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In the aftermath of the US Supreme Court ruling in Dobbs v Jackson Women’s Health Organization attention has turned to whether abortion is adequately protected in the UK from the winds of political change. Given that in England, Scotland, and Wales abortion is provided for by ordinary Act of Parliament, and in Northern Ireland by Regulation, an orthodox view of the constitution indicates that it is not. In response to Dobbs it has been suggested that the pending Bill of Rights should be amended to provide for a right to abortion. That proposal was swiftly rejected by Dominic Raab on the basis that abortion is settled in UK law – a view that is somewhat contradicted by ongoing difficulties in respect of abortion in Northern Ireland.
The aim of this post is to argue that abortion rights are not adequately protected and that the Bill of Rights compounds their precarity in five critical respects. First, it encourages an originalist, textual and common law approach to rights; the detrimental impact of this type of approach has already been seen in the United States. Second, it prohibits our domestic courts from developing rights beyond the protection accorded by Strasbourg. Third, it weakens the link between ECHR jurisprudence and domestic rights such that even if the Strasbourg Court elects to develop greater protection there is no guarantee that our courts will follow suit. Fourth, the Bill recalibrates the balance struck between freedom of expression and privacy in a manner that may preclude the use of safe spaces to restrict the activities of pro-life protestors in the vicinity of abortion clinics. Fifth, by prohibiting our courts from recognising new positive obligations it forecloses the prospect of developing obligations to provide abortion services. This is significant because, as is evident in Northern Ireland, it is not enough for the state to decriminalise abortion it also needs to guarantee access to abortion services. For all these reasons Raab is wrong to be sanguine about abortion and the Bill of Rights.
Raab’s Red Herring
When Raab was asked whether the Bill should be amended his response was as follows:
the position on abortion is settled in UK law and it is decided by hon. Members across the House. It is an issue of conscience, and I do not think there is a strong case for change. With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.
There are obvious reasons why he wishes to resist being drawn into debate about abortion rights, but his suggestion that enacting a right would place the UK in the same position as the US is entirely misleading. In the US abortion was, prior to Dobbs, located by the Supreme Court in rights connected to liberty and privacy; it was not a right to abortion enacted by Parliament. Moreover, contrary to what Raab proclaims, refusing to include a right will not preclude litigation. All that will happen is that courts will be faced with claims based upon those rights that are in the Bill, namely the Convention rights. This is not conjecture as abortion is already the subject of litigation with both pro-choice and pro-life applicants relying upon Convention rights. For example, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27 it was argued that restrictions on abortion in Northern Ireland violated articles 3, 8 and 14 ECHR. Whilst in R(Crowter) v SSHSC [2021] EWHC 2536 (Admin) it was argued that permitting abortion where there is a substantial risk that a child would be born ‘seriously handicapped’ (the terminology used in the Abortion Act 1967), is incompatible with the Convention. In other cases pro-life advocates argue that restricting their activities in the vicinity of abortion clinics interferes with article 9, 10 and 11 ECHR, Dulgheriu & Orthova v Ealing LBC [2019] EWCA Civ 1490. Indeed, this is the subject of a case pending before the Supreme Court.
Are Abortion Rights Adequately Protected?
Once we have rejected Raab’s litigation red herring the important questions are therefore (i) whether the Convention rights provide adequate protection and (ii) whether the Bill of Rights affects this.
In terms of the Convention, it is evident that it currently affords ‘very little legal protection beyond that afforded to women in the US post-Dobbs’. Indeed, thus far Strasbourg has declined to identify minimum standards for states and has only found violations on the basis that applicants were denied access to treatment that they were entitled to under domestic law or that they were unable to access mechanisms to establish their rights under domestic law (Tysiac v Poland, A, B C v Ireland and RR v Poland). Our own domestic courts have indicated a willingness to go further as in Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27 a majority of the judges considered that a prohibition on abortion in the case of fatal foetal abnormality, rape, and incest violated Article 8 ECHR. A minority of the judges would have also held that this was incompatible with Article 3 ECHR. The question now is whether Strasbourg will adopt the same approach. As Szopa and Fletcher noted in their recent post Strasbourg has the opportunity to address this in a series of pending cases concerning Poland. We must therefore wait to see what happens in this respect. In the meantime, however, the problem that we face is that even if Strasbourg develops abortion rights the Bill of Rights may jeopardise the prospect of this permeating domestic law. There are five clauses that are problematic in this respect.
The Problems Arising from the Bill of Rights
1. Clause 3(2)(a) – Textual and Originalist Interpretation of Rights
The first is clause 3(2)(a) which directs our courts to have particular regard to the text of the Convention in interpreting the rights. It also provides that they may have regard to the preparatory work of the Convention. As there is no reference to abortion in the text of any of the Convention rights or in the travaux préparatoires then clause 3(2)(a) could be detrimental to the recognition of abortion rights. In this regard we should also note that the Government’s Report which accompanies the Bill indicates at [24] that the aim of the Bill is to emphasise the importance of the common law and to ‘ensure the UK’s distinct context and traditions are recognised and reflected’. In this respect it is worth emphasising that in Dobbs, abortion rights were rejected on the basis that they had no ‘grounding in the constitutional text, history or precedent’ and in coming to this conclusion the majority relied heavily upon the common law, and what they deemed ‘eminent common law authorities (Blackstone, Coke, Hale, and the like)’.
