Tagged / law

The Conversation article: UK abortion laws are more precarious than they seem – replacing the Human Rights Act could unsettle them further

BU Lecturers in Law Jamie Fletcher and Karolina Szopa write for The Conversation about the legal status of abortion in the UK, following the overturning of Roe v Wade in the US…

UK abortion laws are more precarious than they seem – replacing the Human Rights Act could unsettle them further

zjtmath / Shutterstock

Jamie Fletcher, Bournemouth University and Karolina Szopa, Bournemouth University

The state of abortion laws in the US has many in the UK wondering about reproductive rights in their own country. While abortion is largely accessible in the UK, its legal status is more precarious than many understand. Whichever government is in power next, it has the ability to either solidify abortion access or put it further into jeopardy. With this in mind, the next prime minister should reconsider plans to replace the Human Rights Act 1998 with the proposed bill of rights.

In June 2022, Justice Secretary Dominic Raab introduced the bill of rights bill, which, if passed, will repeal and replace the Human Rights Act. When asked about inserting a right to abortion in the bill of rights, Raab said this wasn’t necessary, claiming that abortion is “settled in UK law”. Without the Human Rights Act, however, abortion in the UK is far from settled.

This is because no law created by parliament is ever truly settled. This is a principle of the British constitution known as parliamentary sovereignty. Parliament is free to pass laws on any issue without being limited by an existing law created by a previous parliament, or any court. This differs from the US, where courts can strike down laws if they conflict with the constitution.

Applied to abortion, this means parliament can legislate any new abortion laws it desires. No court of law or authority could prevent parliament from arriving at a new legal position that would restrict or prohibit abortion access.

The legal status of abortion access in the UK, through the Abortion Act 1967, is more precarious than common understanding. Having an abortion is still a criminal act. A 19th-century law, which remains in place, states that any woman who intends to cause her own miscarriage commits a criminal offence that can result in life imprisonment.

The Abortion Act merely creates a limited exception when two doctors agree that the abortion is necessary and approve the procedure within 24 weeks of conception. At least two women in England and Wales are currently being prosecuted for illegally procuring abortions.

Separate legislation, passed in 2019, removes criminality for abortion in Northern Ireland. Still, due to the principle of parliamentary sovereignty, this legislation lacks any degree of permanency. The right to access abortion in Northern Ireland remains as fragile as in the rest of the UK.

The law granting a right to abortion access in Northern Ireland is re-voted on every year in the House of Commons. Votes in 2020, 2021 and 2022 show that around 25% of MPs are consistently opposed to abortion rights. If political winds change in the future, this percentage might increase and bring forward the true extent of this fragility.

Abortion and the Human Rights Act

Raab’s claim that abortion law is settled might have been based on European human rights law, which applies in the UK through the Human Rights Act. However, this would be incorrect – European human rights law, so far, has offered only minimal protection to abortion access. The right to private and family life enshrined in Article 8 of the European Convention on Human Rights (ECHR) protects personal autonomy and bodily integrity.

Because the issue of abortion raises difficult moral questions over when life begins, the European Court of Human Rights has left it to each country to determine its own laws on abortion. This approach has been applied to other issues including same-sex marriage. Baroness Hale, during her time on the supreme court, remarked that the European court has given countries an “unusual” amount of leeway to determine their abortion laws.

The European court has made it clear that where a pregnancy would directly endanger a pregnant person’s life, their safety must take priority over the life of the foetus. Nonetheless, the court has yet to intervene in countries with restrictive abortion laws, such as Malta, Liechtenstein or Poland.

Domestic law and the power of the courts

Domestic human rights law, on the other hand, offers some support to Raab’s claim of abortion being settled. In a 2018 ruling, the UK supreme court held that domestic laws restricting access to abortions in cases of rape, incest or fatal foetal abnormality would be interpreted as being incompatible with the ECHR right to private and family life.

This interpretation of the right to privacy effectively limited Parliament’s ability to pass more restrictive abortion laws. But it was only possible due to the Human Rights Act, which grants UK judges interpretive powers when it comes to human rights law.

Dominic Raab mid-speech in front of a UK flag and an EU flag
Justice Secretary Dominic Raab is spearheading the plan to replace the Human Rights Act.
Alexandros Michailidis / Shutterstock

The new bill of rights purports to enhance UK courts’ ability to make judgments like the one described above, by declaring that European Court of Human Rights case law will no longer be “part of domestic law”.

