On the afternoon of Monday 21 October 3019, a last ditch attempt at the Stormont assembly to stop abortion law changes in Northern Ireland failed, and the law is set to change at midnight*. Events leading to the recall of the NI assembly were summarized in our round-up of news yesterday, and Monday’s developments at Stormont are detailed in a BBC report. The consequences of these events are described in the government document Report pursuant to section 3(5) of the Northern Ireland (Executive Formation etc) Act 2019, extracts of which are reproduced below.
3(10): Abortion law review
This report is based on information provided by the Northern Ireland Office.
Section 3 of the Northern Ireland (Executive Formation etc) Act 2019 requires the Secretary of State to publish and lay before both Houses of Parliament a report on progress made towards forming an Executive and other matters.
This section of the report is made in accordance with section 3(10) of that Act which states:
The report under subsection (1) must include a review of the current legal framework on abortion in Northern Ireland with an analysis of how that framework could be amended by Parliament during the period when there is no Executive, subject to a sunset clause to respect devolution, in order to comply with the human rights obligations of the United Kingdom.
The Government has been clear in its preference that as abortion law is a devolved issue, reform should be taken forward in the appropriate place – a restored and functioning Northern Ireland Assembly. It remains the Government’s hope that devolved institutions will be restored at the earliest opportunity. This report sets out the steps that will be taken if the Northern Ireland Executive is not restored by 21 October and how the Government plans to implement the resulting legal requirements of the Northern Ireland (Executive Formation etc) Act 2019.
The Government recognises the sensitivities of these issues and the strongly held views on all sides of the debate across Northern Ireland. The importance of ensuring women’s safety and well-being, and providing as much clarity for healthcare professionals as possible, is being placed at the forefront of our approach throughout the whole process.
New legal situation from 22 October 2019 up to 31 March 2020 (‘the interim period’)
If the Northern Ireland Executive is not restored on or before 21 October, section 9 of the Northern Ireland (Executive Formation) Act 2019 comes into effect and has the following implications:
- on 22 October 2019 sections 58 and 59 of the Offences Against the Person Act 1861 in Northern Ireland (attempts to procure an abortion) will be repealed, which means that no criminal charges can be brought against women and girls who have an abortion or against qualified healthcare professionals or others who provide and assist in the abortion under these provisions; and
- on 22 October 2019 a moratorium on criminal prosecutions will come into effect, meaning that no police investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those provisions of the Offences Against the Person Act 1861 (regardless of when an offence may have been committed).
In addition, if the Executive is not restored by 21 October, the Government will be under a statutory duty to regulate to put in place a new medically-based legal framework to provide lawful access to abortion services in Northern Ireland by 31 March 2020 in line with the recommendations of the 2018 United Nations’ Committee on the Elimination of Discrimination against Women (CEDAW) inquiry report on abortion in Northern Ireland. [Reference 6, 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.]
An interim period therefore arises, between 22 October 2019 and the date on which the new legal framework for accessing abortion in Northern Ireland is in place, which must be no later than 31 March 2020. During the interim period women who undergo a termination of pregnancy or a qualified healthcare professional who provides abortion services in Northern Ireland will no longer commit a criminal offence under the Offences Against the Person Act, and the moratorium on criminal prosecution and investigation takes effect.
Given the urgent timescales we are working to, and in the absence of a legal abortion framework in which services could operate, there are no plans for additional services to be routinely available in Northern Ireland before 31 March 2020. However, doctors remain under a duty to act where a woman’s life or health are at risk.
Importantly, during this interim period, other relevant laws relating to the termination of pregnancy will remain in place. In particular, section 25(1) of the Criminal Justice Act (Northern Ireland) 1945 which makes it a criminal offence for anyone to assist or wilfully act to ‘destroy the life of a child then capable of being born alive’, except where the purpose is to preserve the life of the mother ‘in good faith’ will remain in place. This means that abortions “where the foetus is capable of being born alive” will continue to be unlawful. Significantly, section 25(2) states:
“For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive.”
This reflected foetal viability in the United Kingdom at the time of the legislation and the relevant law in Northern Ireland has not been amended since 1945. In England and Wales, changes were made to the Abortion Act 1967 through the Human Fertilisation and Embryology Act 1990 and the time limit was lowered from 28 to 24 weeks.
The ability of women in Northern Ireland’s to access funded abortion services in this interim period is set out in full below.
It is recognised that during the interim period some women may continue to purchase medical abortion pills online. Under medicine legislation, abortion pills are prescription only medicines, the sale and supply of which is unlawful without a prescription and this is not affected by the changes outlined above. Women who may require medical help following use of medical abortion pills bought on the internet should be able to seek medical assistance as needed within Northern Ireland.
