The Challenge
In 2014, the NIHRC initiated judicial review proceedings against the Department of Justice in respect of sections 58 and 59 of the Offences against the Person Act 1861.
The NIHRC argued that the criminal law breaches the rights of women and girls by preventing access to a termination of pregnancy in cases of rape, incest and serious foetal abnormality.
The NIHRC issued these own-motion proceedings under section 71(2B) of the Northern Ireland Act 1998.
Human Rights engaged
Article 3 and 8 ECHR
Outcome
In June 2018, the UK Supreme Court concluded that the current law in Northern Ireland breaches the Article 8 ECHR rights of women and girls in cases of fatal foetal abnormality, rape and incest.
The UK Supreme Court held that the NIHRC did not have legal standing to issue the claim, i.e. that it could not bring proceedings in its own name in this case, without a victim.
Judgments
High Court - Re NIHRC [2015] NIQB 96
Court of Appeal - Re NIHRC [2017] NICA 42
UK Supreme Court - Re NIHRC [2018] UKSC 27
Current Status
A duty to give effect to the recommendations of the CEDAW Committee Inquiry report was passed by the Northern Ireland (Executive Formation etc) Act 2019. The Abortion (Northern Ireland) (No. 2) Regulations 2020 [link] now permit terminations within the jurisdiction of Northern Ireland in the following circumstances:
- under any circumstances for a pregnancy not exceeding 12 weeks;
- where the pregnancy poses an actual or reasonably foreseeable risk to the mental or physical health of the pregnant woman and girls for a pregnancy not exceeding 24 weeks; or
- anytime during the pregnancy where there is an immediate necessity, a risk to life or a grave permanent injury to physical or mental health of a pregnant woman or girls, or in cases of severe foetal impairment or fatal foetal abnormality.
The NIHRC’s power to issue an own motion challenge was subsequently confirmed by Parliament by European Union (Withdrawal Agreement) Act 2020, which amended to the Northern Ireland Act 1998.