The Court of Appeal in Northern Ireland has overturned the ruling that abortion legislation was incompatible with the UK's Human Rights Act obligations.
In November 2015 the Belfast High Court issued a judgment declaring Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality, rape and incest, incompatible with a woman’s right to privacy under article 8 of the European Convention on Human Rights (ECHR). The application was brought by the Northern Ireland Human Rights Commission who had sought to expand abortion access in Northern Ireland. Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland, where abortions are illegal except where the life or mental health of the mother is in danger (Click here for PILA Bulletin coverage of the High Court case).
Before the Court of Appeal the Attorney General submitted that the Commission did not have the legal power to bring the application. First, there had been a failure to identify an unlawful act under the Offences Against the Person Act 1861 (the ‘Act’) as the Commission was relying on the refusal by the Minister for Justice to amend the legislative provisions when in fact only the Assembly has power to make Acts of the Assembly. Second, even if the Commission was entitled to advance the case it must identify someone who was or would be a victim of each breach of the ECHR to allow the court to examine the particular facts of that case. Reliance was placed on the ECtHR decision in A, B, C v. Ireland where the court found that while the woman’s Article 8 rights were engaged the interference by the State were justified as being “in accordance with the law and necessary in a democratic society for one of the legitimate aims”. In that case the ECtHR had afforded Ireland a wide margin of appreciation on the protection of rights of the unborn due to the right to life being guaranteed under the Irish Constitution.
While the Court found there had not been a breach of the Convention and that abortion issues should be decided by Stormont each justice delivered reasoned judgements that provided different insights on the issue.
The Lord Chief Justice did not consider that A, B, C v. Ireland to be of decisive advantage to the appellants as it was for each jurisdiction to determine such sensitive legal and moral questions within its own borders. That judgement could not be read as requiring such protection for women generally. The Lord Chief Justice stressed that courts in general should exercise judicial restraint when issues of a moral or political nature are before it and in the present case found there had not been a breach of the Convention. In reviewing the main authorities on the issue the Lord Chief Justice found it was not open to the Court to derive a right to abortion from the Convention. He was of the view that the legislation could be interpreted in a manner which would permit additional grounds for termination of pregnancy by redefining the meaning of ‘unlawful’ within the Act. However, it was for the Assembly to determine whether to amend the legislation.
Lord Justice Gillen commented that “Abortion is a classic instance of the type of highly controversial issue touching on social, moral and religious policies on which there is no consensus either in Europe or, for that matter, in this jurisdiction.” He went on to emphasise the importance of not introducing uncertainty by undermining the role of the legislature. He stated that he considers “that a fair balance has been struck by the law as it presently stands until the legislature decides otherwise."
Campaigners for wider abortion access described the decision as a “betrayal” and have accused the judges of passing the buck to local politicians who are unable to agree among themselves. The Northern Ireland Human Rights Commission has confirmed it will seek leave to appeal the decision to the Supreme Court.A copy of the statement by Chief Commissioner Les Allamby is available on the Commission’s website here.
Click here for a copy of the judgement.
Click here and here for further commentary on the case.