Abortion and Same Sex Marriage Law Receives Royal Assent
Abortion and Same Sex Marriage Law Receives Royal Assent
The Northern Ireland Human Rights Commission has welcomed the NI (Executive Formation) Bill receiving Royal Assent at Parliament today. If the Northern Ireland Assembly does not return by 21 October 2019, the Bill will require the Secretary of State for NI to introduce regulations to provide for Termination of Pregnancy, in certain circumstances, and Same Sex Marriage in Northern Ireland.
NI Human Rights Chief Commissioner Les Allamby:
“We are delighted at the passing of landmark legislation to enable same sex marriage and ensure Northern Ireland’s laws on termination of pregnancy meets domestic and international human rights standards. We are encouraged by today’s developments and now await the parliamentary process to run its course, subject to the devolved institutions returning by October 2019, and for the law to change in Northern Ireland without delay.
“The United Nations Committee on the Elimination of Discrimination against Women held there were systemic and grave violations of human rights as a result of the current law on termination of pregnancy in Northern Ireland. This implementation of its recommendations in this legislation should end such violations. The Commission also welcomes the proposed moratorium on criminal investigations and prosecutions in line with the United Nations Committees recommendations. This will be a matter for the Police Service of Northern Ireland and the Public Prosecution Service to implement and we will be following this closely.
“We will continue to work with government and the relevant public authorities to ensure the new laws are implemented in as effective and timely way as possible.”
Notes to Editors
What the Bill will mean in practice:
The NI (Executive Formation) Bill.
The Bill received Royal Assent from the UK Parliament on 24 July 2019. During the passage of the Bill a series of amendments were tabled to the Bill, including relating to the reform of the law governing termination of pregnancy, provision for same-sex marriage and opposite-sex civil partnerships, and a pension for those injured as a result of the conflict. Members of Parliament voted to back amendments, which require the government to change termination of pregnancy laws and extend same-sex marriage to Northern Ireland if an Executive is not formed by 21 October 2019. View further details on the Bill here.
A moratorium is proposed on criminal investigations and prosecutions under ss.58-59 of the Offences against the Person Act 1861, in line with the CEDAW recommendations. This will be a matter for the Police Service of Northern Ireland and the Public Prosecution Service to implement.
Further scrutiny: affirmative procedure
Any regulations made by the Secretary of State to make changes to the law of Northern Ireland in order to give effect to the recommendations of the CEDAW report are subject to the affirmative resolution procedure. This requires that they must be approved by Parliament within 28 days of being made. This provides an additional level of legislative scrutiny.
Human Rights Commission’s position on termination of pregnancy
The Commission has continuously recommended that Government introduce legislation to end the criminalisation of women and girls in NI if they seek a termination of pregnancy and to end criminalisation of the healthcare professionals who perform terminations. In line with international human rights standards, it recommends that the Government ensure that women and girls have access to termination of pregnancy in at least circumstances of a threat to physical or mental health, serious foetal abnormality, rape or incest. In addition, women and girls should have access to appropriate aftercare services.
In February 2018, the Committee on the Elimination of Discrimination against Women (CEDAW) produced a report highlighting that thousands of women and girls in Northern Ireland are subjected to grave and systematic violations of rights through being compelled to either travel outside Northern Ireland to procure a legal abortion or to carry their pregnancy to term. The full report may be found here.
