HEAL UoS

Posts Tagged ‘law making’

Three reasons against ‘gender’ abortion

In 2015, Abortion, Reproduction on February 11, 2015 at 8:28 am

Late last month several academics and medical professionals – including our own Prof. Roger Ingham – wrote an open letter published in The Telegraph opposing an amendment to the Serious Crime Bill 2014-15 that would result in the criminalisation of abortion on the basis of sex-selection, i.e., as a specific criminal offence. This amendment was tabled by Fiona Bruce MP, following her earlier Private Members’ Bill, the Abortion (Sex-Selection) Bill 2014-15 (which has since been withdrawn). Three key reasons were given against ‘gender abortion’, as outlined in the full text of the letter:

SIR – A proposed amendment to the Serious Crime Bill would make abortion on grounds of sex selection a specific criminal offence (“Gender abortion: it’s time for urgent action”).

Those pushing for this amendment claim abortions are being performed on women coerced into having the procedure, but any doctor in Britain performing an abortion on a woman against her will would already be committing a crime.

We have three main concerns about the proposed amendment. First, it would undermine the professional integrity of those who work in an already overstretched abortion service, as it suggests that they need to be stopped from doing something that constitutes a form of violence and abuse and thus need to be prevented from harming women. This is a serious claim.

Secondly, it risks encouraging doctors to enact some form of ethnic profiling that would, for example, require service providers to question Asian women specifically regarding their reasons for requesting abortion.

Thirdly, it seeks to construe abortion as an offence against “the unborn child”, specifically “the girl”. This is an attempt to secure a legal definition of a pregnancy that recognises the “rights of the unborn” – independent of the pregnant woman – and thus erodes women’s reproductive rights. MPs should seriously consider if they want to take that step.

Subsequent letters (in opposition) have been published in The Telegraph. Whilst, on the face of it, the ‘criminalisation’ of abortion on the basis of gender may appear attractive, it is already subject to the relevant legislative and regulatory frameworks in this area, and it is therefore difficult to see why further criminalisation (as it were) – through the creation of a specific offence – is either a necessary or useful addition to the statute book. The next step for the Bill is the HC Report stage on 23 February 2015.

Advertisements

World first – UK Govt to back mitochondrial donation/replacement

In 2013, Genetics, Reproduction on June 28, 2013 at 7:50 am

The news this morning is again covering the mitochondrial donation/replacement debates, after Professor Dame Sally Davies, the Chief Medical Officer, announced yesterday that draft regulations will be published later in 2013 for public consultation, with the intention that the final version of the proposed regulations will be debated in Parliament in 2014.

These developments have been the subject of a number of consultations in the UK in recent years. The Government announcement focuses – understandably – on the HFEA’s consultations in 2011, on the safety and efficacy of the procedures, and in 2012, the public dialogue on the support or concerns held regarding the use of such procedures for ‘treatment cycles’ in humans (as opposed to research only, where the resulting embryos cannot be developed beyond 14 days due to restrictions on embryo research). However, the Human Genetics Commission first reported its conclusions in 2010 (HGC, since closed under the Arms’ Length Bodies Review of quangos); and in June 2012 the Nuffield Council on Bioethics published its report following public consultation.

In a shameless plug, in a recently published article Jones and
Holme consider some of the issues raised by mitochondrial donation/replacement. See further Jones and Holme,’Relatively (im) material: mtDNA and genetic relatedness in law and policy’, Life Sciences, Society and Policy 2013, 9:4, open access link: http://www.lsspjournal.com/content/pdf/2195-7819-9-4.pdf (alternatively, try http://www.lsspjournal.com/content/9/1/4).

Choice at the end of life?

In 2012, Death and dying, Meetings on November 20, 2012 at 3:34 pm

On 23 October 2012 HEAL members met to discuss the All Party Parliamentary Group on Choice at the End of Life/Dignity in Dying consultation. This lively and informative discussion was followed up yesterday with an impromptu ‘meeting’ to finalise our response prior to submission. Sarah Wootton and Heidi Alexander made clear in their joint Foreword the purpose of the consultation, thus:

[Their]Our consultation seeks the input of experts, stakeholders and the public on how the proposals would work in practice and what would constitute adequate safeguards. The Bill is a draft and will be reviewed and revised in light of the responses we receive to this consultation. The APPG on Choice at the End of Life and Dignity in Dying are committed to promoting greater patient choice at the end of life, particularly over where, when and how one dies. We want to work with others to ensure not only that patients at the end of life have choice and control, but also, crucially, to ensure that the safeguards work well in practice.

HEAL has responded following our discussions – as one might expect there was some agreement with the proposals, and other areas raised greater concerns. Our full response can be accessed here (scroll down to p27).

‘All right thinking people?’: Hidden law making and faith

In 2012, Reproduction, Testing project on October 1, 2012 at 11:40 am

Sarah Catt’s case has attracted huge media interest, following her eight-year imprisonment for taking Misoprostol to bring about a miscarriage a week before full-term. She will be in cusody for four years and on licence for a further four years. See, for example, coverage in The Telegraph, the Guardian –  and again – and the latest related story was in the Sunday Times with pharmacists allegedly selling Misoprostol over the counter. There are numerous blog posts, eg Barbara Hewson’s Spiked post in which she argues against any conviction, and Karen Gardiner’s post on the importance of women’s access to services; and – in the interests of balance – also coverage in the Catholic Herald, where there was a call for the judge’s sentiments to be extended to all foetuses and not only ‘healthy’ ones (c/f s.1(1)(d) Abortion Act 1967).

What does this have to do with hidden law-making?

