Human Rights Commission welcomes Sarah Ewart Judgment
The Human Rights Commission has welcomed the decision of the Court today in the Sarah Ewart case which found that her human rights have been breached by the current law on abortion. Today the High Court in Belfast ruled that Sarah Ewart’s right to private and family life was violated. The Commission supported Sarah Ewart’s case, following on from its own Supreme Court Case in June 2018 which also found Northern Ireland laws were contrary to human rights standards.
Chief Commissioner Les Allamby said:
“We would like to commend Sarah’s braveness in taking forward this legal challenge. Sarah should not have had to take this case in the first place, in 2018, the Supreme Court ruled clearly that N.I laws ran contrary to human rights standards, Parliament should have changed the law then without delay. We are delighted at this step forward today and the potential wider impact it will have in the future for women and girls in Northern Ireland.”
Interviews available with Chief Commissioner Les Allamby. Contact Claire Martin to arrange on 07717731873.
Notes to Editors:
Sarahs Ewarts case
Human Rights Commission’s Intervention: The NI Human Rights Commission intervened in Sarah Ewarts case. In its intervention in the Sarah Ewart case the Human Rights Commission has focussed on highlighting to the court: international law and particularly the Convention Eliminating Discrimination Against Women (CEDAW) and the Inquiry that the CEDAW Committee carried out into Northern Ireland’s termination of pregnancy laws. The Inquiry released a report in February 2018 finding that the UK Government was responsible for grave and systemic human rights violations under the CEDAW Treaty for its continued criminalisation of terminations of pregnancy in Northern Ireland and its failure to provide terminations in cases of serious foetal abnormality, rape and incest. There were four other interveners in the Sarah Ewart case: Humanists UK, Amnesty International, Center for Reproductive Rights and Precious Life.
Human Rights Commissions Supreme Court Ruling: 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.
Other Recent N.I Developments on Termination of Pregnancy:
The NI (Executive Formation) Bill. 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.
What this Bill means in practice:
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.
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.