Human Rights Commission Responds to Court’s Decision on Termination of Pregnancy Laws
16 Dec 2015
16 December 2015
Justice Horner has provided his decision on how to take forward the Human Rights Commission’s recent successful Judicial Review of N.I Termination of Pregnancy Laws. Judgment on Relief was provided at the Chancery Court today.
NIHRC Chief Commissioner Les Allamby stated:
“We welcome the Courts decision today to grant a declaration of incompatibility, confirming that the existing termination of pregnancy laws are contrary to human rights. It now falls to the Department and the Northern Ireland Executive to bring forward legislation to reflect the Judgment of the Court. The Commission will await to see how the Department & the Executive will take this forward or if any appeals will be lodged.”
The Northern Ireland Human Rights Commission’s won its Judicial Review of N.I Termination of Pregnancy Laws on 30 November 2015. The Court held that Article 8 of the European Convention on Human Rights, the right of women to family and private life was breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
Please contact Claire Martin at Claire.Martin@nihrc.org
FACTS OF THE CASE
1. There were two options on how the Judgment could be taken forward:
First was to: read down existing legislation (the 1861 Offences against the Persons Act), in a way so that terminations are to be allowed in N.I, in the cases of sexual crime and fatal foetal abnormalities. In this way, it would be covered within the existing law and the N.I Assembly would not need to take further action. In the Commission’s view any guidelines issued by a government department would need to comply with this, as law.
Second was to grant a ‘declaration of incompatibility’ that the existing legislation is contrary to human rights in the specific circumstances of this ruling. This would require the N.I Assembly to legislate to change the law and the current law would stand until the Assembly did so.
2. In the Current Interim Period:
If an appeal is lodged this means that the law as it stands won’t change until all appeals are concluded. It may go through to the Supreme Court in London.
3. The Commission was successful in its Judicial Review on Northern Irelands Termination of Pregnancy Law. The case was taken against the Department of Justice. The Attorney General for Northern Ireland was also a notice party in the case. The judgment was delivered on 30 November 2015 in Belfast High Court. Access the full judgment here
4. The High Court held that Article 8 of the European Convention on Human Rights, the right of women to family and private life is breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
5. The Court confirmed there is neither a general right to abortion nor the protection of the right to life under the common law in Northern Ireland. It held that the failure to provide exceptions to the prohibition of termination in cases of serious foetal abnormality is also not contrary to the European Convention on Human Rights.
6. What were the grounds of the case?
The Northern Ireland Human Rights Commission asked the Court to declare that the current law, relating to access to termination of pregnancy services for women in cases of serious malformation including fatal foetal abnormalities of the foetus or pregnancy as a result of rape or incest, was incompatible with human rights law and results in a breach of the rights of women and girls seeking a termination of pregnancy in these circumstances.
Termination of pregnancy is only currently available in Northern Ireland if it is necessary to preserve the life of a woman; including where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent. The doctor must be of the opinion that the continuation of the pregnancy will be to make the woman a “physical or mental wreck”: R v. Bourne  KB 687, per Macnaghten J at 694. It is unlawful to perform a termination of pregnancy, under section 58 of the Offences against the Person Act 1861, unless on these grounds. The punishment is life imprisonment for anyone who unlawfully performs a termination.