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
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
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.”
The legislation even envisages that it will be possible to have abortions under Gibraltar law in the case of nonfatal
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” 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.