Summary
Since January 2017, when the Northern Ireland Assembly ceased functioning, there has been an accumulation of significant developments relating to abortion in Northern Ireland. These include; a UN Committee finding ‘grave’ and ‘systematic’ breaches of women’s rights, the UK Supreme Court identifying a breach of human rights in relation to cases of fatal foetal abnormality or where the pregnancy has resulted from rape or incest, introduction of UK Government funding for women and girls to access free abortion services in England, evidence that significant numbers of abortion pills purchased online are being sent to Northern Ireland and a lack of follow-up to a report on fatal foetal abnormality commissioned by Northern Ireland ministers.
The absence of an Executive in Northern Ireland means that there is no devolved government to respond to these significant developments, no scrutiny bodies to make sure policies are working well, no scrutiny of the use of UK Government funds for women and girls seeking abortion in England and a failure to respond to international human rights obligations.
We have visited Northern Ireland twice and heard from a large number of witnesses, professionals, stakeholders and individuals impacted by the law in three different locations, as well as in Westminster.
International human rights obligations: The UK Supreme Court identified a breach of human rights in relation to cases of fatal foetal abnormality, rape and incest. It did not make a declaration of incompatibility because the Northern Ireland Human Rights Commission, which brought the case, did not have standing. Nevertheless, this is a strong statement by the highest court in the land. The UK Government must set out a timetable for rectifying the error in the Northern Ireland Human Rights Commission’s standing within the next six months so that an individual victim, such as a victim of rape or incest, does not have to take a case to court.
Guidance for healthcare professionals: There is uncertainty about the legality of doctors in Northern Ireland referring patients to the UK Government funded scheme providing free abortions in England and there can be a conflict between healthcare professionals’ duties to their patients, and the law and guidance on abortion in Northern Ireland. This is unacceptable. The Government Equalities Office should publish its legal advice on the scheme funding women and girls from Northern Ireland to access abortions in England, following which, the Department of Health for Northern Ireland should reissue guidance for healthcare professionals making it clear that referring patients to the funded scheme is not unlawful.
Information for women and girls about the remains of the foetus or unborn child: There is not enough information for women and girls who travel outside of Northern Ireland about their options to bring home the remains of the foetus or unborn child. There should be specific information for women and girls about their rights to bring home the remains of the foetus or unborn child and the Border Agency must develop clear protocols for ensuring that there is a pathway for families who are travelling across borders with foetal remains which provides them with dignity.
Marginalised women and girls: The UK Government’s funding for abortion provision in England is not accessed equally by different groups of women and girls, including; those on low incomes, those too ill to travel, those who are being abused or coerced by their partner, those with insecure immigration status and without travel documentation or those not registered with a GP. In addition, women and girls who are pregnant as a result of rape or incest may face prosecution if they have not reported the offence to the police under Northern Ireland law.
The Government Equality Office should publish an equality impact assessment on the UK Government funded scheme and should work with community organisations supporting marginalised groups of women and girls to develop an information campaign to explain the provision. The GEO should work with the Home Office to develop pathways for migrant women to travel to England to access the free provision. The Attorney General for Northern Ireland should publish human rights guidance stating that it will rarely be in the public interest to prosecute survivors of rape and incest, and professionals treating them, who have not reported the offence to the police.
Fatal Foetal Abnormality: The Working Group on Fatal Fetal Abnormality published a report with clear recommendations, including a change in the law to permit abortion where there had been a diagnosis of FFA but there has been no follow-up on this. Nothing should stand in the way of a doctor’s duty of care to their patient and, in the absence, of the Northern Ireland Executive, the UK Government must legislate as a matter of urgency to allow for access to abortion where there has been a diagnosis of fatal foetal abnormality.
Published: 25 April 2019