Oct 16 - GSD Calls On Government To Withdraw Draft Legislation On Abortion
The GSD is calling on the Government to withdraw its draft legislation on abortion. The party accuses the Government of attempting to “ram” this proposal through and says it will vote against it in its current form.
A detailed statement follows: “The people of Gibraltar should have the right to choose whether radical changes to the law on abortion should be made. But this should only happen after a full and honest debate. The legislation should not be rammed through.
“The Government’s Command Paper on changes to the law on abortion is a politically dishonest presentation of its proposals. It says it wants to do one thing in its Command Paper but then the draft legislation actually proposes something quite different.
“If the Government seeks to present the draft legislation currently annexed to the Command Paper as a Bill to Parliament the GSD will be voting against that legislation.
“In the title to the Command Paper the Government is clearly suggesting that it is being forced to legislate in the way it proposes because it is “required by the jurisprudence of the Supreme Court of the United Kingdom.” It also asserts in the accompanying narrative that the proposed legislation is “to ensure that Gibraltar law is compliant with the European Convention [on Human Rights] and the Gibraltar constitution...” In his interview on GBC on 28 September 2018 the Chief Minister repeated the same point.
“The clear inference that the Government want the public to draw is that it is reluctantly proceeding and then only to legislate “in certain limited cases” which were the subject of a recent Northern Irish appeal to the Supreme Court. Those limited cases where the UK Supreme Court considered abortions should be provided for in Northern Ireland law were in cases of rape, incest and fatal foetal abnormality.
“In fact what the Government is proposing goes well beyond those limited cases. In fact the Government is proposing to introduce the English law on abortion through the back door with a different threshold of either 10, 12 or 14 weeks. The draft that the Government proposes is almost word for word the same as the English Act. It is well known that the English law on abortion, in effect, has resulted in abortion on demand being available in the UK if a pregnancy is under the statutory threshold of 24 weeks. As 90% of abortions in UK are carried out before 13 weeks allowing abortions in Gibraltar before 12 or 14 weeks will largely deliver what is available in England.
“Contrary to the Government’s presentation of what its objective is the law it proposes is the introduction of abortion on demand and not just in limited cases. It has made no serious attempt at drafting a law to cater for clear, narrow and limited exceptions. There is nothing in constitutional law that requires Gibraltar to introduce a law modelled on the English law on abortion. The GSD cannot go along with such a brazen misrepresentation of the position.”
GSD Leader, Keith Azopardi said: “If the draft legislation catered only for the narrow and limited exceptions that were the subject of the recent Northern Irish case then the GSD Parliamentary team, in acknowledgement that this is constitutionally necessary, would support the introduction of such limited exceptions. But the proposed legislation does nothing of the kind. It goes well beyond this, without proper consideration, debate or consultation and without an electoral mandate. If society wishes to express the choice to change this law it should be done clearly and following a wider and more honest debate.”
A statement continued: “The legislation even envisages that it will be possible to have abortions under Gibraltar law in the case of non- fatal disabilities – in cases of “seriously disabled” unborn children. Again this is beyond the limited cases envisaged by the recent UK Supreme Court decision. In that case the majority of the Court observed that in cases of serious foetal abnormality: “I see the position as different. The foetus has the potential to develop into a child though it will have to cope with a mental and/or physical disability... a disabled child should be treated as having exactly the same worth in human terms as a non-disabled child”2 and “many children born with disabilities, even grave disabilities, lead happy fulfilled lives. In many instances they enrich and bring joy to their families and those who come in contact with them...the difficulty in devising a confident and reliable definition of serious malformation is a potent factor against the finding of [constitutional] incompatibility.”
“Changes to the law on abortion require very careful planning and the fullest debate. There are various competing rights and interests of a number of living beings at stake – most importantly of the mother and of the unborn child. If the role of the State is to protect the weakest in society it is important to recognize that the unborn child is the weakest and most vulnerable in this difficult exercise. We also recognize the special position of the mother in this situation and the need to have special regard to her interests, rights and welfare. It is necessary to properly balance all those rights if the law is to be fair and constitutionally compliant. The law cannot be designed through one perspective only or with an unfair imbalance of those competing rights. We recognize this is a difficult balancing exercise. All lives matter in the balance of that equation.
“In the recent Northern Irish case the UK Supreme Court recognized that a society can through legislation pursue the legitimate aim of protecting the life, health and welfare of unborn children as well as pregnant women. Gibraltar, as a society, has a legally recognized wide margin of appreciation in striking this balance. We have in Gibraltar traditionally specially protected the unborn child. If that is to change or be modified because there is a need to ensure that the law remains constitutionally compliant or because our society wants to make different choices there needs to be a full, proper, informed and honest debate and no misrepresentation of what is intended or the careless or hasty drafting of laws. There are many complex individual situations that need catering for and as such it is important to take advice and the utmost care in drafting.
“There has been no proper and extended debate on this issue or how the balance should be struck. Instead the Government suddenly announced in summer it would publish a Command Paper and now wishes to introduce the English law on abortion in all but name. Neither the Government nor the Opposition have an electoral mandate to introduce these changes. Nor has the public been asked seriously and honestly to address its mind in a comprehensive and considered way to the issues.
“This is too serious an issue to be dealt with in this way. If the Government is serious about the stated objective of legislating only in limited cases then instead of ramming this legislation through it would reflect further and draft a much narrower law. If necessary a Select Committee of Parliament should be convened to look at proposals, take evidence and come up with recommendations which could include whether it is appropriate to put some questions to a referendum. Alternatively the Government should conduct a proper consultation process that explains honestly to people what it seeks to do. If it is in fact intent on promoting a liberal law of abortion on demand it should have the courage of its convictions to say that this is what it wants and then defend its position. If that is what the Government wishes to do then that question should be put to a referendum.
“There are many people who have strongly held and divergent views on this subject. It is an issue that sometimes divides friends and families. There are, as one would expect with an issue like this, different views also in the GSD Executive. This debate cannot be reduced to a few simplistic labels or headlines. There are agonising moral choices here that we do not underestimate. If there are hard choices to be made there should first be a full and honest debate and then a carefully crafted question centred around what the Government propose in draft s163A(1)(a)4 of the draft Bill should be put to a referendum. In that exercise of democratic legitimacy people could then freely choose which option they prefer. The other aspects of the Bill are simply too widely drawn to properly address the limited exceptions identified by the UK Supreme Court only.
“What the Government should not do is misrepresent a position to Parliament and the people. In a recent case in the Court of Appeal the Chief Minister was criticized by the Court because he did not properly explain the motivations or objective of legislation and in effect misled Parliament when presenting a law on landlord and tenant reform. This is a much worse example of misrepresentation where the Chief Minister is saying that the object of the proposals is one thing but the content says something quite different. It is completely unacceptable that a law affecting fundamental rights should be introduced in this manner and following a brazen misrepresentation of the position.
“For all those reasons the GSD call on Government to reflect and withdraw its intended draft legislation. If the Government seeks to ram this through in this way the GSD will vote against it.”
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