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HM Government of Gibraltar announces a referendum on whether to commence the Bill to amend the law relating to termination of pregnancies 528/2019

July 12, 2019

Her Majesty’s Government of Gibraltar wishes to thank the many persons and organisations that took the time to submit their valuable and thoughtful responses to the Bill to amend the Crimes Act.  The Inter-Ministerial Committee on Abortion has now had the opportunity to consider these further submissions from a cross-section of the community and from the various groups and associations that wished to make representations in person.  On this sensitive and significant issue, it was crucial that the Government took the opportunities to further consult as meaningfully and as widely as possible. 

As the community may recall, the process of consultation on abortion was promoted, solely, by the case of the Supreme Court of the United Kingdom on the legality of the law on abortion in Northern Ireland.  In that case, a majority of the court explained that the current law in Northern Ireland is disproportionate and incompatible with Article 8 of the European Convention of Human Rights insofar as that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.  Article 8 of the European Convention is almost identical to Section 7 of the Gibraltar Constitution Order 2006.

The Supreme Court case in respect of the law in Northern Ireland means that Gibraltar must act to ensure the compatibility of Gibraltar’s laws with the European Convention right of respect for privacy and family life and, more directly, our own Constitution.  The Government also notes that the failure to change the law in Northern Ireland has resulted in a vote to do impose direct rule from London in this area of devolution.

The Government is advised that our current law is likely no longer compatible with our Constitution and the Government must take urgent legislative action. 

As a result, the Government will proceed tomorrow (Friday) to debate the Bill to amend the Crimes Act 2011.  The Bill will only come into effect, however, dependent on the result of a referendum to be held on Thursday 19th March 2020.  The GSLP/Liberals commit themselves to honour the results of the referendum should it be returned to government.

Her Majesty’s Government of Gibraltar maintains the view, as previously stated, that our current legislation breaches our Constitution and that we have an obligation not to tolerate a breach of the Constitution and of the European Convention of Human Rights.  There is, however, one important issue that gave the Inter-Ministerial Committee pause for thought, which is that national authorities enjoy a very limited discretion when fulfilling their obligations under the European Convention on Human Rights.  This limited discretion is referred to as a “margin of appreciation”.   and it has been allowed for the protection of morals on the ground that moral concepts vary between countries. Given the passionate and opposite held views on the morality of this subject, the Government is of the view that it can only proceed by posing the question in a referendum as to whether to commence these amendments to the Crimes Act.

Her Majesty’s Government of Gibraltar believes that the margin of appreciation is not enough for Gibraltar to prevent abortions in circumstances of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.  The general position in Europe on the question of abortion would likely place the present circumstances in Gibraltar beyond the margin of appreciation.  The inter-Ministerial Committee, however, cannot be certain of the legal position in the light of the margin of appreciation. 

The Chief Minister, the Hon Fabian Picardo QC, said,

“I would like to thank those who have contributed in any way to our consideration of this, the most difficult of issues and, in particular, I wish to thank the members of the Inter-Ministerial Committee, for all their work. Over the past few months our community has discussed this matter in a responsible and sensitive fashion and everyone has been respectful of the deeply-held views of others.  I sincerely hope that, throughout the months ahead, we are all able to maintain this high standard of debate and this willingness to listen to other people’s ideas.”