Guidance for healthcare professionals during the interim period
Guidance has been provided to healthcare professionals to confirm the new state of the law during the interim period, and their responsibilities [UK Government Guidance for healthcare professionals in Northern Ireland on abortion law and the terminations of pregnancy in the period 22 October 2019 to 31 March 2020 in relation to the Northern Ireland (Executive Formation etc) Act 2019].. This was circulated through the Royal Colleges and was made available on gov.uk on 7 October 2019. The guidance is intended to be a factual statement of the position in law in terms of the responsibilities for healthcare professionals to their patients ahead of the statutory changes which may come into force on 22 October 2019.
In addition, the guidance contains information for healthcare professionals in Northern Ireland about the funded abortion services in England available for women from Northern Ireland under the existing UK Government scheme. Healthcare professionals will be able to refer women to this service.
In the interim period, any healthcare professional who has a conscientious objection to the provision of abortion services, and who sees a patient considering a termination, should follow guidance from the General Medical Council (GMC), and any other relevant professional guidance which they are obliged to consider. Consideration is being given to a range of sensitive issues to be covered in the new legal framework, including providing for lawful conscientious objection in relation to the provision of treatment to patients.
Further guidance will be issued to healthcare professionals, together with further public communications, ahead of the potential new regulations coming into effect by 31 March 2020. Information will be updated on gov.uk.
Provision of termination of pregnancy services during the interim period
The Government anticipates that access to abortion services will not be routinely available in Northern Ireland during the interim period in the absence of a legal framework and the time needed to establish high quality service provision. It is Government’s priority that women obtain safe, high quality care, which they can receive through accessing the services available in England free of charge. We are working hard to ensure that services are routinely available in Northern Ireland as close as possible to 31 March 2020. This requires a range of sensitive policy considerations, as well as working with the healthcare professionals in Northern Ireland on a range of delivery and operational questions, ready to meet the 31 March 2020 deadline.
Fully funded abortion services in England are already available to women in Northern Ireland and from 22 October 2019, when accessing these services in England all travel and accommodation costs will be covered automatically, without the income-related eligibility criteria currently applied. In this interim period healthcare professionals in Northern Ireland should also be clear that they will lawfully be able to refer or signpost patients to these services and will not face any repercussions for doing so.
If approached by a woman considering a termination of pregnancy, healthcare professionals should provide her with the number for the Central Booking Service in England (0333 234 2184) or call the helpline on behalf of the woman. Healthcare professionals in Northern Ireland should be clear that they will lawfully be able to refer or signpost patients to these services from 22 October 2019.
The CBS can arrange for advice, support and counselling to be made available for women who are uncertain or unsure of their decision. Those with a conscientious objection to abortion should direct women to where information about services is available including Gov.uk. The package of care available includes:
- a consultation including impartial information/advice and where needed counselling with an abortion provider in England, including an assessment of whether the legal grounds for an abortion in England are met
- an abortion procedure
- HIV and sexually transmitted infection tests, and
- choice of contraception from the abortion provider.
If a healthcare professional does choose to offer an abortion service to women during the interim period, they should do so in line with their professional competence and guidance from their professional body, as well as within the bounds of other relevant laws.
Provision of termination of pregnancy services after the interim period
Work is underway on preparing for the new medically-based legal framework to be in place by 31 March 2020, and further information about our plans will be available in due course.
The Government recognises that in implementing the UN CEDAW report, and bringing forward the necessary regulations to introduce the new legal framework for abortion in Northern Ireland, there would be a range of sensitive policy issues that need to be carefully worked through.
We are currently reflecting on advice received from the Northern Ireland Human Rights Commission (consistent with its advisory function under section 69(3)(a) of the Northern Ireland Act 1998) in relation to the duty under section 9 of the NI EF Act, and the relevant international human rights obligations and standards, that have a bearing on the policy and regulation development. Officials have also met representatives of the medical profession and other stakeholders in recent weeks to hear some initial views, and these discussions will continue.
A public consultation will open on the proposed legal framework for Northern Ireland on or shortly after 22 October 2019 to enable individuals in Northern Ireland as well as all other relevant organisations to provide input and views on how this reform should be delivered.
* Likewise provisions for civil marriage of same sex couples will come into effect, with the first marriages due to take place is on the week of Valentine’s Day 2020.
The timing of this points up the oddity of DUP wanting to be different when it suits them, and the same when it doesn’t….
But, in any case, it was a non-starter from the outset. In order to fulfil the terms of the Northern Ireland (Executive Formation etc) Act 2019, what was required was the establishment of an Executive – which was never going to happen – not merely a meeting of the Assembly.
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