Northern Ireland abortion law: declaration of incompatibility

In the sequel to his judgment in Northern Ireland Human Rights Commission, Re Judicial Review [2015] 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.”

Comment

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.

11 thoughts on “Northern Ireland abortion law: declaration of incompatibility

        • That’s not an easy question. First, there would presumably have to be a decision that was subject to judicial review – and whether or not a simple refusal by the NI Assembly to legislate would be reviewable is a very moot point. Secondly, in order for a claim before the ECtHR to be admissible, the applicant must first have exhausted domestic remedies: see Article 35 §1: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken”.

          But that assumes that there are domestic remedies to exhaust and a “final decision” to start the clock ticking; and recently, in Károly Nagy v Hungary [2015] ECHR 1051 the Second Section concluded that, though he had not got very far, Mr Nagy had taken the step to exhaust domestic remedies that could be reasonably expected in the circumstances [32].

          In short, it’s all very unclear. Perhaps someone with a better grasp than mine of the procedure of the ECtHR might throw some light on your question.

    • No: surely there’s a misunderstanding here. The Executive and the Assembly are not non-secular: there’s no establishment of religion in Northern Ireland. It’s society in Northern Ireland that seems to be non-secular: and the only way to change that is by persuasion. If that’s what the majority of voters (or, at any rate, of Unionist voters) want, it’s difficult to see what can be done.

  1. Frank, You are, of course, entirely right. Although the Executive and the Assembly are freely elected, the tribal loyalties to Catholicism and Protestantism makes it inevitable that the membership of those bodies are motivated by religious dogma. It happens that the Protestants are mainly of a sect which also has a less than helpful attitude to abortion. Perhaps a charity which helps women escape the province to secure the required medical help will have to suffice until Northern Ireland joins the rest of the UK in the 21st century.
    Alan Rogers

    • I suspect it will: but, of course, that’s not good enough. I suppose that, in a sense, what the Northern Irish do is a matter for the Northern Irish; but – to take the extreme case – I can see no good reason why a woman from England, Scotland or Wales who happens to be resident in Northern Ireland should have to travel to GB to have an abortion because she has, in effect, forfeited her rights as a citizen of the United Kingdom because of that residence.

      There remains what I regard a serious problem with human rights compliance in relation to the devolved administrations. If someone takes a case to Strasbourg it will be HMG that carries the can, not the Scottish Government, the Northern Ireland Executive or the Welsh Government. So the law in those jurisdictions needs to be Convention-compliant; and, however unpopular it may be to suggest it, if a devolved administration refuses to legislate in order to ensure Convention compliance on a particular issue, then in my view Westminster should exercise its default power to impose a solution.

      But, of course, that’s not going to happen in a month of Sundays.

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