Expert Group Report Findings

18/12/2012

The Expert Group established by the Government to determine the best course of action to respond to the ABC versus Ireland case of the European Court of Human Rights.

For information purposes, I have published their findings here.

Introduction
The terms of reference of the Expert Group required it to recommend a series of options on how to implement the judgment in A, B and C v Ireland of the European Court of Human Rights. During its deliberations, the Expert Group weighed advantages and disadvantages of each option, with a view to achieve legal clarity within a practicable system and the over-riding need for speedy action.

Implementation Options :
Non-Statutory

  • Guidelines

 

Statutory

  • Regulations – Regulate the provision of lawful termination of pregnancy by way of primary legislation to empower the Minister for Health to regulate the area by statutory instrument.
  • Legislation Alone – Regulate the provision of lawful termination of pregnancy by way of primary legislation.
  • Legislation plus Regulations – Regulate the provision of lawful termination of pregnancy by way of primary legislation, with certain matters left to the Minister for Health to regulate by way of secondary legislation.

 
1. Guidelines
Consideration was given to the possibility of implementing the judgment without recourse to legislation, by the publication of guidelines or some other form of non-statutory protocol. If that were possible, it would meet the need for speedy action emphasised in the terms of reference in contrast to the legislative options, as the drafting and passing of legislation is often a lengthy process. Guidelines are often necessary in a healthcare setting where it is important to ensure consistency in the delivery of medical treatment. It is thus likely that a guidance document will be required in any scheme to facilitate understanding of the law by medical personnel, other health care professionals and lay people and to illustrate how to access treatment.

However, an argument can be made that guidelines in isolation do not fulfil all the requirements set by the European Court of Human Rights judgment for a number of reasons. Guidelines are, by their nature, non binding and do not have force of law. The Courts, both domestic and international, have made it clear that in a democracy, measures which affect rights must have a secure legal basis. In A, B and C v Ireland, the Court considered that neither the medical consultation nor litigation options constituted effective and accessible procedures which allowed a woman to establish her right to a lawful abortion in Ireland.

Advantages
• Guidance documents can be used in an effective way to communicate, to implement and to explain existing law and the delivery of a service.
• A guidance document/non-statutory scheme can be flexible, detailed and can be more easily reviewed and amended, if and when necessary.
• The time frame for this option might be relatively more expeditious than the statutory options, assuming agreement can be reached with medical professionals, professional regulatory bodies and hospitals/clinics.
• Administrative guidance is likely to be required even if it is decided to proceed by way of legislation; thus there are advantages to proceeding to consider the contents of guidance as soon aspossible.

Disadvantages
Guidance would not have force of law and could be subject to legal challenge.
• The legal uncertainty arising from the 1861 Act would not be resolved and its ‘chilling effect’ on women and medical practitioners would not be removed.
• As compliance with the protocol would be voluntary, it would be vulnerable to inadequate or non implementation.
• Sanctions for lack of implementation would not be governed by the State but would come under the remit of professional bodies.
• There could be difficulties ensuring timely decision-making and review processes, and there would be no statutory method of enforcing the scheme.
• As compliance with the guidance would be voluntary, agreement would have to be secured as to its terms. The process of seeking agreement could be just as time consuming
as the legislative process.
The fact that the measures would not have binding force is likely to mean that this option would not satisfy the Committee of Ministers of the Council of Europe.

2. Regulations
A second approach would be for the Minister for Health to issue regulations. However, the Minister could not issue regulations without being given the power to do so by enabling legislation. The Oireachtas would provide the principles and policies, and the enacting primary legislation would give the Minister the powers required to issue such regulations. This option would allow for the specific details of the scheme to be amended over time as needed; however, the enabling legislation would still require full scrutiny of the Oireachtas, and, for that reason, it is not likely to prove a speedier or superior solution than the other legislative options.

