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This International Women’s Day we’re looking at how human rights have helped women and pregnant people in Northern Ireland to better realise their right to health. More broadly we’re also examining the way human rights laws, both international and domestic, can be used to achieve change. This is particularly relevant as the UK Government’s consultation on the Human Rights Act closes today.

The background

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.[1] The story we’re going to recount below is about the fight for abortion access in Northern Ireland. It’s a complex story, with a lot of different elements and people, and the story isn’t finished yet. But the thread that binds it together is the demand for the realisation of human rights.

Sections 58 and 59 of the Offences Against the Person Act 1861 and s.25(1) of the Criminal Justice Act (NI) 1945 criminalised abortion in Northern Ireland in all but very limited circumstances.[2]  The 1967 Abortion Act in Great Britain was never extended to Northern Ireland and so most people in Northern Ireland who were seeking an abortion had to travel to Great Britain or further afield.

Northern Ireland abortion law breaches UN human rights standards

In 2018 the UN Committee on the Elimination of Discrimination against Women (‘the Committee’) released the report into an inquiry they had undertaken into whether the restrictive abortion laws in Northern Ireland amounted to a ‘grave and systematic violation of rights’.

The Committee found the UK responsible for the following

“(a)Grave violations of rights under the Convention, considering that the State party’s criminal law compels women in cases of severe fetal impairment, including fatal fetal abnormality, and victims of rape or incest to carry pregnancies to full term, thereby subjecting them to severe physical and mental anguish, constituting gender-based violence against women;

(b)Systematic violations of rights under the Convention, considering that the State party deliberately criminalizes abortion and pursues a highly restrictive policy on access to abortion, thereby compelling women to carry pregnancies to full term, to travel outside Northern Ireland to undergo legal abortion or to self-administer abortifacients.”[3]

At this point we have a UN Human Rights Committee calling out the UK because law in Northern Ireland was in violation of women’s rights, including the right to health. This was an important vindication of what abortion rights campaigners in Northern Ireland had been reporting for years.

But as mentioned above, the story is complex and the law didn’t change immediately.

Northern Ireland abortion law breaches UK human rights standards

Later in 2018 the Northern Ireland Human Rights Commission (NIHRC) lost a case in the UK Supreme Court over the legality of abortion laws in Northern Ireland (check out our new case summary of the decision). But the case was lost on a technicality about whether the NIHRC was able to bring the case or not. Importantly the majority of judges made it clear that the law as it stood was disproportionate and incompatible with article 8[4] of the European Convention on Human Rights (ECHR) insofar as it prohibits abortion in cases of (a) fatal (as distinct from serious) foetal abnormality (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.[5]

This case is also significant because while most economic, social and cultural rights (like the right to health) are provided for in international law, they are not protected in domestic UK legislation (read more about this here). However, the Human Rights Act, which ‘downloaded’ the ECHR into law in the UK means that people can use civil and political rights, such as the Article 8 right to family and private life, to protect their economic, social and cultural rights, like the right to health.

Change comes

But back to Northern Ireland in 2018.  At this stage a UN Committee and the UK Supreme Court have both called out the laws in Northern Ireland in relation to abortion for being a breach of the human rights of women and pregnant people.

The pressure is mounting on the UK Government, and civil society groups are demonstrating that attitudes in Northern Ireland are shifting and most people now support change.

In the absence of a devolved Executive in Northern Ireland (January 2017 – January 2020), in July 2019 MPs at Westminster voted for an amendment to the NI Executive Formation Bill  to decriminalise abortion in Northern Ireland and to create new laws which implement the recommendations of the UN Committee.

A new legal framework for abortion came into effect in Northern Ireland on 31 March 2019.[6] 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.

More to do

The story isn’t quite finished, as problems still remain in Northern Ireland in relation to the availability of services – particularly for those living in the Western Trust where they must still travel to England.

All the same, the move is a great victory for the rights of women and pregnant people in Northern Ireland. It illustrates both how human rights really can effect legislative change, and also how our Human Rights Act (HRA) can be used to protect the rights of women.

We are opposed to the current UK Government proposals to ‘overhaul’ the HRA , and will continue to fight for it, and the protection of all human rights in the UK. The irony that the current consultation on the HRA closes today, on International Women’s Day, is not lost on us.

Image by Olga Mrozek.

Notes

[1] 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, 23 February 2018, para 54

[2] It was not, for instance, a crime to receive or supply an abortion where it is done in good faith for the purpose of preserving the life of the mother or where the continuance of the pregnancy will make the woman a physical or mental wreck – termed the Bourne exception.

[3] 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, 23 February 2018, para 54

[4] The right to respect for private and family life

[5] In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (NI) [2018] UKSC 27, para 35

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

 

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