Northern Ireland abortion law clashes with human rights, judges say

Supreme court dismisses bid to overturn law but adds to pressure on politicians to act

Pressure is growing on the government to reform Northern Ireland’s restrictive abortion laws after the supreme court concluded that they are incompatible with human rights legislation.

Justices at the UK’s highest court dismissed a legal challenge by a narrow majority of four to three and said they had no jurisdiction to consider the latest case because there was no actual or potential victim of an unlawful act involved in it.

A majority of judges, however, went on to add that Northern Ireland’s abortion law was incompatible with the right to respect for private and family life as guaranteed by the European convention on human rights.

Four of the seven justices – Lady Hale, Lord Mance, Lord Kerr and Lord Wilson – said it was incompatible in prohibiting abortion in cases of rape and incest and fatal foetal abnormality. A fifth, Lady Black, agreed with them that it was incompatible in cases of fatal foetal abnormality.

Although the decision is not a formal declaration of incompatibility, because the case has technically been dismissed, the judgment triggered fresh calls for the government and politicians in Northern Ireland to deal with the issue.

Les Allamby, the head of the Northern Ireland Human Rights Commission (NIHRC) which brought the legal challenge, said outside the court: “The judges made absolutely clear that if a woman [who had suffered in such a case] was brought forward they would find that our laws are incompatible with human rights.

“It would be unedifying to have to put someone through this in order to reach the same judgment again. The reality is that the Westminster parliament will have a role in this. There’s very significant cross-party support for a change to the law in Northern Ireland.”

Breedagh Hughes, the Northern Ireland director of the Royal College of Midwives, said: “This is a start. It abolishes the myth that this is something that can be contained in Northern Ireland. There’s a moral obligation for Theresa May to bring forward legislation to ensure that women in Northern Ireland have access to their rights.”

Caoilfhionn Gallagher QC, who represented Humanists UK, said: “This is a resounding win for the women and girls of Northern Ireland who have been subject to inhumane laws for too long. Human rights are not a devolved matter. The 1861 Offences Against the Person Act, which criminalises abortion, is an act of the UK parliament.”

Calling for immediate legal reform, Sinn Féin’s deputy leader, Michelle O’Neill, said changes should be brought in via the Northern Ireland assembly.

However, she added, because the Stormont assembly and executive was currently suspended, “the British Irish Intergovernmental Conference should meet as a matter of urgency under the terms of the Good Friday agreement to deliver on rights and equality issues, including the critical issue of women’s right to appropriate, modern and compassionate healthcare.”

Sarah Ewart, who had a termination in England after doctors told her the baby would not survive outside the womb, said she would continue the legal fight by launching a new case in Belfast’s high court.

Her solicitor, Darragh Mackin, of the Belfast firm KRW Law, said: “In light of the findings that the legislation as it stands breaches our client’s human rights, and in the absence of the formal declaration, our client Sarah Ewart has had no alternative but to begin the process of issuing proceedings against the respective bodies seeking a formal declaration.”

The Northern Ireland secretary, Karen Bradley, responding to an urgent question in the House of Commons, said: “The government is carefully considering the judgment and its implications. No formal declaration has been made by the court and the appeal has been dismissed. But the analysis and comments from the court on the issue of incompatibility will be clearly heard by this House and politicians in Northern Ireland.”

Delivering the judgment, Mance said: “The supreme court has no jurisdiction in these proceedings to give relief in respect of the challenge to Northern Ireland abortion law.

“The challenge to the compatibility of Northern Ireland law with the convention rights has, however, been fully argued and evidence has been put before the court about a number of specific cases. It would, in the circumstances, be unrealistic and unhelpful to refuse to express the conclusions at which I would have arrived had I concluded that the [Northern Ireland Human Rights] commission had competence to pursue the challenge.

“I would have concluded, without real hesitation at the end of the day, that the current Northern Ireland law is incompatible with article 8 of the [European human rights] convention insofar as it prohibits abortion in cases of fatal foetal abnormality, rape and incest but not insofar as it prohibits abortion in cases of serious foetal abnormality.” Three other judges agreed with him on that point, he added.

In relation to incest cases, Kerr said: “To require in every instance a girl or woman to carry to term a foetus which was the consequence of exploitative and abusive behaviour and which is utterly abhorrent to her could not, we concluded, be considered as having struck the right balance between her rights and those of society.”

In terms of rape cases, the judge concluded: “A woman is potentially responsible for the child once born under a relationship which may continue for the rest of her life. For these reasons, we concluded that the blanket ban on abortion in cases of rape was plainly disproportionate.”

In terms of cases involving serious, but not fatal, foetal abnormalities, Kerr said the court unanimously agreed that it was compatible with human rights.

“Many children born with disabilities, even grave disabilities, lead happy, fulfilled lives. In many instances they enrich and bring joy to their families and those who come into contact with them. Moreover the difficulty in devising a confident and reliable definition of serious malformation we regarded as a potent factor against a finding of incompatibility.”

Kerr added: “In the course of these proceedings … three enormously brave women gave unsparing accounts of their experiences of having to deal with a pregnancy where they knew that their babies were doomed to die, either shortly after birth or indeed before birth. No one who heard those accounts could fail to be moved by the courage of those women. Nor could they fail to have profound sympathy with the terrible ordeal which they had to endure.”

The anti-abortion organisation Both Lives Matter staged a demonstration outside the supreme court, with placards declaring: “Disabled Lives Matter Too.”

Its spokesman, Peter Lynas, said: “The Northern Ireland assembly had a full debate on this in 2016 and didn’t want to make any changes to the law. It shouldn’t be over-ridden by Westminster. We welcome this ruling. The NIHRC did not have standing in this case. Any wider move to decriminalisation is off the table now.”