The High Court in Northern Ireland has found that the outright ban on abortion breaches Article 8 of the European Convention on Human Rights, in that it denies women and girls who are victims of rape and incest, as well as those suffering from fatal foetal abnormalities access to legal abortions.
The application of judicial review was brought by the Northern Ireland Human Rights Commission, who are granted legal standing under theNorthern Ireland Act 1998. It was found that the lack of a victim did not preclude the Commission having standing.
The Commission sought a declaration of incompatibility under Section 4(2) of the Human Rights Act 1998, in respect of Sections 58 and 59 of the Offences against the Person Act 1861, and Section 25 of the Criminal Justice Act (NI) 1945.
Submissions were also made by a wide range of organisations, representing “various shades of opinion across the religious and political spectrum.”
Delivering the judgment, Horner J noted that any issue involving abortion is always highly contentious, and emphasised his hope that “everyone will read this judgment in full, consider the arguments that have been made and understand them, even if they are unable to accept the conclusions which I have reached.”
While acknowledging the moral arguments that will always surround such a debate, Horner J noted that he was primarily concerned with a legal question, and would seek to follow Paton v British Pregnancy Advisory Services Trustees and Another  QB 276, and “apply the law free of emotion or predilection.”
It was noted that the question did not relate to a general right to abortion, but to whether the failure to provide certain limited exceptions to the ban on abortion in Northern Ireland, namely in cases where there is serious malformation of the foetus, including a fatal foetal abnormality, or where the pregnancy is a consequence of sexual crime is in compliance with the human rights contained within the European Convention on Human Rights.
The application for judicial review follows two years of communication between the Human Rights Commission and the Government of Northern Ireland.
The Commission has repeatedly asserted that the Executive is in breach of its duties under human rights law, and has urged the Minister of Justice to deliver on his intention to consult on the issue of abortion in Northern Ireland.
The eventual Consultation Document issued on 20 October 2014 failed to address abortion for serious malformation of the foetus, and did not make any recommendations relating to abortion in cases of sexual crime.
On the 7 November the applicant made clear to the Department of Justice that unless it brought forward legislation allowing for lawful termination under these conditions, proceedings would follow.
In December, proceedings were instituted by the Commission. While no applicants have joined who can be described as victims, examples have been provided and there have been interventions by persons who could be described as victims, including Sarah Jane Ewart and AT.
The relevant legislation was summarised by the Court of Appeal in Family Planning Association of Northern Ireland v The Minister for Health, Social Services and Public Safety  NICA 37.
Nicholson LJ noted that the procurement of an abortion is a criminal offence punishable by a maximum sentence of life imprisonment, unless there was a risk of death or long-term harm to the mother’s physical or mental health. The same applies to any secondary parties to the commission of the abortion.
He also noted that under Section 5 of the Criminal Law Act (NI) 1967, anyone who knew or believed that an unlawful termination of pregnancy had been performed also committed a criminal offence if they failed to pass on any material information to the authorities.
The Judge then outlined the evidence. He noted that it is not possible to know how many women or girls travel to Great Britain for an abortion as a consequence of being impregnated following rape and/or incest, but that there was evidence to suggest that many did.
Evidence was admitted by Ms Ewart and AT, as well as from the Director of Abortion Support Network and Marie Stopes International, which shared the experiences of women and girls who had been forced to travel, or forced to carry to term foetuses which were doomed to die.
An affidavit was also sworn by Amanda Patterson, Head of Criminal Policy Branch of the Department of Justice, which stated that the Department did not consider any changes necessary in order to achieve compliance with the European Convention, and noted comments by Peter Robinson, the First Minister which indicated that the proposals for reform were “doomed.”
Nicholson LJ further noted the “complicated and cumbersome process” of decision-making within the NI Executive, and stated that the “unavoidable inference from the inaction of the Department to date and the comments of the First Minister is that the prospect of any consultative paper, never mind legislative action on pregnancies which are the consequence of sexual crime, is even more gloomy.”
The Judge then moved to consider the margin of appreciation, or “the amount of latitude left to national authorities.”
It was noted that in the case of A, B and C v Ireland  53 EHRR 13, a wide margin of appreciation was given to the Irish state on the issue of abortion, due to the “profound moral views” of the Irish people.
It was also noted that there is no direct authority from the European Court of Human Rights, and that the Court has left these matters to individual states.
