The majority of the Supreme Court found that the current law in Northern Ireland is disproportionate and incompatible with Article 8 (the right to private and family life) in so far as the 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. However, the majority of the Court concluded that the current law, in the abstract, is not incompatible with Article 3 (freedom from torture, inhumane and degrading treatment). A minority of the Court recognised that there could be individual cases which could meet this threshold for a breach of Article 3.
Notwithstanding the positive findings on the law the majority of the Court held that the Northern Ireland Human Rights Commission (NIHRC) did not have standing to bring these proceedings. While the NIHRC sought to argue it had the power to institute human rights proceedings in the absence of a victim, the majority of the Court disagreed. The majority held there must be a specific and identifiable victim who is or would be the victim of an unlawful act. A minority of the judges disagreed with this assessment and read the law to state that the NIHRC did have competence to bring the case. As a result of the majority’s finding on standing, the Court did not issue a declaration of incompatibility under the Human Rights Act 1998 thereby requiring a change to the legislative framework on abortion in Northern Ireland.
By way of background in 2015 the NIHRC instituted judicial review proceedings on the law on termination of pregnancy as being incompatible with the European Convention on Human Rights (ECHR). The NIHRC argued that the current law subjected women to “inhuman and degrading” treatment, causing “physical and mental torture” in violation of the ECHR. NIHRC argued that both a person’s right to respect for their private and family life, and the prohibition of discrimination were being breached by the current framework. The High Court in Northern Ireland found in favour of the NIHRC and a declaration of incompatibility was issued. This was upheld on appeal by the Court of Appeal. Click here and here for previous commentary on the case in the PILA Bulletin. These findings were appealed to the UK Supreme Court.
A majority of the Supreme Court dismissed the appeal, concluding that NIHRC does not have standing to bring these proceedings. As such, the court does not have jurisdiction to make a declaration of incompatibility in this case. While the court’s dismissal means the Government is not obliged to change Northern Ireland’s current abortion laws, the Supreme Court judges collectively appeared to support the notion that reform is needed. This recent ruling subtly implies that a declaration of incompatibility would have been made if the case had been brought by a woman who became pregnant as a result of rape or incest, or in the case of carrying a foetus with a fatal abnormality.
Click here for a copy of the judgement and press summary.
Click here for press release by the Northern Ireland Human Rights Commission.
Click here and here for further commentary on the case.