Human Rights Commission Welcomes Historic Termination of Pregnancy Ruling
30 November 2015
Chief Commissioner Les Allamby commented:
“The Human Rights Commission welcomes today’s landmark ruling. In taking this case we sought to change the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy locally in circumstances of fatal foetal abnormalities, rape or incest, without being criminalised for doing so.
We are pleased that today that the High Court has held that the current law is incompatible with human rights and has ruled in the Commission’s favour.
Today’s result is historic, and will be welcomed by many of the vulnerable women and girls who have been faced with these situations. It was important for the Commission to take this challenge in its own name, in order to protect women and girls in Northern Ireland and we are delighted with the result”.
For further information please contact: Claire Martin on 07717731873 or 02890 243987 Claire.Martin@nihrc.org
Notes to editors:
1. A Judicial Review was taken by the Northern Ireland Human Rights Commission on Northern Irelands Termination of Pregnancy Law. The case was taken against the Department of Justice. The Attorney General for Northern Ireland was also a notice party in the case. The judgment was delivered today in Belfast High Court. Access the full judgment here.
2. The High Court today held that Article 8 of the European Convention on Human Rights, the right to family and private life is breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
3. The Court also held there is neither a general right to abortion nor the protection of the right to life under the common law. It held that the failure to provide exceptions to the prohibition of termination in cases of serious foetal abnormality is also not contrary to the European Convention on Human Rights.
4. What are the grounds of the case?
The Northern Ireland Human Rights Commission has asked the Court to declare that the current law, relating to access to termination of pregnancy services for women in cases of serious malformation including fatal foetal abnormalities of the foetus or 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 is only 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.
5. Who are the Intervenors? Individuals and organisations who have been given permission to make a written submission in the case are:
• Sarah Ewart
• Northern Bishops
• The Society For The Protection Of Unborn Children
• Family Planning Association
• Alliance for Choice & an Anonymous individual
• Precious Life
• Amnesty International
6. What will happen next?
If the Court finds in the Human Rights Commission’s favour, it will then fall to the Northern Ireland Assembly to amend the law.
7. Appeals: Any Party in the Case, (The Northern Ireland Human Rights Commission, the Department of Justice and the Attorney General) can lodge an appeal after the Judgment. The time limit for appeal is 6 weeks after the Judgment is delivered.
8. Case Timeline
1. 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.
2. In April 2015, Speaking after the public consultation was completed; Justice Minister David Ford announced a recommended change to Northern Ireland’s abortion law. He stated he would ask the Executive for its approval to bring forward legislation to the Assembly which would allow for termination of pregnancy in cases of fatal foetal abnormality. He also proposed to allow for the inclusion of a conscience clause in the legislation, but stated he would not proceed with changes relating to pregnancy resulting from sexual crime.
3. In February 2015 the Human Rights Commission successfully applied for leave to judicially review the law on termination of pregnancy in Northern Ireland at the High Court.
4. In December 2014 the Northern Ireland Human Rights Commission initiated legal proceedings against the Department of Justice as a last resort. 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. 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.
5. 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 at:https://www.dojni.gov.uk/consultations/consultation-abortion-2014
9. Case Facts
1. In forming its view on access to termination of pregnancy services the Commission has considered the full range of internationally accepted human rights standards, 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.
2. The legal case is 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.
10. The Northern Ireland Human Rights Commission is able to initiate proceedings in its own name and has done so previously when it successfully challenged the Adoption (Northern Ireland) Order 1987 on the grounds that it was discriminatory. This means that unmarried and same sex couples can now apply to adopt in Northern Ireland.
11 . The Northern Ireland Human Rights Commission is a statutory public body established in 1999 to promote and protect human rights. In accordance with section 69(1) of the Northern Ireland Act 1998, the Commission reviews the adequacy and effectiveness of law and practice relating to the protection of human rights in Northern Ireland.
12. What are Third Party Intervenors: Seven third party intervenors were granted permission to enter written submissions in the case. A third party intervener is essentially an outsider to the case and could be a private company, an individual or an NGO. A third party intervenor will make submissions, usually in writing that it considers are relevant to the case before the Court.