NIHRC Awaits Supreme Court Judgment on N.I Termination of Pregnancy Laws
The Human Rights Commission’s 3 day challenge to the law on Termination of Pregnancy in Northern Ireland closes at the Supreme Court in London today. In the Commission’s view the current law in Northern Ireland violates human rights.
Chief Commissioner Les Allamby commented:
“This is a landmark case, we are seeking change to allow the choice of accessing a termination of pregnancy locally in circumstances of serious malformation of the foetus, rape or incest, without getting a criminal record or facing going to prison. For example, in Northern Ireland if a child or women is raped they cannot have access to a termination, we believe this situation is wrong and that it violates their human rights.”
In the Commission’s view the current law is incompatible with Articles 3 (Freedom from Torture), 8 (Right to Private and family life) and 14 (Non-discrimination) of the European Convention on Human Rights. The three day court challenge heard interventions in favour of the Commission’s case from a United Nations Human Rights Council, Independent Working Group of Experts on the issue of discrimination against women in law and in practice.
Chief Commissioner Les Allamby added:
“Throughout the case we have been steadfast in our view that this matter is better resolved through the N.I Assembly, nonetheless given the significance of the matter and the sensitive issues involved, the Commission took the case in its own name, recognising how difficult it would be for a woman to challenge the law in the circumstances covered by the case. This decision was made to protect women or girls, in situations of rape, incest or with a diagnosis of a serious foetal abnormality, from having to go to Court on an individual basis. It has the opportunity to bring about a real change to the law on termination of pregnancy in Northern Ireland and we now await the Supreme Court’s Judgment.”
No date has been set for the delivery of the Supreme Court Judgment. We anticipate judgment in the coming months.
INTERVIEW REQUESTS: CONTACT CLAIRE MARTIN ON 07717731873
INTERVIEWS AVAILABLE WITH: LES ALLAMBY, CHIEF COMMISSIONER OF THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION
• From 2013 the Northern Ireland Human Rights Commission has continued to seek a change to the law to allow termination of pregnancies in Northern Ireland in cases of serious malformation of the foetus or pregnancy as a result of rape or incest.
• Recognising how difficult it would be for a woman or girl to challenge the law in the circumstances covered by the case the Commission took the case in its own name.
• In the Commission’s view the existing law in Northern Ireland violates the human rights of women and girls.
• 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.
DATES: The Case ran from Tuesday 24 October, Wednesday 25 October and Thursday 26 October.
LOCATION: UK Supreme Court Parliament Square London SW1P 3BD
Parties in the Appeal
Appellants: Northern Ireland Human Rights Commission
1. Northern Ireland Department of Justice
2. Attorney General for Northern Ireland
Justices who heard the Appeal
Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones.
1. United Nations Human Rights Council, Working Group on the issue of discrimination against women in law and in practice;
2. Humanists UK;
3. ADF International, Christian Action, Research and Education & Professor Patricia Casey;
4. Amnesty International & Sarah Ewart;
5. Centre for Reproductive Rights;
6. Family Planning Association, British Pregnancy Advisory Service, Abortion Support Network, Birthrights, Royal College of Midwives, Alliance for Choice & Antenatal Results and Choices
8. Northern Bishops;
9. Society for the Protection of Unborn Children.
10. Equality and Human Rights Commission.
Issues before the Court:
(i) Does the current law in Northern Ireland violate rights?: Whether sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 are incompatible with Articles 3 (Freedom from Torture), 8 (Right to Private and family life) and 14 (Non-discrimination) of the European Convention on Human Rights (ECHR) in failing to provide an exception to the prohibition on the termination of pregnancy in Northern Ireland in cases of serious malformation of the unborn child/foetus or pregnancy as a result of rape or incest.
(ii) Does the Commission have the right to take the case in its own name without a victim?: whether the Northern Ireland Act 1998 entitles the Commission to bring proceedings under the Human Rights Act 1998 (‘HRA’), and to seek a Declaration of Incompatibility under section 4 HRA, other than in respect of an identified unlawful act or acts.
From November 2013 the Commission had repeatedly advised the Department of Justice Northern Ireland that the existing law violates the human rights of women and girls.
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.
In December 2014 the Commission initiated legal proceedings against the Department of Justice as a last resort. 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.
