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In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (NI) [2018] UKSC 27

By Robyn Taylor

Plain English overview

In 2018, the Northern Ireland Commission (NIHRC) challenged the law in Northern Ireland that criminalised abortion in all but very limited circumstances. It argued in the Supreme Court that the law was incompatible with the European Convention on Human Rights (EHRC) because it did not provide an exception to the prohibition on abortion in cases of serious malformation of the unborn foetus or pregnancy as a result of rape or incest.

On 7 June 2018, the NIHRC lost because of a technical issue about whether or not it could bring such a case.  But a majority of the judges considered had the case been properly brought, they would have found the abortion law in Northern Ireland was incompatible article 8 ECHR (right to family and private life).

Following this ruling, changes to the law on abortion in Northern Ireland were introduced by the UK Government through Section 9 of the Northern Ireland (Executive Formation etc) Act 2019The changes to abortion law in Northern Ireland made on 22 October 2019 include:

  • sections 58 and 59 of the Offences Against the Person Act 1861in Northern Ireland (to have an abortion or to assist in causing an abortion) were repealed.
  • a moratorium on abortion-related criminal prosecutions came into effect.
  • a duty was placed on the UK Government to introduce a new legal framework for abortion in Northern Ireland. The new framework was to be compliant with a recent United Nations report on the situation in Northern Ireland by the Committee on the Elimination of Discrimination against Women (CEDAW) The report is available here.

A new legal framework for abortion came into effect on 31 March 2020.[1] It permits terminations in all circumstances in the first 12 weeks of pregnancy, and after 12 weeks where there is an immediate necessity to save a life or to prevent a grave permanent injury to the physical or mental health of a pregnant woman, or in cases of severe foetal impairment or fatal foetal abnormality. Although problems remain in Northern Ireland in relation to the availability of services.

Case summary

Sections 58 and 59 of the Offences Against the Person Act 1861 (the 1861 Act) and s.25(1) of the Criminal Justice Act (NI) 1945 (the 1945 Act) criminalised abortion in Northern Ireland in all but very limited circumstances. As a result, pregnant people in Northern Ireland seeking to terminate their pregnancy were forced to travel to England, Scotland or further afield to obtain abortion services.

The abortion law, which could carry a maximum sentence of life imprisonment, was said by the United Nations Committee on the Elimination of Discrimination against Women, to have a “chilling effect” upon clinicians, who were reluctant to discuss the options for fear of being thought to “aid, abet, counsel or procure” an abortion which might be unlawful. It also discouraged people who had abortions, lawful or otherwise, from seeking proper after-care, because of section 5 of the Criminal Law Act (NI) 1967 which set out that anyone who knows or believes that an offence has been committed and has information which might be of material assistance in securing the apprehension, prosecution, or conviction of the person who committed it, commits an offence if they fail without reasonable excuse to give that information to the police within a reasonable time. [9]

The NIHRC challenged the compatibility of the law with article 8 (the right of everyone to respect for their private and family life), article 3 (the prohibition of torture and of inhumane or degrading treatment) and article 14 (the prohibition of discrimination) of the EHRC insofar as it criminalised abortion in cases of (a) serious malformation of the foetus (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. The NIHRC sought declarations to that effect under s.6 and s.4 of the Human Rights Act 1998 (HRA 1998).

Held: Appeal dismissed by majority.

In a sign of the complexity and difficulties in the case, the court was unable to identify a single lead judgment which represented the majority view on all issues.

Lady Hale commented that:

“This has proved an unusually difficult case to resolve. Not only are the substantive issues, relating to the compatibility of abortion law in Northern Ireland with articles 3 and 8 of the European Convention on Human Rights (the ECHR or the Convention), of considerable depth and sensitivity; but there is also the procedural issue raised by the Attorney General for Northern Ireland, who challenges the standing of the Northern Ireland Human Rights Commission (NIHRC) to bring these proceedings. The court is divided on both questions, but in different ways.”[1]

Ultimately, the majority held that the NIHRC did not have standing to bring the appeal.

