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

What is the case about?

The Society for the Protection of Unborn Children (SPUC) Pro-life Limited have appealed a decision by the NI High Court to dismiss its legal challenge against the Secretary of State for Northern Ireland. SPUC have argued that The Abortion (Northern Ireland) Regulations 2021 are unlawful.

SPUC have 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, that the 2021 Regulations are unlawful in that they permit abortion on the grounds of disability.

SPUC had 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 was granted leave to bring both judicial review challenges. The substantive High Court hearing took place on 4 and 5 October 2021. Judgment was delivered on 8 February 2022. The application was dismissed on all grounds. SPUC appealed this decision to the NI Court of Appeal at a hearing that took place on 23 and 24 of January 2023. The appeal judgment was delivered on 22 May 2023 dismissing all of SPUC’s grounds of appeal.

The full High Court judgment can be found here.

The full Court of Appeal judgment can be found here.

The Lady Chief Justice Keegan acknowledged submissions made both by the NI Human Rights Commission and by the Equality Commission in assisting the Court with their decision.

SPUC sought permission to appeal their case to the UK Supreme Court but this was refused by the UK Supreme Court in November 2023.

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. The Commission has been granted leave to intervene in the case, along with the Equality Commission for Northern Ireland.

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 previous 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 were to be found to be unlawful by the courts , this would have a direct impact on 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 previous 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 of the Windsor Framework Issues?

Article 2(1) of the Windsor Framework (formerly the Protocol on Ireland/ Northern Ireland) to 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 Windsor Framework. SPUC has argued as part of their case that there has been a breach of Article 2(1) of the Windsor Framework. 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 Windsor Framework. 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 Belfast (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 were to be 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 was heard on 23 & 24 January 2023, before Lady Chief Justice Keegan, Lord Justice Humphreys and Lord Justice Treacy in the Court of Appeal in Belfast and their judgment was delivered by Lady Chief Justice Keegan on 22 May 2023.

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