In his sentencing remarks Mr Justice Cooke commented:

[15]. There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners. What you have done is to rob an apparently healthy child en ventre sa mere, vulnerable and defenceless, of the life which he was about to commence. You are not charged with murder and I would be wrong to treat it as such as matter of law. …

[16]. In English Law, none of those offences could be committed in respect of an unborn child, but the gravamen of this offence is that, at whatever stage life can be said to begin, the child in the womb here was so near to birth that in my judgement all right thinking people would consider this offence more serious than manslaughter or any offence on the calendar other than murder.

The tenor of his comments raised a few eyebrows, and media reporters quickly uncovered Justice Cooke’s strong links with the Lawyers Christian Fellowship – a group which has previously campaigned to change abortion law (at the time of writing none of their public policy material was available on their website, www.lawcf.org). Writing for the Guardian, Amanda Bancroft posited the question thus: ‘When one reads the remarks of the judge knowing his belief system, one can only ask: did the judge view this case only on the context of the crime she actually committed, or also in the context of a crime against a god which may not be hers?’  Interesting to note some of the ‘behind the scenes’ influences in the administration of justice.

HEAL Workshop 2012: Hidden Lawmakers in Health Care Law

In 2012, Meetings, Testing project on September 17, 2012 at 5:00 am

Today and tomorrow (17-18 Sept) we are hosting the second HEAL workshop on Hidden Lawmakers in Health Care Law. Previous posts on this research project can be found here and here.

Health Care Law is a relatively new legal discipline that until recently has been developed significantly through litigation. In recent years it has become apparent that the process by which cases come to be litigated may be less haphazard than at first appears. We are seeking to instigate discussion and further investigation of the role of such ‘test’ cases in developing the substance of Health Care Law.

Drawing on contributions to a two day seminar in 2011, funded by the Modern Law Review, a number of different categories of hidden lawmakers have been identified. This seminar seeks to take that work further in relation to a category of hidden lawmakers that emerged from the seminar and related discussions as requiring further study and consideration. It concerns those who intervene in matters that have come before the courts, to seek to influence the outcomes of the cases. It will bring together a group of invited participants including academics, clinical and legal practitioners, members of interest groups, and participants in influential cases to discuss and debate key aspects of the litigation process, and provide a sounding board for further exploration. The seminar will involve presentations by key participants combined with round table debates and discussions, both formal and informal, amongst the delegates.

Speakers include: Ann Furedi, BPAS; Josephine Quintavalle, CORE; David Lock, QC, No5 Chambers; Prof Rachael Mulheron, Queen Mary, University of London; Prof Laurence Lustgarten, Visiting Fellow, ELAC, University of Oxford and Prof Jonathan Montgomery, University of Southampton. Further details can be found here.

 

HIDDEN LAW-MAKERS Law School Seminar

In 2011, Testing project on November 15, 2011 at 5:55 pm

In a seminar on 2 November 2011 Jonathan Montgomery, Caroline Jones, and Hazel Biggs identified two different aspects of law-making that needed to be examined. The first was descriptive – how law is made. The second was normative – the framework within which to critique law making process & judge the legitimacy of laws. In relation to the first, some law making was highly visible (e.g. by Parliament and the judiciary), some was traceable in documents such as soft law (codes of practice and guidance), but others such as settlement cultures and legal advice that influenced norms of practice was not.

There was an expected process for the production of legislation through green and white papers, possibly supplements be consultations (e.g. in relation to the legislation governing human fertilisation and embryology). A framework for critique has been developed by Caroline Jones to consider the transition between consultations and Government responses. Judicial decision making has been widely studied. The orthodox account of judicial defence to Parliament, as offered by Lord Browne-Wilkinson in the Bland decision, is known to be disingenuous and theories of adjudication (such as those offered by Ronald Dworkin) have tried to provide a normative defence of judges’ work. It is far from clear, however, that they have adequately addressed the how judges choose to take expansive or narrow approaches to the cases before them, leaving some aspects of judicial law-making substantially hidden.

In relation to ‘intermediate authorities’ (such as the GMC or HFEA) entrusted with developing guidance both the description of the ‘law making’ processes and the appropriate normative principles are under-developed. It is even less clear how one should assess the significance of those who bring cases to court with a view to changing the law. Does it matter how personal their interest is? What questions need to be asked about legitimacy or representative authority of litigants in cases such as those brought by the British Pregnancy Advisory Service (BPAS v DH [2011] EWHC 235 (Admin))or Bruno Quintavalle on behalf of the Pro-Life Alliance and Josephine Quintavalle of Comment on Reproductive Ethics where a particular policy stance is being promoted?

This seminar explored some of the learning from our seminar in May 2011, funded by the Modern Law Review, and is part of our work developing a paper for publication.

Life, Death & Law Making

In Death and dying, Testing project on September 22, 2011 at 2:04 pm

Now available on-line before the published issue: Jonathan Montgomery, ‘Guarding the gates of St. Peter: life, death and law-making’, Legal Studies journal.

Abstract   In 2009 the legislature, judges and Director of Public Prosecutions (DPP) each turned their attention to issues around assisted suicide. The legislature decided not to change the law. The judges decided the existing law was insufficiently clear and required the Director to clarify it. The Director flirted with reforming the law, but then drew back from such a legislative role. His published prosecution policy has been considered as a contribution to the regulation of death and dying, and as such has been found wanting. However, considered in the context of the proper roles of Parliament, courts and prosecutors, and seen as an exercise in constitutional restraint, the Director’s approach should be appraised rather differently. From this perspective, the decision of the Judicial Committee of the House of Lords in R (Purdy) v DPP1 raises significant concerns for the legitimacy of decision making in the contested moral issues that arise in healthcare ethics. In our democracy, courts should be wary of usurping legislative authority in areas where the Parliamentary position is clear. They should be reluctant to take sides in the protracted war over access to a ‘good death’.