Abortion law in Northern Ireland Contents

10Our conclusions and recommendations

160.Our inquiry has focused on specific issues relating to human rights and the international obligations of the UK Government in relation to women and girls in Northern Ireland. The wider issue of the law on abortion needs to be considered as part of a wider debate on the law in other parts of the UK which is beyond the remit of this Committee. We make the following conclusions and recommendations:

Devolution in Northern Ireland

1.We respect the principle of devolution and believe it is rightly the responsibility of the Northern Ireland Assembly to legislate on matters relating to abortion law. One of the consequences of devolution is that decisions may be taken which both differ from those taken in the rest of the United Kingdom and with which people in the rest of the United Kingdom may disagree. However, there are specific obligations for the Northern Ireland Assembly not to pass Acts that are contrary to the UK’s international obligations. Furthermore, devolution does not remove the UK Government’s own responsibilities to comply with its international obligations and internal laws cannot be used to justify a failure to comply with human rights standards. (Paragraph 51)

Responsibility under international human rights obligations

2.The UN Committee on the Elimination of Discrimination Against Women covered a wide range of issues in its report including law, access to services, education and sexual and reproductive rights. The UN Committee found that there were ‘grave’ violations in relation to cases of severe foetal impairment, including FFA, and rape or incest, and ‘systematic’ violations in the criminalisation of abortion and highly restrictive access which compels women to a) carry pregnancies to full term; b) travel outside of Northern Ireland to undergo legal abortions or c) self-administer with abortion pills. (Paragraph 64)

3.The UK Government needs to set out a clear framework and timeline to address the breaches of women’s rights in Northern Ireland under the CEDAW Convention that have been identified by the UN Committee on the Elimination of Discrimination Against Women if there is no government in Northern Ireland to take this action. (Paragraph 65)

4.The European Convention on Human Rights (ECHR) provides a right to privacy and family life under Article 8. This has been incorporated into domestic law in the Human Rights Act 1998 and the UK Supreme Court identified that there had been a breach of women’s Article 8 rights in relation to cases of fatal foetal abnormality, rape and incest. The Court stated that the Northern Ireland Human Rights Commission which had brought the case did not have standing so it did not make a declaration of incompatibility. Nevertheless, this is a strong statement by the highest court in the land that it has identified that the current prohibition of abortion in Northern Ireland breaches an individual’s ECHR human rights in these cases. (Paragraph 77)

5.It is a serious error that the Northern Ireland Human Rights Commission does not have legal standing to take human rights cases to court, without the need for a victim to take the case. The situation of a woman or girl who became pregnant as a result of rape or incest having to pursue a court case highlights precisely why it should not depend on an individual victim to take a case to court. This issue of the Northern Ireland Human Rights Commission’s standing needs rectifying urgently so that victims do not have to take a case. (Paragraph 82)

6.The UK Government must rectify the error in the Northern Ireland Human Rights Commission’s standing as a matter of urgency. We welcome the Secretary of State for Northern Ireland’s commitment to rectifying this matter but the Government’s response to this report must set out the timeline for doing so within the next six months. (Paragraph 83)

Information for healthcare professionals and women and girls

7.There can be a conflict between doctors’ duty of care to their patients and the law, for example where a doctor might consider that referring a patient to lawful abortion services in another jurisdiction is medically the best course of action but believes that the law does not allow him or her to do so. (Paragraph 108)

8.There can also be a conflict between doctors’ duty of confidentiality to their patients and the law because of section 5 of the Criminal Law Act 1967 (Northern Ireland) which creates an obligation to report a criminal offence. (Paragraph 109)

9.The UK Government introduced funding for women and girls in Northern Ireland to access abortion provision in England in 2017. Doctors have still not been provided with information from the Department of Health NI about advising patients about the scheme and patients are not getting the information they need. (Paragraph 110)

10.Despite the requirement for ministers to ensure that any new policy is lawful, the Chief Medical Officer told us that he thinks there are questions about the legality of doctors in Northern Ireland making referrals to this scheme. (Paragraph 111)

11.The Government Equalities Office should immediately publish to us, as the body that scrutinises its spending, advice on the legality of making referrals to the funded scheme, following which the Department of Health for Northern Ireland should reissue guidance for healthcare professionals on abortion to make it clear that referring patients to the funded scheme is not unlawful. (Paragraph 112)

