The NIHRC Blog #4

Our August blog post is written by our Chief Commissioner, Les Allamby.

The Court of Appeal has issued its judgement on the Commission’s legal challenge to the lack of access to termination in Northern Ireland in cases of fatal foetal abnormality, serious malformation of the foetus and for victims of sexual crimes. Save for upholding the right of the Commission to take the case without a victim, the Court of Appeal upheld the appeal of the Department of Justice and Attorney General and dismissed the Commission’s cross appeal.

All three judgements referenced the Supreme Court decision in Nicklinson in 2015 (the right to assisted suicide case) in which the Supreme Court refused by a majority to override legislation which created a criminal offence for assisted
suicide. In Nicklinson a majority held that the constitutional authority that a general prohibition on assisted suicide was incompatible with Article 8 but only two judges would have granted a declaration of incompatibility under the Human Rights Act. The Court had held that, on questions of moral and political judgements, courts would be slow to intervene albeit that the fact moral issues are involved does not preclude the courts’ direct involvement. The decision, in part, turned on the Westminster Parliament’s active consideration of the existing law and whether it should be reviewed. In the Commission’s case, the judges’ consideration of Nicklinson alongside the significant margin of appreciation recognised by the European Court of Human Rights led to a conclusion that the issue should be dealt with by the Northern Ireland Assembly.

Despite this disappointment, there were a number of crumbs of comfort. The Lord Chief Justice signalled his willingness to expand the horizons of the common law outlined in R v Bourne (1939) to allow terminations beyond the current circumstances, namely where there is a risk to the life of the mother or serious and long-term harm to her physical and mental health.

In particular, he outlined the present law

‘prioritises the need to protect to a reasonable extent the life that women in (the circumstances presented in affidavits before the Court) these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in today’s society that is not to be defined by the values of the 1930s’.

Neither of the other judges was prepared to extend the common law though, in passing, Lord Justice Gillen noted his difficulty in seeing how the women’s circumstances outlined before the court did not fall within the Bourne exception. Of course, the lack of clarity about when a termination is lawful and the consequences of the criminal law leads to the problem being exported except in the most extreme of circumstances.

Unusually, the Court of Appeal invited the Commission to lodge any appeal immediately and that leave to appeal would be granted acknowledging the likelihood that the case was likely to go to the Supreme Court regardless of outcome. The Commission has lodged its appeal and leave has been granted. We will now seek an expedited hearing before the Supreme Court and seek to join the case with the earlier application from the Attorney General challenging the Commission’s
standing to take the case.

Alongside the human rights arguments, the Supreme Court is likely to revisit again the thorny question of whether and, if so, in what way the courts should intervene in contested moral and legal arguments which have not been resolved by the
legislature.