Advantages
• The Oireachtas would have the opportunity to discuss and vote on the principles and policies provided for in the primary legislation.
• These regulations could be amended relatively easily in order to address any concerns arising from their implementation, changes in clinical practice and scientific advances.
• Access to lawful termination of pregnancy in Ireland would be put on a statutory, and therefore, more secure footing.
• Provided the legislation contained adequate principles and policies to support the regulations, the ‘chilling effect’ of the 1861 Act could be removed, and legal protection from prosecution could
be attained by compliance with the proposed regulations.
• This approach is likely to satisfy the requirements of the implementation process of the judgment in A, B and C v Ireland.

Disadvantage
Primary legislation would still need to be enacted by the Oireachtas

3. Legislation Alone
Having examined the proposals put forward in previous documents, one of the options considered is original primary legislation or amendment of an existing Act to regulate access to lawful termination of pregnancy in Ireland in accordance with the X Case, the requirements of the European Convention on Human Rights and the judgment in A, B and C v Ireland. In this option, all the
details on the assessment of entitlement to a lawful termination of pregnancy would be enacted in legislation, giving the Oireachtas the power to scrutinise all its provisions, and leaving no significant matters to be dealt with by the regulations.

Advantages
• This option would clearly provide for the general prohibition of abortion while at the same time enacting in legislation the exceptions that might arise in lawful circumstances, i.e. when
there is a risk to the life of the pregnant woman that can only be averted by a termination of pregnancy.
• The Oireachtas would have the opportunity to discuss and vote on all the relevant details of the proposed legislation.
• Access to lawful termination of pregnancy in Ireland would be put on a statutory, and therefore more secure, footing.
• Such legislation would update the 1861 Act and arguably provide better protection for the unborn than is currently provided by that Act.
• The ‘chilling effect’ of the 1861 Act would be removed and legal protection from prosecution could be attained by compliance with the proposed legislation.
• The role of the Minister would not come under scrutiny in relation to procedural matters which would be in the legislation.
• This approach is likely to satisfy the requirements of the implementation process of the judgment in A, B and C v Ireland.

Disadvantages
• Due to the nature of this legislation, the process of drafting and democratic scrutiny is likely to take a considerable period of time.
Postulating all the details of the assessment and review process in primary legislation might be too rigid an approach. In this case, even minor changes that might arise following
implementation or in light of scientific advances would require full scrutiny and further passage through the Houses of the Oireachtas.

Legislation plus Regulation
Finally, an implementation option that would be constitutionally, legally, and procedurally sound is primary or amending legislation to regulate access to lawful termination of pregnancy in Ireland in accordance with the X Case, the requirements of the European Convention on Human Rights and the judgment in A, B and C v Ireland. This legislation would provide for the drafting of
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. Most aspects of the provision of lawful termination of pregnancy would be set out in primary legislation, with certain operational matters delegated to the Minister to govern
by way of regulations. The advantages of this option are that it fulfils the requirements of the judgment, it provides for appropriate checks and balances between the powers of the legislature and the executive, and would be amenable to changes that might arise out of clinical practice and scientific advances.

Advantages
• The Oireachtas would have the opportunity to discuss and vote on all the relevant details of the proposed legislation.
• Access to lawful termination of pregnancy in Ireland would be put on a statutory, and therefore more secure, footing.
• Such legislation would update the 1861 Act and arguably provide better protection for the unborn than is currently provided by that Act.
• The ‘chilling effect’ of the 1861 Act would be removed and legal protection from prosecution could be attained by compliance with the proposed legislation.
• The role of the Minister would come under less scrutiny in relation to procedural matters as these would be in the legislation.
• The regulations could be amended relatively easily in order to address changes in clinical practice, scientific advances, and any challenges arising from their implementation.
• This approach is likely to satisfy the requirements of the implementation process of the judgment in A, B and C v Ireland.

Disadvantages
• Due to the nature of this legislation, the process of drafting and democratic scrutiny is likely to take a considerable period of time.