Abortion vote: Attorney General expresses serious concerns

Hours before MLAs vote on proposals to allow abortions in Northern Ireland on the grounds of '˜fatal foetal abnormality', it can be revealed that the Attorney General has expressed serious legal concerns about the legislation before the Assembly.
John LarkinJohn Larkin
John Larkin

This afternoon MLAs will consider amendments to the Justice (No. 2) Bill, some of which would increase the limited circumstances in which abortion would be legal in Northern Ireland.

The News Letter has seen a letter which Attorney General John Larkin sent to TUV leader Jim Allister, who had asked him for advice on the legal standing of the amendments, should they pass into law.

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In his five-page response – which is dated 5 February – the Executive’s chief legal officer expressed a series of serious concerns about what has been proposed.

There are eight amendments to the Justice (No. 2) Bill on the subject of abortion, some of which aim to ease restrictions on abortion if the child cannot survive outside the womb, or if pregnancy is due to rape.

The chance of the amendments passing into law had already been lowered significantly after the DUP and SDLP said that their MLAs would vote as a bloc against the proposals, rather than their MLAs being given a free vote.

However, the Assembly has said that as of midday there had been no petition of concern – a veto mechanism which only the DUP is able to use on its own – in relation to any aspect of the bill.

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A petition can be lodged as late as one hour before the vote on each amendment.

In Mr Larkin’s letter to Mr Allister he said: “I note that the core of the proposal is to change our criminal law in relation to the abortion of an unborn child with a disability which is ‘likely to prove fatal’.

“I have a concern about legislative competence, primarily, in terms of section 6(2) (d) of the Northern Ireland Act 1998 [compatibility with EU law], given that the UN Convention on the Rights of Persons with Disabilities [UNCRPD] has been specified by the European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009 as one of the ‘EU Treaties’ for the purposes of the European Communities Act 1972.”

He said that meant that the Assembly’s ability to legislate included “limitations” placed on it by the UNCRPD.

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Mr Larkin went on: “My concern stems from articles 1-4 (general principles and obligations), article 5 (equality and non-discrimination) and 10 UNCRPD, the focus of which is on equal protection of the right to life for those with disabilities and those without.

“These articles of the UNCRPD would appear to operate domestically (as Union law) to prevent this outcome.

“Providing for a criminal law exception for ‘fatal foetal abnormality’, as proposed by this amendment, provides unborn children diagnosed with such a disability with much less protection under the law of Northern Ireland than those without such a disability.”

Mr Larkin said it was “inconceivable that the Strasbourg Court, if asked to consider article 8 in the context of ‘fatal’ foetal abnormality, would find that the ECHR requires protection of the rights of women in a way which discriminates against unborn children with that particular disability”.

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Mr Larkin also expressed serious concerns about the amendments in relation to what he said was the inadequacy of the “‘conscience’ provisions” for “persons with the faith-based(or ethical) objection to participation in abortion”.

He said that “the effect of the proposed amendment would be to require for the first time in Northern Ireland a class of NHS employees to engage in activities that are utterly at variance with their religious beliefs.”

Mr Larkin said he was confident that a challenge to the European Court of Human Rights on those grounds would be successful.