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October 2021 Fact Sheet: Human Rights Commission intervene in SPUC Legal challenge to Abortion Services in NI

19 Aug 2021

What is the case about?

The Society for the Protection of Unborn Children (SPUC) Pro-life Limited has launched a legal challenge against the Secretary of State for Northern Ireland. SPUC is arguing that The Abortion (Northern Ireland) Regulations 2021 are unlawful.

It is argued that the 2021 Regulations give the Secretary of State a greater power than he has under Section 26 of the Northern Ireland Act 1998[1] and that the Secretary of State’s powers are not exercisable when legislative and executive powers are being exercised by the NI Assembly. In addition, it is argued that the 2021 Regulations are unlawful in that they permit abortion on the grounds of disability.

SPUC has also launched a further challenge against both the Secretary of State and the Minister for Health in relation to directions issued by the Secretary of State for NI on 22 July 2021 entitled The Abortion Services Directions 2021.

What stage is the case at?

SPUC has been granted leave to bring both judicial review challenges. They will be heard on 4 and 5 October 2021.

Who are the parties in the case?

The applicant in this case is SPUC Pro-life limited. The respondent is the Secretary of State for Northern Ireland in the first challenge and in the second challenge, the respondents are the Secretary of State and Minister for Health. A number of parties have been granted leave to intervene including the Commission who are intervening in both cases and the Equality Commission of Northern Ireland who are intervening in the first challenge.

Why is the Commission intervening?

One of the statutory functions of the Commission is to “review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights”.

The Commission sought leave to intervene in this case, as it is relevant to our ongoing judicial review against the Secretary of State for NI, Department of Health and NI Executive in respect of the failure to fund and commission abortion services in NI. (Further details can be found here)

If the Abortion (Northern Ireland) Regulations 2021 are found to be unlawful in SPUC’s Application, this will have a direct impact on the Commission’s ongoing judicial review and the implementation of the recommendations of the Committee on the Elimination of Discrimination against Women, as legislated for under the Northern Ireland (Executive Formation etc) Act 2019.

What are the human rights arguments?

The decision of women and girls to make choices about continuing their pregnancy falls within the scope of Article 8 of the European Convention on Human Rights, which protects the right to private and family life. Article 8 states:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

The Commission has argued, in our ongoing judicial review, that the failure to commission and fund a service giving effect to the Abortion (NI)(No.2) Regulations 2020 has resulted in women and girls not being able to access lawful abortions, a disproportionate interference with their rights under Article 8 of the European Convention on Human Rights. The Commission is aware that, if the SPUC case is successful, it is likely that abortion provision may be restricted further resulting in continuing violations of the rights of women and girls in NI.

What are the Article 2 Ireland/NI Protocol Issues?

Article 2(1) of the Protocol on Ireland/ Northern Ireland of the European Union Withdrawal Agreement requires the UK government to ensure that there is no diminution of the rights, safeguards and equality of opportunity provisions set out in the Belfast/ Good Friday Agreement as a result of the UK leaving the European Union, including in the area of discrimination.

The Commission has the power to bring, or intervene in, judicial review proceedings in relation to alleged breaches of Article 2(1) of the Protocol. SPUC has argued as part of their case that there has been a breach of Article 2(1) of the Ireland/NI Protocol. SPUC has argued that abortion law insofar as it permits abortion on the grounds of a serious disability equates to a diminution of rights as prohibited by Article 2 of the Protocol. The Commission does not agree with this position. The Commission’s position is that changes to abortion law have not been a result of withdrawal from the EU and that the Good Friday agreement does not provide safeguards in the area of abortion.

What are the wider implications of the case?

If the Abortion (Northern Ireland) Regulations 2021 are found to be unlawful, in whole or in part, they may then need to be amended. As these Regulations may be the means by which abortion provision is implemented, any finding against them would directly impact upon the provision of a funded and commissioned abortion service in NI.

Court details

The case is being heard on 4 and 5 October 2021, before Lord Justice Colton in the High Court in Belfast.

The Commission’s Counsel is Yaaser Vanderman BL of Landmark Chambers.

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