Ireland and abortion – the debate continues

The Irish Government has published the Report of the Expert Group on the Judgment in A, B and C v Ireland chaired by Sean Ryan J which was established by Government to recommend a series of options on how to implement the ECtHR’s judgment in A, B and C v Ireland 25579/05 [2010] ECHR 2032 (16 December 2010).

In A, B and C the Grand Chamber found that there had been a violation of C’s right to private and family life contrary to Article 8 ECHR because of Ireland’s failure to implement the existing constitutional right to lawful abortion. Under the Group’s terms of reference, it was not its function to specify how the judgment should be implemented but rather to provide options. Further background details can be found in a Department of Health press release.

The Expert Group offers four options:

  • Non-statutory guidelines – which the Group appears immediately to have dismissed on the grounds that guidelines in isolation will not fulfil all the requirements set by the judgment in A, B and C because they are, by their nature, non-binding and do not have force of law, nor would they resolve the legal uncertainties arising from the Offences Against the Person Act 1861 (which is still in force in Ireland).
  • Regulations issued by the Minister for Health – but while this might satisfy the requirements of the Grand Chamber judgment, the Minister could not issue regulations without enabling primary legislation.
  • Primary legislation de novo or amendment of an existing Act to regulate access to lawful termination of pregnancy in Ireland in accordance with the Attorney General v X [1992] 1 IR 1, the requirements of the ECHR and the judgment in A, B and C:  in this option, all the details on the assessment of entitlement to a lawful termination of pregnancy would be enacted in legislation, enabling the Oireachtas to scrutinise all its provisions and leaving no significant matters to be dealt with by regulations – but that process would take considerable time.
  • A combination of primary legislation with detailed regulations “to deal with detailed and practical matters relevant to the issue, such as changing medical practices and scientific advances, as well as addressing emerging challenges to implementation” – again, that would be a slow process.

The Group also considered two legislative sub-options: wholesale repeal of the 1861 Act and its replacement with a full restatement of the law on abortion, or retaining the 1861 Act and amending it to take account of the judgment in the X case. The Group seems to prefer the former course.

The Government is considering the report and the Health Minister has said that a decision on what action to take will be made by the end of next month, with implementation early in the New Year. The Irish Times reports that Minister for Justice Alan Shatter, speaking in the Dáil on the Private Member’s Bill proposal brought forward by Clare Daly TD calling for abortion legislation, said that for three decades Ireland had had “a deeply dysfunctional and obtuse legal architecture badly in need of reform” but insisted that the Government was “not considering in any shape or form abortion on demand”.

As things have turned out, the timing could hardly have been more unfortunate. Whatever option the Government chooses to pursue, the subsequent debate is bound to be influenced by the tragic death of Savita Halappanavar on which we reported in our roundup on 18 November.

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  1. Pingback: More on A, B and C v Ireland and reforming abortion law | Law & Religion UK

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