In its report the Committee recommended that the State party (UK)
85. The Committee recommends that the State party urgently:
(a) Repeal sections 58 and 59 of the Offences against the Person Act, 1861, so that no criminal charges can be brought against women and girls who undergo abortion or against qualified health-care professionals and all others who provide and assist in the abortion;
(b) Adopt legislation to provide for expanded grounds to legalize abortion at least in the following cases:
(i) Threat to the pregnant woman’s physical or mental health, without conditionality of “long-term or permanent” effects;
(ii) Rape and incest;
(iii) Severe fetal impairment, including fatal fetal abnormality, without perpetuating stereotypes towards persons with disabilities and ensuring appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term;
(c) Introduce, as an interim measure, a moratorium on the application of criminal laws concerning abortion and cease all related arrests, investigations and criminal prosecutions, including of women seeking post-abortion care and health-care professionals;
(d) Adopt evidence-based protocols for health-care professionals on providing legal abortions particularly on the grounds of physical and mental health and ensure continuous training on the protocols;
(e) Establish a mechanism to advance women’s rights, including through monitoring authorities’ compliance with international standards concerning access to sexual and reproductive health, including access to safe abortions, and ensure enhanced coordination between the mechanism with the Department of Health, Social Services and Public Safety and the Northern Ireland Human Rights Commission;
(f) Strengthen existing data-collection systems and data sharing between the Department and the police to address the phenomenon of self-induced abortion
86. The Committee recommends that the State party:
(a) Provide non-biased, scientifically sound and rights-based counselling and information on sexual and reproductive health services, including on all methods of contraception and access to abortion;
(b) Ensure accessibility and affordability of sexual and reproductive health services and products, including on safe and modern contraception, including oral and emergency, long term or permanent and adopt a protocol to facilitate access at pharmacies, clinics and hospitals;
(c) Provide women with access to high quality abortion and post-abortion care in all public health facilities, and adopt guidance on doctor-patient confidentiality in this area;
(d) Make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights a compulsory curriculum component for adolescents, covering early pregnancy prevention and access to abortion, and monitor its implementation;
(e) Intensify awareness-raising campaigns on sexual and reproductive health rights and services, including on access to modern contraception;
(f) Adopt a strategy to combat gender-based stereotypes regarding women’s primary role as mothers; and
(g) Protect women from harassment by anti-abortion protestors by investigating complaints, prosecuting and punishing perpetrators.
The Northern Ireland Act and the Secretary of States lnternational Obligations.
26 - International obligations.
(1)If the Secretary of State considers that any action proposed to be taken by a Minister or Northern Ireland department would be incompatible with any international obligations, with the interests of defence or national security or with the protection of public safety or public order, he may by order direct that the proposed action shall not be taken.
(2)If the Secretary of State considers that any action capable of being taken by a Minister or Northern Ireland department is required for the purpose of giving effect to any international obligations, of safeguarding the interests of defence or national security or of protecting public safety or public order, he may by order direct that the action shall be taken.
(3)In subsections (1) and (2), “action” includes making, confirming or approving subordinate legislation and, in subsection (2), includes introducing a Bill in the Assembly.
(4)If any subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department contains a provision which the Secretary of State considers—
(a)would be incompatible with any international obligations, with the interests of defence or national security or with the protection of public safety or public order; or
(b)would have an adverse effect on the operation of the single market in goods and services within the United Kingdom, the Secretary of State may by order revoke the legislation.
(5)An order under this section shall recite the reasons for making the order and may make provision having retrospective effect.
What is the current law in Northern Ireland on Termination of Pregnancy?
Termination of pregnancy is only available in Northern Ireland if it is necessary to preserve the life of a woman; including where there is a risk of a serious and adverse effect on her physical or mental health, which is either long term or permanent. The punishment is life imprisonment for anyone who unlawfully procures or performs a termination.
NIHRC UK Supreme Court Case
In June 2018, the UK Supreme Court delivered its judgment in the Northern Ireland Human Rights Commission’s challenge to Termination of Pregnancy laws. The Court concluded the current law in Northern Ireland breaches human rights, in particular women and girls’ right to private and family life under Article 8 of the European Convention of Human Rights, in cases of fatal foetal abnormality, rape and incest.
The Supreme Court also concluded that the Commission could not bring proceedings in its own name in this case without a victim. The Commission is now seeking a legislative amendment and an appropriate Parliamentary statement to put beyond doubt the Commission’s right to take a case in its own name.
In forming its view on access to termination of pregnancy services the Commission considered the full range of internationally accepted human rights standards, including the European Convention on Human Rights, as incorporated by the Human Rights Act 1998 and the treaty obligations of the Council of Europe and the United Nations systems.Articles 3, 8 and 14 of the European Convention on Human Rights are directly engaged.
Article 3: Freedom from torture and inhuman and degrading treatment or punishment.
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 8: Right to privacy
(1) Everyone has the right for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14: Discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
NI Human Rights Commission Position on Same Sex Marriage
The Commission remains concerned that NI is the only jurisdiction of the UK retaining a statutory bar on same-sex couples from accessing civil marriage. The Commission notes that there should be appropriate legal protections for same-sex couples in a relationship but, while human rights law does not currently require this to include same-sex marriage, there is nothing to prevent a State from going beyond the minimum human rights protections. The other jurisdictions of the UK have gone beyond these standards and the Commission would welcome a similar approach in NI, so that there is an equal level of protection across the UK.