11 June 2018 by Jake Richards

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

On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.

The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.

In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.

Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.

 

The Background

The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.

These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:

The prohibition of abortion in cases of

• Serious malformation of the foetus;
• Pregnancy as a result of rape; and/or
• Pregnancy as a result of incest

was argued to be incompatible with

• Article 3 (the prohibition of torture and of inhuman or degrading treatment);
• Article 8 (the right of everyone to respect for their private and family life); and/or
• Article 14 (the prohibition of discrimination)

In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:

• Fatal foetal abnormality
• Rape up to the date when the foetus is capable of being born alive
• Incest up to the date when the foetus is capable of being born alive

The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.

The NIHRC appealed to the Supreme Court in London.

 

The Supreme Court decision

Standing

A prior issue – and one of critical importance to the success of the claim before the court – was whether the NIHRC had standing to bring the proceedings.

Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd-Jones agreed) considered that the NIHRC did not have standing to bring these proceedings. Under the relevant legislation giving power to the NIHRC to bring proceedings, although it was not necessary that it a victim of an unlawful act, there must nevertheless be an actual or potential victim of an unlawful act to which the proceedings relate. It was held that there had been no such actual or potential victim in this case.

Essentially, the majority of the court held that the NIHRC could not bring proceedings where the only complaint is that primary legislation is incompatible with the ECHR. The court also considered the purpose of the original legislation, determining that Parliament did not provide for NIHRC to have capacity to pursue what would amount to unconstrained right to bring abstract proceedings regarding the interpretation or compatibility of primary legislation with Convention rights.

Although Lady Hale, Lord Kerr and Lord Wilson disagreed, the majority view meant that the claim brought was destined to fail.

 

Substantive challenge

However, the decision on standing did not prevent the court setting out its views on whether the law, as it stands, is compatible with human rights.

On the substantive compatibility issues, a majority of Lady Hale, Lord Mance, Lord Kerr and Lord Wilson held that the current law is incompatible with the right to respect for private and family life (Article 8) insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality.

Lady Black agreed with that majority in part, but only insofar as the existing law prohibits abortion in fatal foetal abnormality.

Lord Kerr and Lord Wilson also held the law to be incompatible with the right not to be subjected to inhuman or degrading treatment, as guaranteed by Article 3. However, Lady Hale did not feel the need to comment on Article 3, having found the law incompatible with Article 8.

 

The judgments

With such a divided court, on many different issues and in many different ways, there was no single lead judgment which could represent the majority view on all issues. In these circumstances, the court printed judgments in order of seniority – a practice of the old House of Lords judgments.

It was common ground that the current law is an interference with the right of pregnant women and girls to respect for their private lives. The question, therefore, was whether the interference is justified “in accordance with the law and is necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others”.

1. Lady Hale pointed out that there was no evidence that the profound moral views of the people of Northern Ireland are against allowing abortion in the circumstances stated. Indeed, she stated that opinion polls show a high degree of support for a change in the law.

She concluded that

these are all, therefore, situations in which the autonomy rights of the pregnant woman should prevail over the community’s interest in the continuation of the pregnancy. (para 27)

She emphasised that a community also has an interest in protecting the life, health and wellbeing of the pregnant woman as well.

2. Lord Mance concluded, “without real hesitation at the end of the day”, that the current state of the law is incompatible with Article 8. He quoted a poll commissioned by Amnesty International in 2014 that found that 69%, 68% and 60% of those polled considered that abortion should be permitted in cases of rape, incest and fatal foetal abnormality. This was, he felt, a highly relevant consideration considering the test was whether the interference was necessary in a democratic society. The moral views of the nation was a factor that required consideration.

He also considered the case in the context of the decision in R (Nicklinson) v Ministry of Justice [2015] AC 657, discussed on this blog here. This was a case of a man with locked-in syndrome who wished to commit suicide, but would have been prosecuted along with any person who helped him. He claimed this was an unlawful interference with his human rights. The Supreme Court, although expressing sympathy to the position, held that it would be inappropriate to make a declaration of incompatibility due to the constitutional sensitivity of such a declaration, instead urging Parliament to review the position.

The Department of Justice and the Attorney General for Northern Ireland argued that a similar approach should be taken here as the Northern Ireland Assembly could review the law. Lord Mance dismissed this argument, stating that

there is no assurance as to when or even that the Northern Ireland Assembly will resume its activity or address an issue. [para 117]

Further, the issue in Nicklinson was decided against a backdrop of uncertainty and ambiguity across Europe on the issue of assisted suicide. Lord Mance pointed out in contrast that Northern Ireland is almost alone in Europe in the strictness of its current law on abortion.

3. Lord Kerr, with whom Lord Wilson agreed, concurred with Lord Mance and Lady Hale on Article 8. In a highly emotive judgment, he went on to state that the current law was also an unlawful interference with Article 3:

[The girls and women of Northern Ireland] are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality, or have been the victims of rape or incest, they are condemned, because legislation in another era has decreed it, to endue untold suffering and desolation. What is that, if it is not humiliation and debasement? [para 261]

4. Lord Reed, with whom Lord Lloyd-Jones and Lady Black agreed, would not make a declaration of incompatibility in circumstances when pregnancy is the result of rape or incest. In these cases, women remained free to travel to obtain abortions on the NHS in England and Scotland. They are provided with information and support from medical professionals, and they should receive whatever care they may require in Northern Ireland if they return from undertaking a termination abroad. The current position did not, Lord Reed thought, warrant a bold declaration that the legislation is inherently incompatible with Article 8.

However, despite this, he was clear that there were individual cases that the court had become aware of that would almost certainly demonstrate violations of Article 8 – but principally in the lack of support and advice for pregnant women.

He also stated that the democratic consideration of the issue had been derailed by the breakdown of devolved government in January 2017 and that further time was required. He considered that there is every reason to fear that violations of the ECHR will occur if the arrangements in place in Northern Ireland remain as they are.

 

Conclusion

In a complicated judgment on various issues, despite much disagreement, the court has sent a strong signal that as the law stands it is incompatible with human rights law. Even those that argued that a declaration was not appropriate identified instances of breaches and argued the matter required urgent democratic consideration.

Jake Richards is a barrister at 9 Gough Square.