The Association of Catholic Lawyers of Ireland were invited to give evidence to the Health Committee at Stormont on the 17th October. Hansard has now published the official report of that session.
The full report can be seen on the Hansard website :
http://www.niassembly.gov.uk/health/2007mandate/moe/2008/081017.htm
Mrs Johanna Higgins (Association of Catholic Lawyers of Ireland):
I am co-founder of the Association of Catholic Lawyers of Ireland, and all of our work is consecrated to the Immaculate Heart of Mary. I am a barrister at the Inn of Court of Northern Ireland, the King’s Inns in Dublin and the Inner Temple in London. I have been in practice at the bar for 17 years. My experience includes five years as a senior public prosecution lawyer and two years specialising in judicial review as a community care lawyer. In 2000, I acted for a pro-life intervener in the High Court judicial review that instigated the issue of these guidelines. I also published briefing papers on the draft guidelines in 2007 and on the consultation paper in 2008.
The issue before the Department is to explain the criminal law on abortion. Abortion is a matter of justice and criminal law and it should not be regarded as a medical issue per se. In this case, it is a matter of justice for the unborn child that the law should be stated correctly. The criminal law on abortion exists entirely to protect the unborn child; that is its one purpose. However, the departmental guidelines do not include a single mention of the victim, which, in this area of law, is the unborn child. That is a gross omission, to say the least.
If an attempt were made to define the criminal law on murder or domestic violence without mentioning the victim, there would, rightly, be a massive outcry. Therefore, we find it extremely disturbing that an attempt has been made to define the law on abortion without any reference to the victim. It is ludicrous: the unborn child must be treated as a proper person and be placed at the centre of the guidelines.
The law on abortion comes from the Criminal Justice Act ( Northern Ireland) 1945, which is a fairly recent piece of legislation. The Offences Against the Person Act 1861, in which illegal abortion is enshrined, also deals with murder, manslaughter, infanticide, assault, battery and all other offences against the person. To treat the law on abortion, which is part of that statute, with contempt by not properly outlining it and giving it due consideration undermines not only the law on abortion but the entire statute. It also makes a mockery of the criminal law and courts of this country.
If we do not ensure that the matter is dealt with properly, it will be only a matter of time before other laws are being undermined, and those who are currently protected under the Offences Against the Person Act 1861, such as the young and vulnerable and you and I, will also become victims of the liberalisation and undermining of the law.
I examined the numerous problems with the guidelines in my lengthy briefing paper to the Committee. However, they all stem from the initial problem that there has been a fundamental misstatement of the criminal law. The law has been presented wrongly; it has been presented upside down and back to front. It has not been dealt with in the way that a normal illustration of a criminal legal situation would be presented.
With that in mind, and to back up my submission, I contacted Professor John Keown, who is an international lawyer with expertise in the law of medical ethics. He was awarded a doctorate from the University of Oxford where, as a senior lecturer, he lectured on medical ethics. In fact, his book ‘Abortion, Doctors and the Law’ is one of the leading books, if not the leading book, on the history of abortion law in England. I asked him to study the Department’s guidelines and to provide a statement on his view of the way that the law had been addressed. He states:
“The opening paragraph of the Guidance … is seriously misleading”.
I will not read out his entire statement, because members have been given copies. However, he continues:
“The starting point of the Guidance should have been a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage, and an offence to supply means knowing that they are to be used with that intent. The Guidance should then have recalled the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule had been clearly stated should the scope of the exception have been considered. Similarly, the Guidance should accurately have stated the law against child destruction and its central purpose, the protection of a child ‘capable of being born alive’, and then have noted the narrowness of the exception to this prohibition: such a child may be intentionally destroyed for the purpose only of saving the life of the mother. (It is remarkable that paragraph 2.6 of the Guidance, which purports to quote the statute, misstates this exception by omitting the important word ‘only’.)”
Professor Keown continues on that topic, and members should have a copy of his letter in their information packs.
The Department has overstated the defence by putting it first in the guidance. Indeed, the Department has put the body of the law in a footnote, which is incredible, because to do so completely undermines the law and suggests to people that they should treat it as inconsequential — who reads footnotes? The Department has placed the exception — the defence — in bold at the top of the guidance, and has actually misstated it. That is advertising the defence, and will, inevitably, lead to more people committing the crime that the law intends to prevent from happening.
