Challenge to Termination of Pregnancy Laws at Court of Appeal
The Human Rights Commission’s legal challenge to Northern Ireland’s termination of pregnancy laws will be heard at the Court of Appeal. The Appeal hearing began on Monday 20 June
“It is unfortunate that this case has been brought to Appeal by the Department of Justice and the Attorney General. The Commission won its Judicial Review of Termination of Pregnancy Laws in November 2015 when the High Court found in our favour that our current law is incompatible with human rights.”
The Commission is cross- appealing and will re-introduce all of the original grounds it brought before the High Court. It is calling for the choice of accessing a termination of pregnancy in circumstances of serious malformation of foetus (including fatal foetal abnormality), rape or incest, without being criminalised for doing so, to be made available in Northern Ireland.
Chief Commissioner Les Allamby:
“We are committed to protecting and upholding human rights standards in line with our statutory mandate. Each day that passes is another day in which women and girls face the most difficult of personal circumstances and have their human rights violated. Our local elected representatives need to implement the necessary reforms to comply with human rights standards.”
Please contact Claire Martin on: (028) 9024 3987).
Notes to editors
Please check the court listings for confirmation here.
FACT SHEET ON THE NIHRC CASE
Recent Developments in International Human Rights include:
1. Human Rights Law has developed alongside the Commission’s case on Termination of Pregnancy Laws in N.I. The Commission will update the Court on the following:
The United Nations Committee on the Rights of the Child issued its report on the United Kingdom on 9 June 2016. The Committee has called on the UK Government to:
Decriminalise abortion in Northern Ireland in all circumstances and a review of legislation with a view to ensuring girls’ access to safe abortion and post-abortion care services. Read the UNCRC Concluding Observations here:
Who are the parties in the Appeal?
The Northern Ireland Human Rights Commission, the Department of Justice and the Attorney General.
Though not parties to the appeal, additional written submissions to the court have been made by Amnesty International, Sarah Ewart, the Society for the Protection of the Unborn Child, the Northern Bishops and Precious Life.
In November 2015, the Belfast High Court found in the Commission’s favour ruling that our current law is incompatible with human rights. The Department of Justice and Attorney General are appealing the judgment. The Commission is cross-appealing.
The November 2015 High Court Ruling
The High Court held that Article 8 of the European Convention on Human Rights, the right to family and private life was breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes. The Judgment in this case can be found here.
When did this case begin?
The Commission first initiated its judicial review of the termination of pregnancy laws in 2014.
What were the grounds of the original case?
The Northern Ireland Human Rights Commission asked the Court to declare that the current law, relating to access to termination of pregnancy services for women in cases of serious malformation of the foetus, including fatal foetal abnormality and pregnancy as a result of rape or incest, is incompatible with human rights law and results in a breach of the rights of women and girls seeking a termination of pregnancy in these circumstances.
Termination of Pregnancy in N.I
Termination of pregnancy is currently available in Northern Ireland if it is necessary to preserve the life of a woman; including where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent. The doctor must be of the opinion that the continuation of the pregnancy will be to make the woman a “physical or mental wreck”: R v. Bourne  KB 687, per Macnaghten J at 694. It is unlawful to perform a termination of pregnancy, under section 58 of the Offences against the Person Act 1861, unless on these grounds. The punishment is life imprisonment for anyone who unlawfully performs a termination.
1967 Abortion Act
The Commission is not seeking to introduce the Abortion Act 1967 in Northern Ireland and does not engage this law in this legal challenge. The Commission is seeking a change in the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy in circumstances of serious malformation of the foetus, including fatal foetal abnormality, rape or incest.
1. From November 2013 the Commission had repeatedly advised the Department of Justice (DOJ) that the existing law violates the human rights of women and girls.
2. In October 2014 the Department of Justice published a public consultation on proposals to amend the criminal law on abortion to allow for termination of pregnancy in cases of lethal foetal abnormality and sought views on sexual crime. A summary of responses can be found here:
3. In the Human Rights Commission’s view, the consultation published by the Department did not commit to making the changes that were necessary in law: the consultation addressed cases of lethal foetal abnormality and did not deal with serious malformation of foetus. The consultation sought public opinion on cases of sexual crime including rape and incest without putting forward proposals to change the law.
4. In December 2014 the Northern Ireland Human Rights Commission initiated legal proceedings against the Department of Justice as a last resort.
5. 15-17 June 2015-Human Rights Commission’s Judicial Review of the law on termination of pregnancy was heard at the High Court in Belfast. Judgment was reserved at the close of proceedings on 17 June.
6. 30 November 2015- the Belfast High Court found in the Commission’s favour ruling that our current law is incompatible with human rights.
7. 16 December 2015 -the High Court granted a Declaration of Incompatibility (DOI) under the Human Rights Act. This was based on the law prohibiting termination of pregnancy in the cases of fatal foetal abnormalities and sexual crime being a violation of women’s right to personal autonomy under Article 8 of the European Convention on Human Rights.
Case Facts In forming its view on access to termination of pregnancy services the Commission considered the full range of internationally accepted human rights standards, at that time, including the European Convention on Human Rights, as incorporated by the Human Rights Act 1998 and the treaty obligations of the Council of Europe and the United Nations systems.
The legal case stated that Articles 3, 8 and 14 of the European Convention on Human Rights are directly engaged:
Article 3: Freedom from torture and inhuman and degrading treatment or punishment. Prohibits torture, and inhuman or degrading treatment or punishment. There are no exceptions or limitations on this right.
Article 8: Right to privacy
(1) Everyone has the right 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.
Article 14: Discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
6. The Commission is one of the three ‘A’ status National Human Rights Institutions in the UK. As a National Human Rights Institution the NIHRC engages with and reports to the United Nations’ and Council of Europe’s treaty monitoring processes.
7. The Northern Ireland Human Rights Commission is a statutory public body established in 1999 to promote and protect human rights. In accordance with the Paris Principles the Commission reviews the adequacy and effectiveness of measures undertaken by the UK Government to promote and protect human rights, specifically within Northern Ireland (NI).