Women in Northern Ireland who seek exemption from the government’s new two-child benefits limit on grounds of rape could face prosecution, along with social workers and medical staff, prosecutors have confirmed.

Changes to child tax credits and universal credit place a limit on claims to a maximum of two children, with a handful of exceptions. One of the exemptions is where a woman can show an additional child was conceived through non-consensual sex.

This exemption, known by opponents as the rape clause, has prompted huge controversy, but has a particular repercussion in Northern Ireland where it is an offence to not report a crime to the police. The offence carries a maximum penalty of two years in prison.

The issue was first highlighted in July, prompting Owen Smith, the shadow Northern Ireland secretary, to write to Barra McGrory, Northern Ireland’s director of public prosecutions, to seek advice on whether the law might apply if someone claimed the exemption, having not previously reported the rape to police.

McGrory replied that it was “a potential offence to withhold information regarding an act of rape” and that this could apply for the woman concerned and to those helping with the application, for example social workers and health professionals.

“The legislation does not distinguish between a victim and third parties to whom a disclosure is made; each is potentially liable to prosecution,” McGrory said. “This is not to say, however, that a prosecution would necessarily follow in respect of either a claimant making a disclosure for the first time or a third party becoming aware of such information.”

While the decision on prosecution would depend on circumstances, McGrory added no had been action taken to date against someone for not reporting a rape.

Smith said the letter confirmed his worst fears about the risk of prosecution. “Northern Ireland is already set to be the hardest hit nation of the UK under this policy because of the number of large families and it is unforgivable of the government to criminalise women and impoverish their children.”

During an update to the Commons on Thursday by the Northern Ireland secretary, James Brokenshire, Smith cited a study from the Institute for Fiscal Studies saying the two-child limit, and the rollout of universal credit, would affect families in Northern Ireland more than anywhere else in the UK.



Responding, Brokenshire said the government was “looking very carefully” at how it was implemented in Northern Ireland. “Universal credit is about making work pay. It is about how we get people back into work, seeing those pathways, and seeing that things are supported.”

The two-child limit was introduced this April in England, Scotland and Wales as well as Northern Ireland. Labour has argued that it would be wrong for ministers to introduce the policy in Northern Ireland while the deadlock in the suspended assembly remains.

While welfare policy in Northern Ireland is set in Westminster under the 2015 Fresh Start agreement, Smith has argued that the power-sharing executive has the ability to mitigate the impact of policies and did so in the case of the bedroom tax.