Judgment Reserved in Human Rights Commission’s Review of Termination of Pregnancy Law
17 June 2015
Judgment has been reserved in the Human Rights Commission’s judicial review of the law on termination of pregnancy in Northern Ireland. The case was heard at the High Court on Monday 15 June until Wednesday 17 June. The Commission successfully applied for a review of the law in February. The Commission believes the case directly engages the right to be free from torture and inhuman and degrading treatment, the right to privacy, and the right to freedom from discrimination as protected by the European Convention on Human Rights. 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, rape or incest.
Chief Commissioner Les Allamby commented:
“It was appropriate for the Human Rights Commission to take this legal challenge in our own name. We recognise the particular sensitivities of the issue. It is a matter of significant public interest to ensure that the rights of vulnerable women and girls in these situations are protected. It is in everyone’s interest that the law is clarified in this area. We have made our arguments before the Court and now await Justice Horner’s decision, which we expect to receive sometime in the Autumn.”
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. It is unlawful to perform a termination of pregnancy unless on these grounds. The punishment is life imprisonment for anyone who unlawfully performs a termination.
The Commission issued legal proceedings against the Respondent in the case, the Department of Justice in December 2014. It has taken this action as a last resort. Since November 2013 we have repeatedly advised the Department of Justice (DOJ) that the existing law is, in the Commission’s view, a violation of human rights.
In the case of the Northern Bishops conference and Sarah Ewart the judge heard brief oral arguments from both. Alongside the arguments about whether the Convention applies in these specific circumstances there was also legal argument about whether the Commission had the powers to bring this case and whether it was appropriate to proceed in its own name without a victim. Further legal argument was made about the standing of other international human rights treaties and their committees including the UNCRC, CEDAW and UNCRPD.
A final decision in the case is not expected until after the Court’s summer recess.
For further information please contact: Claire Martin on 07717731873 or 02890 243987 Claire.Martin@nihrc.org
Notes to Editors
1. 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.
2. 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 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.
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 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.
5. Human Rights Commission’s Judicial Review of the law on termination of pregnancy was heard at the High Court in Belfast from 15-17 June 2015.
6. In forming it’s 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.
7. 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.
8. The 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.
9. The 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.
10. What is a Judicial Review: It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
11. Role of third party intervenors: A third party intervention is the term given to the process by which a body that is not a party in the case makes submissions to the Court. A third party intervener is essentially an outsider to the case and could be a private company or individual, an NGO, a Secretary of State or the Attorney General. A third party intervenor will make submissions, usually in writing that it considers are relevant to the case before the Court.