But what it actually does is restrict the courts’ powers when it comes to the European Convention on Human Rights. The bill only permits the creation or expansion of new rights when domestic courts view it as being “beyond reasonable doubt” that the European Court will change its previous decided position on the issue.

There is presently not enough evidence to suggest “beyond reasonable doubt” that the European court will change its current legal framework on abortion. This would mean that under the bill of rights, a future UK supreme court would be prevented from reading Article 8 as requiring access to abortion in certain cases, as it did in 2018. Domestic courts would no longer be able to protect access to abortion in the UK and would return the issue almost entirely to parliament and political winds.

While there might be some support for the claim that abortion is sufficiently protected in law, this will be greatly undermined if the Human Rights Act is repealed. The next prime minister could commit to including a provision within the Bill of Rights specifically aimed at protecting abortion rights – or even better, reverse course entirely and keep the Human Rights Act in place.The Conversation

Jamie Fletcher, Lecturer in Law, Bournemouth University and Karolina Szopa, Lecturer in Law, Bournemouth University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Sign up Sign up: British Academy ECR Network Southwest Hub

Are you an ECR who wants to start 2022 with an awesome opportunity??

Please sign up to the newly established British Academy ECR Network Southwest Hub. Led by the GW4 Alliance, in partnership with the British Academy and nine Southwest universities (including Bournemouth University). This is building an inclusive and researcher-led network to support the needs and interests of researchers in the humanities and social sciences – including subjects from Social Psychology and Anthropology to Law and History.
There will be events and activities both in the region and at the Academy that will provide an opportunity for capacity building, knowledge exchange and networking. Researcher interests will inform the activities and opportunities the network will offer.
For those that join, you will be invited to attend an Early-Career Researcher Network Welcome session, where you will learn more about the Network, meet and engage with other Early-Career Researchers and address any questions or concerns you have about the Network.
The Welcome session will take place on Thursday 20th January 2022 between 14:00 – 15:00pm on Zoom.
The Network is being piloted across the Southwest and is for researchers who identify as early-career. Although the Network does not have a strict definition of an ECR, it is anticipated you will be within 10 years of your PhD experience but recognise this will not be the case for all, given career breaks for MAT, PAT, sick leave, and other exceptional circumstances.
Further information can be found via the British Academy Early Career Researcher Network webpage.
To sign-up follow this link to register your interest to join the Network: https://www.smartsurvey.co.uk/s/BAECRN/

The Cambodian Experience

Dr Melanie Klinkner shares her experience of undertaking research in Cambodia…

Perhaps it is due to a genetic predisposition to embrace the continental Kaffeehaus tradition of discussing matters for hours on end or simply because of an affinity to the Socratic dialogue, interviewing has been a key component of my research. It would be wrong to say that I am not nervous before each interview or don’t question my methodological approach, but, in general, interviews have been exciting, worthwhile and a superb way to network. I keep being amazed by the generosity of participants in giving up their time, going to the trouble of meeting me, sharing their experience and expertise, sending relevant information or answering follow-up questions.

The experiences from a fieldtrip to Cambodia epitomises the fun of qualitative research for me. On arrival at the Extraordinary Chambers in the Courts of Cambodia outside the capital Phnom Penh, I was met by the then head of PR who had not only organised an interview schedule with judges, prosecutors and defence lawyers but also offered me a tour of the (then not quite complete) building. Sure, this might have been part of their general public relations efforts, but it was me who benefitted from meeting these individuals. I was the lucky one sitting in the office of a Cambodian participant, with a translator present, conducting an interview whilst feeling strangely observed by the statue of an elusively smiling Khmer head on the top of a cupboard. I was similarly impressed with one interviewee who was on a business trip to Bangkok whilst I visited Phnom Penh, but was still happy to meet me in a Hotel lobby in the centre of Bangkok an hour after my plane from Phnom Penh touched down on Suvanarbhumi Airport. It would also be amiss to forget the other impressions gathered on this trip. The taxi driver who took me to the Extraordinary Chambers each day and dropped me at the Killing fields on the outskirts of Phnom Penh shared his experiences from the Khmer Rouge area. A young TukTuk driver and English language teacher practiced his English by telling me about the education system. Whilst not explicitly relevant to the research – implicitly this information is priceless.

