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Devolving Abortion Law

Document Cited authorities 11 Cited in Related
Vincent
Author
Date01 September 2016
DOI10.3366/elr.2016.0375
Published date01 September 2016
Pages399-404
<p>The power to legislate in relation to abortion was devolved to the Scottish Parliament under <span class="vid_spn">section 53 of the Scotland Act 2016</span> (“SA 2016”), which deletes section J1 from part 2 of <span class="vid_spn">Schedule 5 to the Scotland Act 1998</span> (“SA 1998”). This article briefly describes the existing legal context against which the transfer of power takes place, discusses some of the issues associated with exercising the power, and reflects upon assurances that there are no plans to change the law in this area.</p> BACKGROUND

During the Smith Commission negotiations, the proposed devolution of abortion enjoyed support from the Green Party, the Scottish National Party, the Conservatives, and the Liberal Democrats.1 Labour negotiators strongly opposed it, however, and reportedly made the reservation of abortion a “red line issue” – a non-negotiable condition of their agreement to any package.2 The case for devolving abortion was quite compelling: the relevant portfolios, health and criminal justice, were already within the jurisdiction of the Scottish Parliament, and the parliament already had power over other highly controversial matters (for example, it has debated assisted suicide several times in recent years). The Labour Party's opposition was apparently motivated by fear that the democratic process in Scotland may yield a less liberal approach to abortion than that currently allowed for by the Abortion Act 1967 (“the 1967 Act”), which applies throughout Scotland, England, and Wales.3 Because of Labour opposition, the Smith Commission's final report4 did not recommend the devolution of abortion, and it was not included in the initial version of the Scotland Bill. Nevertheless, the Scottish Secretary later announced to the Scottish Affairs Committee at Westminster that the UK government had decided to amend the Bill to include abortion, on the basis that there was “no convincing constitutional reason” for continuing to reserve it.5 The Scottish Government, while welcoming the decision, immediately announced that it had no plans to change the law in the area, no doubt keen to avoid the unedifying and divisive experience of a public abortion debate in Scotland.6

 THE EXISTING LAW

In Scotland, as in England and Wales, abortion is governed by the 1967 Act as amended by the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”). Section 1(1) of the 1967 Act provides that:

a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

 The selective decriminalisation effected by the 1967 Act notwithstanding, abortion remains a prima facie crime throughout Great Britain. Any induced abortion that did not comply with the conditions set out in the 1967 Act would be dealt with under the pre-1967 law, which is different...

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