Commission welcomes Westminster intervention on termination of pregnancy and same-sex marriage

Human Rights Commission welcomes Westminster intervention on termination of pregnancy and same-sex marriage

The Human Rights Commission has welcomed the recent interventions at Westminster to progress legislation on termination of pregnancy and same-sex marriage.

Chief Commissioner Les Allamby commented:

“ The Human Rights Commission has repeatedly voiced its concern that Northern Ireland remains the only part of the UK where same-sex couples cannot be married, or considered married if they decide to live here and have done so somewhere else in these islands.

“The commitment by the Westminster Parliament to ensure the law is changed, in the continuing absence of devolved government, is progressive and will ensure a welcomed equal level of protection. The commitment shown by Members of Parliament to protect the fundamental rights of women and girls in Northern Ireland and amend the law on Termination of Pregnancy is also long overdue.

“Legislation should be introduced to end the criminalisation of women and girls and the professionals who provide them with necessary healthcare. We must not have to continue to wait any longer to have the basic human rights of more than half the population of Northern Ireland protected.

“The Secretary of State is required to ensure that all laws in Northern Ireland are compatible with the UK’s international obligations. It is now over a year since the Supreme Court and the United Nations made their views clear that the law on termination of pregnancy in Northern Ireland is not compatible with human rights.

“The practical implementation of any new law is a matter for the government, but the United Nations has already provided clear guidance on the necessary, limited and focused consultation that should take place with healthcare professionals to ensure that women and girls are provided with the highest standard of healthcare that they deserve and are entitled to.”

Notes to editors:

The NI (Executive Formation) Bill is currently progressing through the Westminster Parliament. A series of amendments have been tabled to the Bill, including relating to the reform of the law governing termination of pregnancy and the legalisation of same-sex marriage. Members of parliament voted on Tuesday 9 July 2019 to back amendments which require the government to change termination of pregnancy laws and extend same-sex marriage to Northern Ireland if devolution is not restored by 21 October 2019.

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.

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)

(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

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.

Human Rights

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.