The NIHRC relied on s.69(5)(b) of the NIA 1998 for its power to bring the proceedings rather than identifying any unlawful act or potential victim [73]. However, the majority held that the case constituted ‘human rights proceedings’ and therefore the NIHRC was subject to restrictions[2] which meant that though it did not need to be a victim, there must be an actual or potential victim of an unlawful act to which the proceedings relate [54 and 56].

The Court’s decision on standing meant that there was no possibility of making a decision of incompatibility under s.4 HRA 1998.  However, the court still went on to consider compatibility with the majority starting from a position that the law as it stood was an interference with the right of pregnant people to respect for their private lives guaranteed by article 8(1). The question to be answered was whether this was justified under article 8(2) [9, 104, 263 and 265], inter alia, that it struck a fair balance between the rights of pregnant people and the life, health, and welfare of the foetus [21, 117 and 287]. The majority concluded that it did not in the following circumstances:

  • Fatal foetal abnormality: the majority concluded that there was no community interest in obliging a pregnant person to carry a pregnancy to term where the foetus suffers from a fatal abnormality that will cause death either in the womb or very shortly after delivery [28, 133, 326 and 371].
  • Rape: the majority concluded the law was disproportionate in cases of rape and that the rights of pregnant people should prevail over the community interest in the continuance of the pregnancy. Lord Mance considered that causing a person to become pregnant and bear a child against their will is an invasion of the fundamental right to bodily integrity.
  • Incest: a blanket prohibition on incest was not justified. Lord Mance (with whom Lady Hale agreed) pointed to the fact that incest typically involves abusive relationships with young or younger female relatives.

In coming to these conclusions the court was required to interpret the guarantees contained in the ECHR in light of international treaties to which the UK is a party, in this case the United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) and the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD), as well as other materials. In particular, the court had reference to the CEDAW Committee’s Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. This report set out a number of important findings and recommendations including on the difficulties pregnant people in Northern Ireland face in travelling to England and Scotland for abortion. The Committee drew the overarching conclusion that articles 12 and 16, clarified by GR Nos 24 and 28, read with articles 2 and 5 of CEDAW, requires State parties to legalise abortion, at least in cases of rape, incest, threats to the life and/or health (physical or mental) of the woman, or severe foetal impairment.

Notwithstanding the CEDAW committees’ position, the court considered that the prohibition on abortion in the case of serious foetal abnormality, whereby a child is born with a disability, could not be impugned as disproportionate and incompatible with article 8. This was on the basis that a disabled child should be treated as having equal worth in human terms as a non-disabled child [31, 133 and 331].

The majority of the court decided it would not have made a declaration that the law of Northern Ireland is incompatible with article 3 ECHR [34 and 100]. On the basis that article 3 is an absolute right and must reach a ‘minimum level of severity’ in order to contravene it. While the court accepted that some women and girls in the three situations to which the case related would reach this threshold, not all women denied an abortion would [82] and whether there has been any violation also depends on the facts of the individual case [34, 95, 103, 354 and 367].

Having come to its finding on article 8, the court declined to consider whether there had been a breach of article 14, to the extent that the law as it stood discriminated against women and girls.

What is particularly interesting about this case is that although it failed on a technical issue (whether the NIHRC had standing), the court still clarified that in their view the laws at the time criminalising abortion Northern Ireland in circumstances of fatal foetal abnormality, rape and incest amounted to a breach of the human rights of pregnant people and this spurred the UK Government to take action to reform these laws – and in doing so to better realise the rights to health for women and pregnant people in the UK.[3]

Check out our blog about exactly how this case, the CEDAW report, and years of tireless activism helped to better realise the right to health in the UK.

Image by Carol Gaessler

Notes

[1] The Abortion (Northern Ireland) Regulations 2020 remade on 12 May 2020 as The Abortion (Northern Ireland) (No. 2) Regulations 2020

[2] s.71(2B) Northern Ireland Act 1998

[3] The right to health under Article 12 of the United Nations Convention on the Elimination of All forms of Discrimination against Women (CEDAW) covers sexual and reproductive health, including access to abortion.

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