2. Clause 3(3)(a) – Closing the door on developing domestic protection – NIHRC
Clause 3(3)(a) prohibits the courts from expanding rights beyond the protection accorded by Strasbourg. The only exception to this is where the court has no reasonable doubt that Strasbourg would adopt the same interpretation if the case were before it. This is significant, because, as noted above, the Supreme Court indicated a willingness to go further than Strasbourg in Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27. As matters stand clause 3(3)(a) would now preclude our Supreme Court from going further, indeed in this respect it should be recalled that in NIHRC Lord Reed was firmly of the opinion that the Strasbourg case law did not warrant extending rights. Consequently, the decisions in the pending Poland cases are critical. If Strasbourg expands the Convention rights, then this could open the door to greater domestic protection (albeit that this is not guaranteed as discussed below in relation to clause 3(3)(b)). However, if Strasbourg elects to persist with a deferential approach, then this will not only limit international protection it will also preclude our domestic courts from developing rights.
3. Clause 3(3)(b) – Severance from Strasbourg Jurisprudence
This brings us to clause 3(3) which states that the courts ‘may adopt an interpretation of the right that diverges from Strasbourg jurisprudence’. The impact of this is that even if Strasbourg develops greater protection there is no guarantee that domestic courts will follow suit. In this respect it is important to emphasise that whilst the Supreme Court in NIHRC was willing to extend protection there is no guarantee that a future bench will be equally minded when operating under the Bill of Rights. Indeed, in this regard it is important to note that in NIHRC it was Lord Kerr and Lady Hale who were leading the way with Lord Wilson, Lord Mance, and Lady Black concurring with some aspects, however, none of those judges remain on the bench. Conversely, Lord Reed held that no rights were violated. It is true that he came to that conclusion by following Strasbourg, such that any change in Strasbourg jurisprudence would be significant, but it was also evident that he was opposed to judicial development of rights. This was evident in his declaration that in ‘a democracy on the British model, the natural place for [abortion rights] to be resolved is in the legislature’ at [336]. In fact, he complimented Strasbourg for its restraint in this context, its ‘awareness of the sensitivity of this topic and the extent to which it is better suited to determination by national authorities’ at [345]. Of course, Lord Reed is now President of the Supreme Court and the tone of that Court is, as Conor Gearty has highlighted, ‘markedly different’ from the ‘court under Hale’s leadership’.
4. Clause 4 – Freedom of Expression
Another provision that warrants closer attention is clause 4 which provides that a court must give great weight to the importance of protecting freedom of speech. This is problematic for the protection of safe spaces around abortion clinics. In this regard it will be recalled that the pro-life claimants in Dulgheriu v London Borough Ealing [2019] EWCA Civ 1490 argued that s.72(1) Anti-Social Behaviour, Crime and Policing Act 2014 required local authorities to have particular regard to freedom of expression in determining whether to issue a Public Service Protection Order that limited their activities in the vicinity of an abortion clinic. That argument was rejected by the Court of Appeal on the basis that ‘articles 8, 9, 10 and 11 are all of equal importance in the sense that none has precedence over the other’ and that the requirement ‘to have particular regard’ to article 10 did not add anything of substance to the analysis at [90].
Yet the question that now arises is whether the courts will regard the requirement under clause 4(1) ‘to give great weight’ as akin to the direction in the 2014 Act to ‘have particular regard to the rights’. It seems likely that it may require the courts to recalibrate their approach. This could jeopardise the protection of safe spaces around abortion clinics, which may in turn inhibit those who need an abortion from accessing abortion clinics.
5. Clause 5(1) – Access to Services – Limitation on Positive Obligations
Finally, it important to note that clause 5(1) precludes the courts from recognising new positive obligations. The loss of the opportunity to develop positive obligations is particularly problematic when seen in the context of Northern Ireland where abortion has been decriminalised, but there is a failure to commission services. Indeed, the important role of positive obligations in this context was recognised by Lord Kerr in NIHRC when he stated that
Obligations owed by the state under article 3 extend to protecting individuals from the risk of a breach of its provisions as well as a positive duty to provide appropriate healthcare treatment where the denial of that treatment would expose victims to ill-treatment contrary to article 3…(para 152).
Conclusion
Some may be tempted to dismiss the prospect of regression on abortion in the UK as unlikely. This is probably Raab’s view. For others the political developments of the last few years have left us less assured in the permanency of things that were previously taken for granted. We can hope that such things will not come to pass, but that is wishful thinking, not rights. What is evident is that if the political tide turns then abortion is not protected and the Bill of Rights curtails the prospect of the courts developing protection. This should ring alarm bells. Moreover, it is important to emphasise whether or not the UK is likely to turn into Gilead is not the benchmark for whether we need to be concerned about the impact of the Bill of Rights. As evident in the experiences of Northern Ireland, fully developed abortion rights are not limited to the question of whether a state permits or criminalises abortion, but rather whether it has obligations to ensure that there is adequate access to abortion services. Raab is therefore wrong to suggest that the position is settled, rights to abortion are far from settled in this jurisdiction, and his Bill curtails the prospect of developing such rights.
I am grateful to Stevie Martin for characteristically generous and astute comments on an earlier draft, to the excellent editorial work of Alison Young and Michael Gordon, and to all who contributed to the Centre for Public Law response to the Government’s Consultation on the Human Rights Act.
Dr Kirsty Hughes is Associate Professor in Public Law and Human Rights, Faculty of Law, University of Cambridge, Director of the Centre for Public Law (Cambridge), Fellow of Clare College, Joint General Editor of the European Human Rights Law Review and Academic Associate of Blackstone Chambers
(Suggested citation: K. Hughes, ‘The Bill of Rights and the Precarity of Abortion Rights’, U.K. Const. L. Blog (11th July 2022) (available at https://ukconstitutionallaw.org/))
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