22nd October 2019 will be remembered for long in Northern Ireland as on this day the British Parliament by Northern Ireland Act, 2019 legalized abortion and same-sex marriage in Northern Ireland. The breakdown of local government in Northern Ireland enabled the British Parliament to step in and amend the local laws of Northern Ireland to bring it in sync with the British Human Rights Principles.
The UN Committee on the Elimination of Discrimination against Women’s decisions also statedthat the UK Government had a legal duty to decriminalize abortion in Northern Ireland to comply with its own human rights obligations. The proposed amendment is all set to take effect, weeks after the High Court in Belfast repelled a legal challenge deciding that Northern Ireland’s 158-year-old abortion laws are incongruent with the United Kingdom’s human rights principles per se.
Before this amendment, Northern Ireland had one of the most stringent laws for abortion. Abortion was observed to be legal only in the following circumstances under the Abortion Act of 1967:
- If the life of the pregnant woman is under risk;
- Preventing grave permanent injury to the physical or mental health of the pregnant woman;
- Risk of injury to the physical or mental health of the pregnant woman or any existing children of her family (up to a term limit of 24 weeks of gestation; or
- Substantial risk that if the child were born, it would “suffer from such physical or mental abnormalities as to be seriously handicapped
Apart from that the Stormont i.e. the Parliament of Northern Ireland also did not legalize same-sex marriages albeit the same was done in England, Scotland and Wales in the year 2014 thereby depriving the LGBT community of their basic human rights.
NORTHERN IRELAND (EXECUTIVE FORMATION ETC) ACT 2019: A CONCEPTUAL DISCUSSION
The Northern Ireland (Executive Formation etc) Act, 2019 enacted on 24th July 2019 extended the deadline for the restoration of the Northern Ireland Executive till 21st October 2019. In case if the Executive failed to restore by that date, then the Act would require the Secretary of State for Northern Ireland to implement recommendations concerning abortions made in the CEDAW report of 2018.
The CEDAW report of 2018 advocated legalization of abortion in case where there is a threat to a pregnant woman’s mental or physical health, without the conditionality of “long-term or permanent” effects. The report also recommended for termination in case of rape or incest. Since the Executive has not been restored till the deadline the Act is now operative in nature.
This Act also repeals Sections 58 and 59 of the Offences against the Person Act, 1861 [Northern Ireland]. As a result, no investigation can now be carried out and no criminal proceedings can now be initiated or continued in respect of any offense committed under Section 58 and 59 of the Offences against the Person Act 1861 [Northern Ireland].
The repeal of Sections 58 and 59 of the Offences against the Person Act 1861 also decriminalizes the following actions, in situations wherein the pregnancy has not reached 28 weeks of gestation:
- A woman administering drugs, or using any other instrument to cause (procure) her own miscarriage;
- Any person taking any of the same actions to cause miscarriage of any woman (including cases with no consent from the pregnant woman);
- Any person supplying or procuring drugs, any instrument or anything whatsoever, with intent, to cause the miscarriage of any woman.
This law would provide for wider access to abortion than in Great Britain, where abortions are generally permitted up to 24 weeks of gestation. Further, this Act also directs the Secretary of State to make changes to the laws of Northern Ireland to make it following the CEDAW report’s recommendations.
GAY MARRIAGE LEGALIZATION
The Northern Ireland (Executive Formation etc) Act, 2019 extended the deadline for the restoration of the Northern Ireland Executive till 21st October 2019. However in case if the Executive failed to restore by that date, then the provisions of the Northern Ireland (Executive Formation, etc) Act 2019 mandating same-sex marriage from 13th January 2020 will come into effect [Since the Executive has not been restored the Act is now operative in nature].
The Marriage (Same-Sex Couples) Act, 2013 legalized gay marriage in England, Scotland and Wales, but not in Northern Ireland. As a result, the LGBT community in Northern Ireland was deprived of their basic human rights. However, Northern Ireland (Executive Formation etc) Act, 2019 gives House of Commons the power to legislate for marriage equality by January 2020, paving way for the same-sex couples to wed from 14th February. Under this law, gay couples need to express their intention to marry 28 days before the proposed day of marriage. So one can now expect that the first gay wedding in Northern Ireland would be held in Valentine’s week.
THE WAY AHEAD
This move of the British Parliament has been applauded by Human Rights Group all over the world. It is because now the LGBT Community of Northern Ireland will observe the same rights that the so-called “straight couples” enjoyed there. Further women in Northern Ireland were subjected to harsh anti-abortion laws. Now they have a choice whether they want to have a child or not. The Conservative Society of Northern Ireland denied the LGBT community and women their basic rights for long. The British Parliament has corrected the wrong, which the Northern Irish society inflicted upon this very class of people.
Individuals should be given a choice to live the life in the manner they want to live provided it doesn’t affect the society in large [Negative Manner]. Restrictions should be there only if required for public good. Unnecessary restriction is an attack on human autonomy which should not be accepted in any modern liberal democracy.
The article has been written by Raj Krishna and Alivya Sahay
This article was first published in the Blog namely The Criminal Law Blog