In April 2015 the Department of Justice published its summary of responses to the consultation and announced its intention to bring forward proposals to change the law covering fatal foetal abnormality only. However, the issue never reached NI Executive agenda.
15-17 June 2015 the Commission’s Judicial Review of the law on termination of pregnancy was heard at the High Court. Judgment was reserved at the close of proceedings on 17 June.
30 November 2015 the High Court found in the Commission’s favour ruling that the current law in Northern Ireland is incompatible with human rights based on the breach of Article 8 of the ECHR 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 ECHR. As a result the law was not compatible with human rights on that basis. The High Court did not hold that the law on termination was contrary to either Article 3 or Article 14 of the ECHR.
16 December 2015 the High Court granted a Declaration of Incompatibility under the HRA 1998.
January 2016 The Attorney General and the Department of Justice both appealed the ruling of the High Court. The Commission cross-appealed and re-introduced all of the original grounds it brought before the High Court in 2015.
20-24 June 2016 the Commission’s legal challenge to Northern Ireland’s termination of pregnancy laws was heard at the Court of Appeal in Belfast.
February 2017 the Attorney General challenged the powers of the Commission to take this case by referring a number of devolution questions to the Supreme Court.
29 June 2017 the Court of Appeal in Belfast dismisses the Commission’s appeal. The Court of Appeal held that the issue of any changes to the law on termination should be left to the NI Assembly.
3 July 2017 the Court of Appeal in Belfast gave the Commission leave to the appeal to the Supreme Court in London.
24-26 October 2017 The Supreme Court in London grants an expedited hearing to run from Tuesday 24th October to Thursday 26th October, and will be heard by a panel of seven judges.
Why did the Northern Ireland Human Rights Commission take the case in its own name?
Given the significance of the case and the sensitive issues involved, the Commission took the case in its own name, recognising how difficult it would be for a woman to challenge the law in the circumstances covered by the case. This decision was made to protect women or girls, in situations of rape, incest or with a diagnosis of a serious foetal abnormality, from having to take the case on an individual basis.
How can the Human Rights Commission take cases in its own name?
The Commission is able to initiate proceedings in its own name through powers set out in Justice and Security Act (NI) 2007. These amended the Commission’s powers to permit the Commission to initiate legal action without there having to be a victim.
Has the Commission taken a case in its own name before?
Yes, in the High Court in 2012 and the Court of Appeal in 2013 the Commission successfully challenged the Adoption (Northern Ireland) Order 1987, in its own name, on the grounds that it was discriminatory. This means that unmarried couples (same sex and opposite sex) and civil partners can now apply to adopt a child in Northern Ireland. Both the High Court and the Court of Appeal upheld the right of the Commission to take this case in its own name.
Has the Northern Ireland Assembly considered the issue of termination of pregnancy?
Yes, in February 2016, NI Assembly members voted 59 to 40 against amending legislation to a Justice Bill to allow terminations in cases of fatal foetal abnormality. Assembly Members also voted, by 64 votes to 32, against an amendment legalising abortion in cases of rape, incest or indecent assault. At the end of 2016, the former Minister for Justice, David Ford, introduced a private member’s bill to make abortion lawful on the grounds of fatal foetal abnormality. As a consequence of the Northern Ireland Assembly being dissolved in early 2017, the Bill fell.
Has the United Nations made any reference to Northern Irelands Termination of Pregnancy laws?
Yes, Human Rights Law has developed alongside the Commission’s case and the Commission has updated the Court of these developments.
On 21 July 2015 the United Nations Human Rights Committee issued its concluding observations on the UK recommending Northern Ireland amends its legislation on abortion to allow exceptions in cases of rape, incest and foetal abnormality.
On 9 June 2016 the United Nations Committee on the Rights of the Child issued its report on the United Kingdom. The Committee has called on the UK Government to: decriminalise abortion in Northern Ireland in all circumstances and conduct a review of legislation with a view to ensuring girls’ access to safe abortion and post-abortion care services.
On 14 July 2016 the United Nations Committee on Economic, Social and Cultural Rights expressed concern in its report on the UK that termination of pregnancy is still criminalised in N.I in all circumstances except when the life of the woman is in danger. The Committee recommended that legislation on termination of pregnancy be amended in Northern Ireland to make it compatible with other fundamental rights such as the women’s right to health, life and dignity.