In the sequel to his judgment in Northern Ireland Human Rights Commission, Re Judicial Review  NIQB 96, Horner J has concluded that the current abortion law in Northern Ireland does not provide adequate protection for the human rights of pregnant women where there is a serious malformation of the foetus or a fatal foetal abnormality or where the pregnancy is the result of rape or incest – and is therefore in breach of Article 8 ECHR (private and family life) and incompatible with the Human Rights Act 1998.
In his earlier judgment he had asked the parties to make further submissions on whether the current legislation could be read in a Convention-compliant way and whether prosecution would be an abuse; and he ruled that if it proved impossible 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.
According to the report in the Belfast Telegraph His Lordship told this morning’s hearing at Belfast High Court:
“There is near unanimity among the parties in this judicial review, and that includes the [Northern Ireland Human Rights] Commission, that for this court to try and read the impugned provisions in a Convention-compliant way would be a step too far. Having given due consideration to all submissions and the arguments raised therein, I conclude that such a view is correct. Accordingly, as indicated in my judgment, and for the reasons set out in that judgment and as a matter of last resort, I make a declaration of incompatibility.”
Where we go from here is not at all clear. A declaration of incompatibility is just that: a declaration. It does not strike down the offending law; and it will be for the Northern Ireland Executive and Assembly to make the necessary changes to make the law Convention-compliant. But since the Assembly has voted several times in the past two years not to make any change, a legislative solution seems unlikely. It also remains to be seen whether or not the Executive will appeal the decision and, if so, what the outcome will be.