With a screech of brakes and the roar of a U-turn, the Government has announced plans to devolve powers over abortion laws to the Scottish parliament at Holyrood.
The question of the devolution of abortion law has already been a flashpoint for political posturing and hard bargaining over the last year, after unionist leaders vowed to support further devolution during the independence referendum; this latest development offers the potential to develop into an unholy row.
It has been a complex story so far. Abortion law was initially included among the recommendations for devolution by the Smith Commission last year, having been proposed by the Green Party and agreed by the SNP, Conservatives and Liberal Democrats. It is, noted Lord Smith, “an anomolous reservation” given that Scotland already has powers over healthcare and end-of-life issues including assisted suicide.
But the issue was dramatically pulled from the Commission’s final report in the very final moments of negotiations after Labour designated abortion law a “red line issue” and refused to sign the final package until it was removed.
Now, apparently it is back on the agenda. “I do not see a convincing constitutional reason for why abortion law should not be devolved,” Scottish Secretary David Mundell told the Scottish Affairs Committee this week, adding that the Scotland Bill would be amended to reflect this decision when it reaches report stage later this year.
A debate on the subject took place in the Commons in July after three Catholic MPs tabled a similar, cross-party amendment. The three MPs – all members of the pro-life parliamentary group, and none of whom represent a constituency in Scotland – seemed to be working on the reasoning that a Holyrood parliament seeking to flex new muscles might review current abortion rules after powers were devolved, thus opening the door to stricter measures north of the border. If so, the current consensus around a 24-week time limit would be challenged, and perhaps then dismantled in piecemeal fashion in the rest of the UK.
One of the three, Liberal Democrat John Pugh, confirmed as much: “The 1967 Act [which legalised abortion] is defended as though it was holy writ and unamendable,” he told me by email. “I think the Scots, if given the right to frame their own legislation would debate the subject in a more measured, less charged way and make sensible amendments. If they were able to do this a less polarised discussion could take place in England.”
It is for the same reason that Labour so vociferously opposes the devolution – Harriet Harman was reported to have gone “ballistic” when the topic was first raised, fearing a Scottish clampdown.
There is some precedent: in Northern Ireland, which already has similar powers, abortion is illegal except under “extraordinary circumstances”. Those seeking safe and legal abortions are forced to travel to England to procure them.
However there is little evidence that Holyrood would act to bring in more draconian laws. Polling shows that there is little public appetite in Scotland to do so; while 80 per cent of Scots consider the Northern Ireland situation “unacceptable”.
Indeed, historically Scotland has taken a more liberal approach to abortion than England and Wales: even prior to the 1967 Act a Scottish physician would not be prosecuted for aborting a fetus providing it was undertaken “in good faith” and for “reputable medical reasons”. In 1965, the eminent professor of obstetrics Sir Dugald Baird reported he was already aborting around two per cent of all pregnancies in the Aberdeen area, having clarified that there was little danger of prosecution.
It was a Scottish politician too, David Steel, who introduced what would become the Abortion Act as a private members bill a year later, following extensive discussions with Sir Dugald.
Nevertheless, the outcome of any debate in Holyrood is difficult to predict. The SNP, with its comfortable majority, considers abortion to be a matter of conscience; several prominent SNP figures – Alex Salmond, for example – have previously voiced support for lower time limits.
Any such debate would cause a major headache for the party, with the potential to alienate the thousands of Catholic voters who have swollen its ranks in recent years, deserting Scottish Labour. This election, nearly half of Catholics (48 per cent) voted SNP, up from only 17.9 per cent in 2010, while senior Catholic figures including the Archbishop of Glasgow have expressed personal support.
The group is a decisive bloc in Scottish politics, making up a larger proportion of the whole (15.9 per cent, as opposed to 7.4 per cent in England and Wales) and an even larger proportion of those in favour of independence (58 per cent of Catholics voted “yes” in the 2014 referendum, while 60 per cent of Protestants voted no).
Perhaps with this in mind, First Minister Nicola Sturgeon has reacted cautiously, welcoming the announcement on the grounds that all new powers are welcome, but in the same breath announcing that there are no plans to change current laws. It is a savvy move, one that she must hope will take the heat out of the issue, avoiding confrontation with her Catholic supporters and reassuring women’s groups and the Church of Scotland, both of which have warned of the ‘cross border trade’ in abortions which would result in differing laws in the two lands.
It is a softly softly approach, not unlike the manner in which it currently treats its powers of taxation – Holyrood has, but so far neglected to use, the ability to vary the tax rate by up to three pence. She must carefully walk the line that Scotland deserves the power to debate and decide its own laws with regard to abortion, but that it will choose not to, at least for now.
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