Abortion: Attorney General John Larkin expresses concern about wording of potential law change

Northern Ireland’s attorney general has expressed concern about the abortion amendment overwhelmingly passed by MPs on Tuesday, saying that it is unclear and inconsistent with important human rights texts.

By The Newsroom
Thursday, 11th July 2019, 10:25 am
Attorney General John Larkin said that the report on which the changes are based was not drafted clearly
Attorney General John Larkin said that the report on which the changes are based was not drafted clearly

In an intervention which is highly unusual because it comes before Parliament has completed its legislative process, John Larkin told the News Letter that there were issues with the report which MPs have instructed the secretary of state to implement.

The amendment by Labour MP Stella Creasy and others was passed by 332 votes to 99.

However, although the amendment clearly approved a significant liberalisation of Northern Ireland’s restrictive abortion law, it was drafted in an unusual way which means that it is not entirely clear what form the new law will take.

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Ms Creasy’s amendment compels the Northern Ireland secretary of state to make regulations – a form of secondary legislation which cannot be amended by MPs – “to give effect to the recommendations of the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)”.

The complex 22-page CEDAW report from last year contains 13 recommendations which Secretary of State Karen Bradley must now implement. The first recommendation aims to secure the complete decriminalisation of abortion by repealing 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”.

On one reading, that would move Northern Ireland’s abortion law from being the most restrictive in the UK to being the most liberal because there would no longer be any criminal sanction for any form of abortion at any point in a pregnancy.

Prominent anti-abortion campaigner Peter Lynas of the Evangelical Alliance, who is a former barrister, claimed that the amendment “would leave a hawk’s egg with better protection than an unborn child”.

However, the CEDAW report goes on to recommend “legislation to provide for expanded grounds to legalize abortion at least in the following cases”, with those cases including rape and incest, a “threat to the pregnant woman’s physical or mental health, without conditionality of ‘long-term or permanent’ effects” and “severe fetal impairment”.

Given that the first recommendation would see abortion entirely decriminalised, the subsequent reference to a restricted regime to “legalise” abortion appears contradictory.

Yesterday Ms Creasy could not be contacted but one of those involved with the campaign to change the law said that it was envisaged that there would be no criminal sanctions for any form of abortion, nor even civil penalties such as fines, but that medics would be regulated through their regulatory bodies such as the GMC.

However, when contacted by the News Letter, Mr Larkin said: “The CEDAW report to which clause 10 refers is, plainly, not drafted clearly or even consistently with important human rights texts.

“Any binding interpretation of what the words in clause 10 actually mean, however, must await the form in which those words are contained, if they are contained, in an Act of Parliament.

Grainne Teggart of Amnesty International, which has campaigned to legalise abortion, said that the change “does not equate to the extension of the 1967 Abortion Act” to Northern Ireland, adding that “the 1967 act itself is not human rights compliant”.

But she said that abortion “will no longer be a criminal offence and will be regulated like any other form of healthcare”. Ms Teggart added: “We are calling on the Secretary of State and the UK Government to begin work urgently on what this legislation will look like.

“This has obviously been a long time coming and at a time when a mother is facing prosecution for buying abortion pills for her daughter, this simply cannot come quickly enough.”

The CEDAW report which Tuesday night’s Commons amendment means will shape Northern Ireland’s abortion law was scathing about the current situation.

Last March’s report described carrying an unwanted pregnancy to full term as “torturous” and found that the UK was guilty of “perpetrating acts of gender based violence against women through its deliberate maintenance of criminal laws disproportionately affecting women and girls, subjecting them to severe physical and mental anguish that may amount to cruel, inhuman and degrading treatment”.

The report also criticised what it said was “the prevalence of discriminatory gender stereotypes portraying a woman’s primary role as that of mother, as rooted in culture and religion” and the “religious condemnation of women who undergo an abortion”. It also criticised “health-care facilities suffused with negative stereotypes regarding women primarily as mothers”.

The UN sub-committee said that “the failure to combat stereotypes depicting women primarily as mothers exacerbates discrimination against women and violates article 5, read with articles 1 and 2, of the Convention”.

Speaking on BBC Radio Ulster’s Talkback programme yesterday, Northern Ireland’s chief human rights commissioner Les Allamby said he did not believe the change would lead to “abortion on demand” and said he believed there would “clearly need to be a consultation period” before the law took effect.

However, Sir Jeffrey Donaldson said that a consultation was all but impossible, given the tight timeframe.