It is with some sadness that I read of the difficulties the Extraordinary Chambers are facing with allegations of corruption, lack of funding, political meddling, the age and death of defendants hampering its progress. Surely Cambodia and the Cambodian people deserve better. Perhaps one day (when the children are older) I will be able to return to Cambodia for an interdisciplinary study to further our understanding as to the forensic, legal but also cultural significance the displayed human remains have within Cambodian Society – they are a fascinating substrate for research. For now, I have one small regret: I should have bought a sculpture of a Khmer head with its elusive smile to put on my book shelve at home.

International Day of the Disappeared 2013

Dr Melanie Klinkner studies the use of forensic science for investigation and prosecution of atrocities such as war crimes, crimes against humanity and genocide. Here she talks about the International Day of the Disappeared.

Today serves as a reminder of the number of people around the world who are missing as a result of armed conflicts. We remember the families who face a daily struggle to understand what has happened to their loved one.

Dr Melanie KlinknerEnforced disappearances have been and continue to be used by oppressive regimes in an attempt to dispose of political opponents secretly and to instil fear in the population. Article 2 of the Convention for the Protection for all Persons from Enforced Disappearance (2006) defines disappearances as ‘the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law’.

The Red Cross work tirelessly to reunite families where possible and organisations such as the International Commission on Missing Person support identification of bodies.

In the aftermath of conflict and gross human rights violations, there is an overwhelming need of the families is to know the truth about the fate of their loved ones and, where the worst has happened, to receive their human remains as an absolute proof of death and to facilitate burial and commemoration rituals.

This need is mirrored in international human rights and international humanitarian law development, which has advanced the recognition of victim rights of national or international crimes and human rights abuses. The Basic Principles encompass the need for victims and their families to know the truth about what happened to their loved ones and demands that the bodies of those disappeared are recovered, identified and buried.

Melanie works alongside Ian Hanson and Paul Cheetham in the School of Applied Sciences, who have developed standard operating procedures for forensic investigation of mass graves. These have been used internationally in judicial and humanitarian contexts, bringing those responsible for atrocity crimes to justice and providing much needed answers to families.

Read more about the Red Cross

Dr Melanie Klinkner’s profile

International Commission on Missing Persons

CIPPM Spring Lecture Series 2013

The annual series of the Centre for Intellectual Property Policy and Management’s (CIPPM) http://www.cippm.org.uk/ Spring Lectures starts on Thursday 21 February 2013 at 6 pm.

Professor Hector MacQueen, Professor of Private Law at the University of Edinburgh will deliver the first lecture, titled “Ae fond kiss: A Private Matter?” on Thursday 21 February 2013.

Professor MacQueen has written extensively on Intellectual Property law and is author, co-author and editor of a number of books on Intellectual Property law. He was the Dean of the Faculty of Law, University of Edinburgh (1999-2003) and Director of the AHRC Centre for Studies in Intellectual Property and Technology Law (SCRIPT) (2002-2007). In 2010 Professor MacQueen took up an appointment as Scottish Law Commissioner (2010-2014).

CIPPM Spring Lectures take place at 18:00, in the Executive Business Centre, close to the Bournemouth Travel Interchange (89 Holdenhurst Road, BH8 8EB). The lectures are free to attend, but places are limited, and admission to the building closes at 18:15. If you wish to reserve a place, please contact Mandy Lenihan at ALenihan@bournemouth.ac.uk

For further information on forthcoming CIPPM Spring Lectures and for booking information see http://business.bournemouth.ac.uk/news/2013/jan/ne001-cippm-lectures-2013.html

Business Law Seminars

You are warmly invited to attend a series of business law seminars being organised by a group of academics in the Department of Law researching in Business Regulation & Institutions, Trade & Entrepreneurship (cBRITE), who will be working closely with the Centre for Entrepreneurship and Economic Growth:

Stephen Copp “The codification of directors’ duties: raising or lowering standards?” 11.00 – 12.00pm Wednesday 5th December 2012 in PG142

Alison Cronin “White Collar Crime – Why the light touch?  The case for a robust criminal law to reinforce ethical conduct in the commercial world” 1.00 – 2.00pm Wednesday 12th December 2012 in PG146

Sarah McKeown “A Common European Sales Law: Facilitating Cross-Border Trade for SMEs” 11.00 – 12.00pm Wednesday 19th December 2012 in PG142

For further details contact Dr Stephen Copp, Associate Professor, Department of Law, The Business School at scopp@bournemouth.ac.uk