Why the North's abortion law awaits a new trial

The murky waters of abortion practice in Northern Ireland are throwing up waves. Simon Lee makes an appeal for clarity.
FriVENT‘ ONE YFARS ago, the Standing Advisory Commission on Human Rights (SACHR) was established in Northern Ireland. The breadth of SACHR's work is indicated by the chapter headings of our latest annual report: they include security policy, the police, domestic violence, education disability, fair treatment and medical law and ethics.
The Irish media, North and South, have focused this year, as usual, on SACHR's views about the criminal justice system and have been intrigued by our plans regarding democratic rights. The Catholic media, however, do not seem as interested even in the questions of fair employment and equal rights for Catholics. Within the media's well-known obsession with sex, there has not even been a whisper about our views on sex selection. The one topic apparently of interest in the whole annual report is abortion law.
Of course, interest in this is welcome, as it would be in the rest of the Commission's work. Seen in that wider context, however, it is unlikely that a body with a distinguiihed track record on human rights would be part of some pro-abbrtion conspiracy. On the contrary, the commission is driven by the logic of its general human rights concerns to point out where the Northern Irish law fails to meet international standards. This was the starting-point of our worries about the law on abortion, in the wake of the Dublin X case two years ago. There have been rumours of a somewhat similar case in the Republic in recent weeks.
In Northern Ireland, the position has also been shrouded in mystery. SACHR has been frustrated in its efforts to establish the number of abortions in the NHS here and the alleged grounds for them. It has been a scandal that this information has not been collated hitherto, but the Secretary of State's response to our annual report, laid before Parliament on 30 June, indicates that we will in the future have official figures on the practice of abortion within Northern Ireland. The government has also said that it will now also consider whether to follow SACHR's proposal of bringing forward options for clearer law.
That issue of clarity has been at the heart of SACHR's concerns. just because others may have called• for clarification with motives which their critics suspect (whether in the run-up to the English 1967 Act or in response to the Downing Street Declaration) does not mean that anyone who calls for clarity in the law is the devil incarnate. The European Court of Human Rights demands certainty as its first condition for "law" to be valid law at all. Since SACHR, in common with all the Northern Irish political parties, calls for a bill of rights modelled on the European convention, it would be humbug not to seek the level of certainty in our law which that requires.
Last week's Catholic Herald, however, reported Betty Gibson of SPUC Northern Ireland as saying: "There is no need to clarify the law here and there never has been. The law is perfectly clear". SPUC was running this line exactly a year ago when a previous SACHR report included my first paper on abortion law. SPUC implied that abortion was not then lawful in Northern Ireland by claiming that "Parliament will, be invited to legalise abortion in Northern Ireland" (this was inaccurate in two senses: SACHR made it clear that it was not its intention to promote abortion on demand or any other substantive proposal but my italics serve to high-light a second inaccuracy, namely the implication that abortion is not already legal in Northern Ireland in certain circumstances).
Since then, two High Court decisions, in the K and A cases, have both upheld the legality of abortion in Northern Ireland. In both cases, lack of clarity in the law stood out in the worries of medics and lawyers. In the A case, the medics really did seem in a quandary about the law. In the K case, Lord Justice MacDermott quoted Lord Diplock on the equivalent law which used to prevail in England as "unsatisfactory and uncertain:" and went on to say "That continues to be the position in Northern Ireland a position which in the best interests of not only the medical and legal professions but more importantly of the public at large ought to be remedied". It has never been my view, nor SACHR's, that the 1967 Act was a model to follow in terms of its substance. Both my papers specifically disavowed that "solution". My argument was that our legal system should have the confidence to devise a better law, not that it should copy England's flawed legislation.
Nonetheless, the judge is right to observe that the law before the 1967 act was uncertain in England and the law in Northern Ireland is at least as uncertain now, probably more so given his variation on the familiar themes as when abortion is lawful. Abortion law in both jurisdictions, and in the Republic, rests on the 1861 Act's prohibition of procuring miscarriages "unlawfully". It all depends on what one means by unlawfully. Although the 1967 Act, now even more disastrously amended at the instigation of the pro-life lobby, sets out further defences to a charge under the 1861 Act, the common law always allowed some abortions to be lawfully procured. Lord Justice MacDermott disliked the English version of this, that abortions are lawful when the woman would otherwise become a "mental or physical wreck". While he agreed that the law "does not relate only to some life-threatening situation", he preferred to couch the law in these terms: that "the doctor's act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother". Although he went on to qualify this by saying that the "adverse effect must be a real and serious one and it will always be a question of fact and degree whether the perceived effect of termination is sufficiently grave to warrant terminating the unborn child", this strikes me as unsatisfactory.
My latest paper shows how, for example, the rights of the disabled foetus could be protected in law in a way that is tighter than the existing Northern Irish practice or English law. I have been arguing that the law is unclear on this point, that I would interpret the law so as to prohibit such abortions but that the practice is to allow them and there is some uncer
tainty as to how a judge would react when a case like is is brought to court. At p sent, English law talks ab ut a
substantial risk of serious dkap. Northern Irish NHS, practice is to allow abortion (in my view illegally) in cases s ch as when the unborn chit has Down's Syndrome. My aper for SACHR shows, int alia, how all abortions cou d be made unlawful but if ciety were to allow some abo . ons on grounds of handica the law could still be draft in a
tighter way so as to prof for example, unborn chil with Down's Syndrome. This not to say that SACHR or I uld advocate these particular sions, nor are they withou# difficulties of interpetation. It Would be possible to draft a more restrictive as well as a more permissive legal position Although I am saddened by
SPUC's unwillingness to reciprocate, I acknowledge their good faith. The questions for SPUC, however, include whether it is prepared to spell out its understandin4 of the precise circumstances in which abortion is lawful and unlawful in. Northern Ireland and, on the assumption that it now accepts that the law in Northern Ireland currently allows abortion in some circumstances, why it is not prepared to seek to change that law. From whatever angle one approaches the issue of abortion law in Northern Ireland, tragic choices will now have to be faced. I do not believe that the outcome will be abortion on demand but I do believe that the current abortion law is only on remand, awaiting trial.
Simon Lee is professor ofjurisprudence at Queen's University, Berast, and a member ofSACHR