The High Court in Belfast has held today, in Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 96, that the abortion legislation in Northern Ireland is in breach of Article 8 ECHR (private and family life). The Northern Ireland Human Rights Commission sought a declaration that the rights of women in Northern Ireland who are pregnant and where there is a serious malformation of the foetus [SMF] (including where there is a fatal foetal abnormality [FFA]) or where the pregnancy is the result of rape and/or incest are breached by sections 55 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) Act 1945^. Consequently, it sought a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 in respect of the 1861 and 1945 Acts.

Horner J asked the parties to make further submissions on whether the legislation could be read in a way compliant with the Convention and whether prosecution would be an abuse. He said that in the event that it was not possible to achieve those outcomes it would be appropriate and proper for the Court to make a declaration of incompatibility under the Human Rights Act 1998. However, he made it very clear in his judgment that the case was not about a general right to abortion:

“There is no right to abortion in Northern Ireland except in certain carefully defined and limited circumstances. The Commission has made it clear that it does not seek to establish such a general right. This application is about whether the failure to provide certain limited exceptions to the ban on abortion in Northern Ireland, namely in cases where there is an SMF, including an FFA, or where the pregnancy is a consequence of sexual crime is in compliance with the rights enjoyed by all citizens of Northern Ireland under the European Convention on Human Rights.”

Nor did he find the law in breach of Article 3 (prohibition of torture):

“There is no convincing evidence before me that there are victims or potential victims within any of the three categories which are the subject of this application, who are able to satisfy the minimum threshold of severity necessary to allow a Court to conclude that there has been a breach of their Article 3 rights.”

He was, however, doubtful that the situation would be remedied by legislation in the foreseeable future:

“The unavoidable inference from the inaction of the Department [of Justice] 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.”

This brief note is based on a NI Court Service summary. We hope to post a considered note on the case when the judgment becomes available.