12.Women and girls who travel outside of Northern Ireland to access an abortion do not have enough information about their options for bringing the remains of the foetus or unborn child home for personal reasons, medical purposes or as evidence in the event of any criminal proceedings. (Paragraph 115)

13.There should be specific information provided to women and girls about their rights to bring home the remains of the foetus or unborn child for personal reasons or for medical purposes or in the event of criminal proceedings. (Paragraph 116)

14.The Border Agency must develop clear protocols for ensuring that there is a clear pathway for families who are travelling across borders with foetal remains which provides them with dignity. (Paragraph 117)

Marginalised women and girls

15.The UK Government’s funding for abortion provision in England has been welcomed by many but it is not accessed equally by different groups of women and girls:

16.Women and girls who are pregnant as a result of rape or incest, and professionals who become aware of this, may face prosecution under Section 5 of the Criminal Law Act 1967 (Northern Ireland) if they have not reported the offence to the police. (Paragraph 124)

17.The Government Equalities Office should carry out an impact assessment, or publish any that have been carried out, to ascertain whether the policy of funding abortion provision in England can be accessed equitably by different groups of women and girls in Northern Ireland. (Paragraph 125)

18.The Government Equalities Office should work with community organisations supporting migrant women and girls, victims of violence and other marginalised groups to develop an information campaign to explain the funding of abortion provision, in particular to marginalised groups of women and girls. (Paragraph 126)

19.The Government Equalities Office should work with the Home Office to develop pathways for migrant women to travel to England to access the scheme. (Paragraph 127)

20.The Attorney General for Northern Ireland should issue human rights guidance on Section 5 of the Criminal Law Act 1967 (Northern Ireland) similar to the guidance on social security to state 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. (Paragraph 128)

Fatal foetal abnormality

21.There has been no follow-up on the clear recommendations of the Working Group on Fatal Fetal Abnormality which was commissioned by two Northern Ireland Ministers in 2016. The Working Group’s recommendations included a change in the law to permit abortion when there has been a diagnosis of fatal foetal abnormality and it set out a range of legal mechanisms for achieving this. (Paragraph 142)

22.The Chief Medical Officer for Northern Ireland, who chaired the Working Group, told us that doctors said they were not able to fulfil their duty of care towards their patients in the cases of pregnancies where there had been a diagnosis of fatal foetal anomaly. We accept the view of the Chief Medical Officer for Northern Ireland that guidance cannot remedy this and a change in the law is required. (Paragraph 143)

23.The CEDAW Committee and the Supreme Court identified breaches of human rights obligations in cases where there has been a diagnosis of fatal foetal abnormality. (Paragraph 144)

24.It is our view that nothing should stand in the way of a doctor’s duty of care to their patient and the conflict identified by the Working Group on Fatal Fetal Abnormality must be addressed. The Northern Ireland Executive should act to implement the recommendations of the Working Group which was commissioned by Northern Ireland Ministers, including legislating to permit abortion in these circumstances. 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. (Paragraph 145)

Postcode lottery of provision

25.Women and girls in Northern Ireland face a postcode lottery of provision when it comes to access to abortion even within the narrow scope of the existing law. This disparity of provision between hospital trusts, and even within the same hospital, is driven, in part, by the draft 2013 guidance consultation and the 2016 issued guidance. Women and girls on low incomes outside of Belfast are likely to be particularly disadvantaged. (Paragraph 155)

26.Where women and girls in Northern Ireland purchase abortion pills online and subsequently present at hospital bleeding, medical professionals may not always seek full information from them for fear of prosecution. The GMC says that there can be a conflict between doctors’ duty of confidentiality and the law. (Paragraph 156)

27.The Attorney General for Northern Ireland should issue human rights guidance on Section 5 of the Criminal Law Act and doctors’ duty of confidentiality to their patients. (Paragraph 157)

28.In the absence of a separate regulatory body overseeing the provision of abortion services, the Department of Health acting as a regulatory body should have a duty to regularly review consistency of services between trusts, training of the profession and facilities so that all women and girls have the same access to treatment within the law. (Paragraph 158)

29.The GMC should run a campaign to raise awareness about the complaints system where doctors’ standards fall below an expected level in order to increase public confidence in doctors. (Paragraph 159)





Published: 25 April 2019