Another important legal error has been made in the guidelines in that they do not distinguish between the different defences to illegal abortion and child destruction. Illegal abortion is regulated by the Offences Against the Person Act 1861. That offence covers any child from conception to full term. The law on child destruction has a doubling-over effect and covers a child from when it is capable of being born alive to its birth. Those are two separate offences, and the defence to illegal abortion is wider than the defence to child destruction. However, the guidelines state:
“In other words the legal justification for carrying out a termination of pregnancy in Northern Ireland is exactly the same both before and after the time at which a child is capable of being born alive. This follows from the Bourne decision and its application to the Northern Ireland legislation.”
That is not true: it is legally incorrect; and Professor Keown agrees. If that statement is sent to doctors, it will lead to the direct, illegal abortion in Northern Ireland of children who are capable of being born alive. The exception provided in the statutory prohibition of child destruction — a child that is capable of being born alive — is strict and is applicable only when the mother’s life is at risk. The Bourne case does not apply to child destruction directly — a myth that is being perpetuated. A judge may take it into account, but it does not apply to that offence. It must be interpreted strictly.
The offence of illegal abortion is not as strict. A future court may follow the Bourne case, which extended defences to include therapeutic health reasons. However, that future court may choose not do so. However, the guidelines state, as a fact, that that will be a defence in all cases. That is erroneous — it should say “may” be a defence. The Department has stated the defences too widely, and, in the case of a child capable of being born alive, the guidelines are wrong. They quote directly from Lord Chief Justice, Sir Brian Kerr’s initial High Court judgement. However, that judgement was overturned by the Court of Appeal.
Therefore, it a mystery to me and to other lawyers why the Department insists on using a High Court case that is not legally binding and that has been overturned by a subsequent Court of Appeal ruling, especially given that the judge in the Court of Appeal case disagreed specifically with the statement of law made in the High Court. I have pointed that fact out to the Department on at least two occasions, and it does not have an explanation. However, Lord Lester, who represented the Family Planning Association (FPA) in the High Court, stated in court that Sir Brian Kerr’s acceptance of the law would be a good foundation for guidelines. The Health Promotion Agency — a body funded by the Department of Health, Social Services and Public Safety — subsequently issued a fact sheet that was written by the FPA, which was supposed to illustrate the law in Northern Ireland. However, that document contains the same errors, and offers the same explanation of the law, as the departmental guidance.
It appears that the departmental guidance follows the explanation of the law provided in the FPA document rather than an explanation based on independent legal advice. That is a worrying matter, of which I ask the Committee to take serious account.
Since last year, the Department has changed four points in the guidance document according to issues that I had raised about the previous document. During a meeting on 29 September 2008 with me, the Department also agreed to change a further point. The document had misstated the law on criminal child destruction, and the Department agreed that a full statement should be provided.
I also asked the senior medical officer, who was present at that meeting, whether it is ever necessary, on medical grounds, to inject potassium chloride into the heart of an unborn baby and deliver that child dead: the answer was no. Therefore, neither in legal terms, nor in medical terms can it be said that it is appropriate, necessary or legal to directly abort a viable child in this jurisdiction. It can never be said to be correct practice to directly abort a viable child in this country unless it is a medical necessity. The legal defence to child destruction is very narrow and applies only when it is necessary to save the life of the mother.
There is growing evidence that illegal abortion and child destruction have been happening in Northern Ireland. We have collected a number of pieces of information and material about that, especially on the issue of foetal abnormality. I have asked the Department to provide information on where the bodies of the unborn children who were aborted in this country over the last number of years have been disposed. The Department said that it will assist me with that.
It is important to note that the Corporate Manslaughter and Corporate Homicide Act 2007 is now in place in Northern Ireland. Under that legislation, any Department or employer can be said to be involved in the unlawful death of any person who is protected by the criminal law. As a result of their action, inaction or negligence, they can also be held criminally liable for any such death. I also made that point clear to the Department on 29 September.
The guidelines must be rewritten with reference to criminal lawyers and the unborn child. The guidelines must also make a clear statement about the two very serious offences, and that in both cases the maximum sentence is life imprisonment. In the past year, a woman who lived in England was convicted of the destruction of her unborn child and was successfully prosecuted in a court in Manchester. That was a very serious situation, and such things will happen if the guidelines go ahead.
The Association of Catholic Lawyers of Ireland is examining a judicial review based on the opening lines of the guidance, which I have already said are completely erroneous. We intend to pursue that option if the guidelines proceed in their present format. That is an overview of the main points included in my briefing paper.
