Update on Human Rights Commission's legal challenge on access to abortion services

Update on Human Rights Commission’s legal challenge on access to abortion services

The Northern Ireland Human Rights Commission has been granted leave by the High Court to take a judicial review against the Secretary of State and Department of Health for Northern Ireland. The Commission is challenging the failure to commission and fund abortion services in Northern Ireland.

The case is currently listed to be heard at Belfast High Court on Wednesday 26 and Thursday 27 May 2021.

Notes to editors:

1. The High Court is also considering whether leave should be granted against the NI Executive and has asked for a written submission on this issue before reaching a final decision. In its application to the Court, the Commission had initiated legal action against the Secretary of State, NI Executive and Department of Health for Northern Ireland for failing to commission and fund abortion services in Northern Ireland.

2. Why is the Commission taking the case?

• The Human Rights Commission wants the Department to enable the commissioning and funding of abortion services provided for in the Abortion (Northern Ireland) (No 2) Regulations 2020; and expects the Secretary of State to take such legislative action as is necessary to meet his legal duty to ensure this happens, including if necessary to take legislative action.

3. What are the Commissions concerns?

• The lack of a Department of Health supported approach has created a disparity in accessing termination services within Northern Ireland.

• It has also meant that many, depending on their circumstances and where they live in Northern Ireland, continue to have to travel to England or to Ireland and pay for a service or to use unregulated services.

• The current situation raises public health considerations for those women who are left with no choice but to travel to use a service

4. What human rights are engaged?

• The decision of women and girls to make choices about continuing their pregnancy falls within the scope of Article 8 of the European Convention on Human Rights, which protects the right to private and family life. Article 8 states:

(1) Everyone has the right to respect 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

The Commission is arguing that the failure to commission and fund service giving effect to the Abortion (NI)(No.2) Regulations 2020 has resulted in women and girls not being able to access lawful abortions, a disproportionate interference with their rights under Article 8 ECHR.

5. What is the current law in Northern Ireland on Abortion?

• Since 31 March 2020, terminations have been legalised in NI in a number of circumstances including under any circumstances by a registered doctor, nurse or midwife up to 12 weeks and where there is a risk to physical or mental health in the opinion of two registered medical professionals up to 24 weeks.

• Terminations with no gestational limit are also now legal in NI where there is an immediate necessity to save a life or to prevent a grave permanent injury to the physical or mental health of a pregnant woman, or in cases of severe foetal impairment or fatal foetal abnormality.

• The new law was introduced in the Executive Formation Act (NI) 2019 requiring the Secretary of State for Northern Ireland to implement in full the recommendations of the UN Convention of Elimination of Discrimination of Women inquiry into abortion in Northern Ireland which held that the (then) law created grave and serious violations of human rights.

6. How is the current law being implemented in Northern Ireland?

• The Department of Health has not commissioned or funded termination services for the purposes of implementing the Abortion (Northern Ireland) (No2) Regulations across Northern Ireland.

• The Department of Health has failed to issue any guidance to health and social care trusts on the provision of abortion services including when and in what circumstances medical staff may exercise their freedom of conscience when delivering a service.

• Papers were submitted to the NI Executive by the Department of Health in April and May 2020 seeking to commission a service. We understand the NI Executive has not yet discussed, and therefore made no decision on the paper submitted in May 2020.

• Health and social care trusts are offering termination within existing services and only where resources allow. This was done as a short term measure by transferring staff from other sexual and reproductive services which were held in abeyance or reduced as a result of Covid restrictions.

• Several months ago, the five health and social care trusts produced an application seeking funding to meet the new legislative requirements for abortion services but this was not considered by the Health and Social Care Board.

• From 5 October 2020 the Northern Health and Social Care Trust had to transfer staff back into other sexual and reproductive health care services and therefore ceased to take any new referrals for termination services and the remaining four trusts are not providing abortions for between 10 and 12 weeks due to lack of resources. Other trusts have not got the resources to pick up this work. On 4 January 2021 it restored the service.

• From 5 January 2021 the South East Health and Social Care Trust ceased to provide a service as the only clinician providing the service went on maternity leave. The service was eventually restored in early February 2021.

• Termination services for medical reasons up to 24 weeks or without a gestational time limit, in line with the Abortion Regulations, are mainly performed by the Belfast Health and Social Care Trust.

7. Further information can be found in our fact sheet here.