The “Standing” of the Human Rights Commission

by Les Allamby, Chief Commissioner Northern Ireland Human Rights Commission

This article is taken from the June/July 2018 edition of CAJ’s Just News publication, which you can access here.

The Commission’s recent challenge to the current law on abortion in Northern Ireland and whether it meets human rights standards in cases of serious malformation of the foetus and for victims of sexual crimes including rape and incest ultimately foundered because of the Commission’s legal standing.

The Commission took the case in its own name based on the understanding of our powers and the ramifications for a woman facing for example, a fatal foetal abnormality or a pregnancy resulting from a sexual crime having to face the burden of court action on top of everything else she would be coping with.

The Supreme Court ruled by a majority of four (Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones) to three (Lord Kerr, Lord Wilson and Lady Hale) that the Commission did not have powers to bring proceedings as they were not instituted by identifying any unlawful act or potential victim.

The lead judgement given by Lord Mance took a literal approach to the relevant sections of sections 69 and 71 of the Northern Ireland Act. As a result, he held the Commission’s powers do not include either instituting or intervening in proceedings where the only complaint is that primary legislation is incompatible with the European Convention of Human Rights as such proceedings would not involve an unlawful act within the meaning of sections 6 and 7 of the Human Rights Act. The Offences against the Person Act 1861, which criminalises abortion, is primary legislation. Lord Mance held that it was no surprise that Parliament did not provide an unfettered right to challenge the interpretation or compatibility of primary legislation with Convention rights. The judgement interestingly fails to set out what then the purpose actually was of the amendment to the Commission’s powers under the Justice and Security (NI) Act 2007.

In contrast, Lord Kerr’s starting point was the Commission’s creation in the Good Friday (Belfast) Agreement. He noted the will of Parliament and the legislation’s true purpose was to allow the Commission to bring a legal challenge pre-emptively where there have been victims of the laws being challenged.

Of particular note, is having ruled the Commission had no standing, the Supreme Court unusually went on to offer its views on the substantive issue holding that the current law breaches Article 8 (the right to family and private life) and a woman’s right to personal and bodily autonomy in cases of fatal foetal abnormality and for victims of rape and incest.

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 on the compatibility of primary legislation with the Human Rights Act.

In practice, there is a need for a timely response. Any reduction in powers will have to be reported to the Global Alliance of National Human Rights Institutions (GANHRI) sub-accreditation committee. GANHRI re-awarded the Commission its ‘A’ status as an NHRI under UN Paris Principles in May 2015. GANHRI is likely to consider the correspondence reporting our reduction in mandate and the UK government’s response in the autumn. As a result, we have written to the Secretary of State to obtain her view on the matter.

Based on initial soundings and without being complacent we are hopeful of securing the necessary amendment during the next session in Parliament.

The Commission has always used its powers to take cases in its own name sparingly and discerningly. At this point, we would welcome human rights NGOs keeping a watching brief on the restoration of the powers until the government’s position becomes clearer.