform in Northern Ireland.
4. There is no obligation in law to further consult about the implementation of these recommendations. The draft clauses in respect of the implementation of CEDAW is silent in respect of consultation and there is no suggestion that any duty to consult arises by reason of a procedural legitimate expectation.
5. Nor is there any obligation to consult under s.75 Northern Ireland Act 1998:
a. The duty under s.75 is a duty to have due regard to the need to promote equality of opportunity. It does not specify any particular means of having due regard and does not suggest in terms that consultation is required;
b. The Northern Ireland Office Equality Scheme suggests that the Northern Ireland Office “will consult” on some s.75 matters (§3.1). The consultation period “normally lasts for a minimum of twelve weeks”. However, “in exceptional circumstances when this timescale is not feasible (for example when dealing with emergency measures, or international, legally-binding deadlines, or when the consultation needs to fit into fixed timetables such as the electoral cycle), we may shorten timescales to eight weeks or less” (§3.8). Where the Northern Ireland Office “must implement a policy immediately … we may consult after the implementation of the policy” (§3.9).
6. In summary therefore:
a. The CEDAW recommendations reflect international obligations. There is an ongoing, “grave” and “systematic” violation of women’s rights in Northern Ireland. This needs to be brought to an end immediately. There is a clear need for expedition;
b. There is no duty to consult on implementing the CEDAW recommendations, whether at common law, under s.75, or pursuant to the Northern Ireland Office Equality Scheme;
c. Insofar as some consultation is considered necessary, this can take place after the new regulations are in place (Equality Scheme, §3.9) and ought to be limited to narrow points of how to implement the CEDAW recommendations, as opposed to whether to implement the recommendations.
 Department of Justice Consultation on Abortion (2014); Working Group on Fatal Foetal Abnormality (April 2018).