Latest Fact Sheet: Human Rights Commission’s challenge to the law on Termination of Pregnancy in NI

What is the current law in Northern Ireland on Termination of Pregnancy?

Termination of pregnancy is only 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 punishment is life imprisonment for anyone who unlawfully procures or performs a termination.

What is the N.I Human Rights Commission’s position on termination of pregnancy?

The Commission wants the law on termination of pregnancy to be changed in Northern Ireland. The Commission recommends that the Department of Justice introduce legislation to end the criminalisation of women and girls in NI if they seek a termination of pregnancy. In line with international human rights standards, it recommends that the Department of Health ensure that women and girls have access to termination of pregnancy in at least circumstances of a threat to physical or mental health, serious foetal abnormality, rape or incest. In addition, women and girls should have access to appropriate aftercare services.

In June 2018 the UK Supreme Court delivered its judgment in the Northern Ireland Human Rights Commission’s challenge to Termination of Pregnancy laws. The Court concluded the current law in Northern Ireland breaches human rights, in particular women and girls’ right to private and family life under Article 8 of the European Convention of Human Rights, in cases of fatal foetal abnormality, rape and incest. However, because the Supreme Court also found the Commission did not have the standing to take the case in its own name without a victim, it did not issue a formal declaration of incompatibility that the law was not in conformity with human rights.

The Commission is currently making a written intervention in the JR76 Case. This case is expected to be heard in November 2018.

Timeline

October 2018: What is JR76?

JR76 is a judicial review challenging the prosecution of a mother for obtaining abortifacient medication for her 15-year-old daughter who was pregnant.

What is the Commission’s role in JR76?

The Commission has made a written intervention in the JR76 case. Our intervention in JR76 has highlighted the following human rights issues to the Court:

a) Continuing criminalisation of termination of pregnancy;

b) Prohibition of torture, inhuman and degrading treatment and the right to private and family life;

c) The right to health;

d) Non-discrimination;

e) Privacy and confidentiality of medical records;

The Commission has also highlighted the judgment in its Supreme Court case.

June 2018: The Commission’s Supreme Court Case

In June 2018 the UK Supreme Court delivered its judgment in the Northern Ireland Human Rights Commission’s challenge to Termination of Pregnancy laws. The Court concluded the current law in Northern Ireland breaches human rights, in particular women and girls’ right to private and family life under Article 8 of the European Convention of Human Rights, in cases of fatal foetal abnormality, rape and incest.

•The Supreme Court also concluded that the Commission could not bring proceedings in its own name in this case without a victim. The Commission is now seeking a legislative amendment and an appropriate Parliamentary statement to put beyond doubt the Commission’s right to take a case in its own name.

•In the Supreme Court judgment Lord Mance notes that “the present law clearly needs radical reconsideration” and that those responsible “will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act.”

In April 2018, the Departments of Health and Justice released a report on fatal foetal abnormality, which recommended that the law in NI is changed. In particular, the report found that the existing legal framework prevented healthcare professionals from fully meeting their duty of care to women.

In February 2018, CEDAW Committee’s Inquiry Report called for the decriminalisation of termination of pregnancy in NI and for access to termination to be permitted in circumstances where there is a threat to the women’s physical or mental health, in cases of rape or incest or in cases of serious fatal abnormality of the foetus. The Committee found the UK Government responsible for grave and systemic violations of the Convention. The UK Government did not accept the findings but held that a detailed response would be prepared once the NI Executive and NI Assembly were restored.

Since November 2017, NI women can receive NHS termination services in England, Scotland and Wales. Department of Health’s 2016 guidance to healthcare providers remains unchanged and does not reflect the availability of free services in England, Scotland and Wales. It also does not clarify when NI health professionals can provide information to women about accessing services elsewhere.