In such a situation, following the cases of Re G (Adoption: Unmarried Couple)  1 AC 173 and R (Nicklinson) v Ministry of Justice  UKSC 38, it was for the courts to interpret whether there had been a breach of human rights.
This did not mean that the courts could change the law, but following A v Secretary of State for the Home Department  2 AC 68, could “delineate the boundaries of a rights-based democracy.”
It was noted that Northern Ireland Good Frid Agreement was built on foundations, one of which was a guarantee of “rights, safeguards and equality of opportunity.”
The Northern Ireland Act 1998 made it clear that the Assembly could not pass provisions that were incompatible with Convention rights, and assurances were given to the people of Northern Ireland that their human rights as enshrined within the Convention would be protected.
Thus, it fell to the judiciary to determine whether “any impugned provision is Convention compliant.”
Nicholson LJ considered the abortion laws within Europe, noting that “European consensus would suggest that the right to abortion on both sides of the border in Ireland should be extended.” However, there is no consensus or legal definition on the meaning of life or when it begins, as noted in A, B and C v Ireland.
Although noting that international treaties do not constitute law unless they are incorporated into domestic law, the Court gave an overview of relevant international legal documents and obligations.
These included the Convention on the Elimination of all forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, the United Nations Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, theCouncil of Europe, the European Social Charter, the United Nations Convention on the Right of the Child and United Nations Convention on the Rights of Persons with Disabilities.
It was found that there existed “a groundswell of support for the view that the UK’s international obligations, even though they are not incorporated into Northern Ireland law, require exceptions so as to permit abortions for pregnancies which are a consequence of rape and/or incest and where there is a fatal foetal abnormality”.
However, there did not appear to be any international obligation to provide abortions in the case of serious malformations of the foetus.
Finally, it was noted that “the United Nations Human Rights Treaty monitoring bodies have consistently called on State parties to amend, when possible, legislation criminalising abortion in order to withdraw punitive measures imposed on women who undergo abortion.”
The Judge observed that the Convention protects certain fundamental rights, and that this has been used within Northern Ireland to prevent the imposition of criminal sanctions on homosexuals in Dudgeon  4 EHRR 149, and to challenge the restrictive rules on adoption in Re G (Adoption: Unmarried Couple)  UKHL 38.
He stated that there was no doubt that the Convention had made Northern Ireland a more tolerant and liberal society, and that while the Convention does not require anyone to give up their beliefs, it did mean that certain rights must be protected.
With regards to the right to life under Article 2 of the Convention, it was found that the foetus has no legal right of its own, following Paton v British Pregnancy Advisory Service Trustees and Another  QB 276.
The law was summed up as being that “the unborn child does not enjoy a full “right to life” under Article 2.”
With regards to Article 3, and the right to be free from torture or to inhuman or degrading treatment or punishment, it was found that there was no convincing evidence that the prohibition of abortion in the three cases before the Court amounted to a breach of that right.
However, in relation to Article 8, and the right to respect for private and family life, a breach was found. The proportionality test was applied to Article 8, as outlined in Bank Mellat v HM Treasury (No 2)  AC 700 as requiring a policy objective, to which the action has a rational connection, and which is no more than necessary, and strikes a fair balance between the rights of the individual and the interests of the community.
While protecting pre-natal life and protecting morals based on the views of the people of Northern Ireland were deemed lawful objectives, there was no evidence to suggest that the present abortion regime effectively saved pre-natal life.
Indeed, it appeared to simply make it more difficult for women in these exceptional circumstances to terminate their pregnancies. Furthermore, there was no evidence placed before the Court to suggest that the criminalisation of abortion with a potential life imprisonment was the minimum necessary to prevent abortion in these cases.
Finally, “it can be said with a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed by the impugned provisions in this particular case.”
In relation to Article 14 and the right to enjoy Convention rights without discrimination, the Judge found that as there had been a breach of Article 8, “consideration of Article 14 is strictly speaking unnecessary.”
However, as the case was likely to go to appeal, it was stated that no discrimination had been proven.
In terms of the relief offered, the Court cited Bellinger v Bellinger  UKHL 21 and R (Nicklinson) v Ministry of Justice  UKSC 38 in considering whether to make a declaration of incompatibility.
It found that due to the extremely sensitive nature of the issues, the Court should adopt a cautious approach, and issue a declaration of incompatibility, subject to further submissions by the parties.
- by Rachel Killean for Irish Legal News