NI: High Court: Abortion law in Northern Ireland is incompatible with European Convention on Human Rights

A woman who had to travel to England for a termination after being told that her unborn child had a fatal foetal abnormality has been successful in her challenge to Northern Ireland’s abortion law.

Following the UK Supreme Court’s ruling that the relevant legislation is incompatible with Article 8 of the European Convention on Human Rights, Mrs Justice Siobhan Keegan said she may make a declaration of incompatibility but would hear further submissions from the parties before deciding upon relief.

UK Supreme Court ruling

In June 2018, a majority of the UK Supreme Court found that the abortion law in Northern Ireland was incompatible with Article 8 of the ECHR in cases of fatal foetal abnormality, rape, and incest.

However, the Court held, by a four-to-three majority, that the Northern Ireland Human Rights Commission (NIHRC) did not have standing to bring the proceedings and therefore the Court did not have jurisdiction to make a declaration of incompatibility to reflect the majority view on ECHR compatibility.

Sarah Ewart’s application

After the Supreme Court’s ruling, Sarah Ewart brought a challenge to the High Court in Northern Ireland. In 2013, Ms Ewart was pregnant and was told at her 20-week ultrasound scan that her baby had a fatal foetal abnormality. She was told that the baby would die before birth, or that she would have to carry the baby to her due date when the baby would die in the process of being born or shortly afterwards.

Ms Ewart felt that she could not go through with the pregnancy, and had to travel to England for a termination. She was later advised that she had an increased risk of pregnancies complicated with neural tube defects.

In the High Court, Ms Ewart argued that abortion legislation in Northern Ireland – section 58 (administering drugs or using instruments to procure abortion) and section 59 (procuring drugs etc to cause abortion) of the Offences Against the Person Act 1861, and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945 (punishment for child destruction) – preventing access to abortion in cases of fatal foetal abnormality violates human rights law. In particular, Ms Ewart said the legislation was incompatible with Article 8 ECHR (right to respect for private and family life).

Ms Ewart also challenged the failure by the Department of Justice and the Department of Health to take steps towards amending the legislation to ensure compliance with Article 8 ECHR.

Stating that she intended to follow the Supreme Court’s finding of incompatibility, Mrs Justice Keegan said “the decision on substantive compatibility issues was intended by the UKSC to have persuasive force”. Declining to re-open the arguments already made and decided in relation to Article 8 compatibility, Mrs Justice Keegan said the questions for the Court were:

  • Whether Ms Ewart had standing in the proceedings;
  • Whether declaratory relief was appropriate.

Standing to bring the claim

The Attorney General for Northern Ireland argued that Ms Ewart was not a victim within the meaning of the ECHR, and that she did not have standing if she had not suffered from any unlawful act.

Mrs Justice Keegan explained that Ms Ewart had not claimed to have suffered from an unlawful act, but had instead argued that the law was incompatible and that she had an increased risk of being affected in the future.

Mrs Justice Keegan said: “In my view it is enough to say that a person must be at risk of being directly affected and have had to modify their behaviour or risk prosecution. I think it would be wrong to adopt any more rigid an approach because of the infinite variety of circumstances which may arise. The facts of a particular case will determine whether or not a particular person can bring a claim under the Convention.”

Concluding that Ms Ewart had standing to bring the claim, Mrs Justice Keegan said:

“[Ms Ewart] has been affected by the current law in that she has had to travel to seek an abortion in desperate circumstances. In addition, she runs the risk of being directly affected again by the current legal impositions given that she is at risk of a baby having a fatal foetal abnormality. She has had to modify her behaviour in that she could not have medical treatment in Northern Ireland due to the risk of criminal prosecution. She may be actively affected in the future.  In my view her personal testimony is not disputed. I do not need anything else from her as I consider that she has established her standing and is a victim in Convention terms on the basis of the evidence she has provided.”

Mrs Justice Keegan added that the Attorney General’s argument, if correct, raised the disturbing prospect that some other young woman faced with this situation would be required to come forward and pursue litigation at a time when she would be faced with the trauma and pain associated with her circumstances. She said she could not see that this would serve any benefit or that it would be right to ask another woman to relive the trauma these events undoubtedly cause.

Considering whether a declaration of incompatibility should be made, Mrs Justice Keegan said that in following the majority view of the UKSC, having determined that Ms Ewart had standing, she may make a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998.

Mrs Justice Keegan noted that, after she heard Ms Ewart’s case, the Northern Ireland (Executive Formation etc) Act 2019 passed into law – this Act effectively states that, unless the Northern Ireland Assembly is restored by 21 October 2019, sections 58 and 59 of the Offences Against the Person Act 1861 will be repealed under the law of Northern Ireland. In light of this, Mrs Justice Keegan said she would allow the parties to make further submissions before determining the question of relief.

  • by Róise Connolly for Irish Legal News
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