Key recommendations by expert group for provision of lawful terminations revealed

Friday 23 November 2012 11.07
European Court of Human Rights addressed Ireland's legal stance ABC V Ireland
European Court of Human Rights addressed Ireland's legal stance ABC V Ireland

The expert group on abortion has recommended four options on how to implement the judgement by the European Court of Human Rights which requires the Government to provide legal certainty to the issue.

The report, a section of which has been seen by RTÉ's Prime Time, is due to be brought before the Cabinet next Tuesday before being published.

It outlines a total of four options - the introduction of guidelines, regulations, legislation or legislation plus regulations - to address the European Court of Human Rights judgement.

The first option - the introduction of Guidelines – would not require legislation and would be flexible, but according to the report would be unlikely to satisfy Ireland's European obligations because they would not have any legal force.

The second approach in allowing termination in circumstances of a threat to the life of a woman would be for the Minister for Health to issue regulations.

However, primary legislation would need to be enacted by the Oireachtas.

The third and fourth approaches would be to introduce legislation alone or legislation plus regulations.

The main advantage of these approaches is that the Oireachtas would have the opportunity to discuss and vote on the proposed legislation.

The main disadvantage of both is that passing legislation is likely to take a considerable period of time.

A combination of primary legislation and regulations -introduced by secondary legislation - allows both the Oireachtas and the minister a role in detailing the circumstances in which a life-saving termination could happen

The Expert Group did not address the circumstances where there is a threat to the health of a woman, as distinct to her life.

Non Statutory implementation

Option one: guidelines

The only option which is non-statutory is the introduction of guidelines which would not have binding force.

This option is unlikely to satisfy our European obligations, ie the Committee of Minsters at the Council of Europe.

All other options would require some form of legislation - either by way of new legislation or amending existing legislation.

Statutory implementation

Option two: Health Minister issues regulations

The report says that "the minsters could not issue regulations without being given the power to do so by enabling legislation.

For this reason "it is not likely to prove a speedier or superior solution than the other legislative options."

Option three: Introduction of legislation alone

The third option is for legislation alone to be introduced.

The advantage of this is that it would allow the Oireachtas the "opportunity to discuss and vote on all the relevant details of the proposed legislation".

The report says that the second advantage would be that "access to lawful termination of pregnancy in Ireland would be put on a statutory and therefore a more secure footing".

The disadvantages of this it that "process of drafting and democratic scrutiny is likely to take a considerable period of time"

Another disadvantage is that "postulating all the details of the assessment and review process in primary legislation might be too rigid an approach.

Even minor changes that might arise following implementation or in light of scientific advances would require full scrutiny and futher passage through the Houses of the Oireachtas.

Both the introduction of Health Minister regulations or legislation will fulfill the requirements set out in the judgement in A,B and C v Ireland.

Option four: Introduction of legislation plus regulations

The final option highlighted in the report is the introduction of legislation plus regulations. 

The advantage of having legislation plus regulation is that the role of the Minister for Health "would come under less scrutiny in relation to procedural matters as these would be in the legislation."

Another advantage is that regulations could be amended relatively easily.

This would facilitate changes in the clinical practice, scientific advances and any challenges arising from their implementation.

The disadvantage is the same as outlined in relation to legislation alone, ie "due to the nature of this legislation, the process of drafting and democratic scrutiny is likely to take a considerable period of time."

Option five: New legislation or an amendment to offences against the Person Act 1861 

Existing legislation under subsections 58 and 59 of the Offences Against the Persons Act 1861 abortion is criminalised. 

The repeal or replacement of the act would provide clarity and certainty to the law.

It would comply with Ireland's obligations as set out under the ECHR ruling.

Article 40.3.3 would be adhered to by a modern statement of the law on abortion including measures consistent with the respect to be accorded to the unborn.

The disadvantage of this would be the drafting of the legislation plus the democratic scrutiny is expected to take a considerable period of time.