The Northern Ireland Court of Appeal has allowed the appeal by the Attorney General, John Larkin QC, against the Order made by Horner J at first instance in which he held that the abortion law in Northern Ireland was incompatible with the UK’s obligations under the Human Rights Act 1998 in the circumstances where the foetus was diagnosed with a fatal foetal abnormality or where the pregnancy was the result of rape or incest. It quashed the declaration and concluded, by a majority, that the Court should not intervene in what was a matter for the Northern Ireland Assembly to decide.

The current law

The current law in Northern Ireland is ss 58 and 59 Offences Against the Person Act 1861:

“58. Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable [to be imprisoned] for life [or to be fined or both].

59. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any women, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable [to be imprisoned for five years] [or to be fined or both].”

in addition, s 25 Criminal Justice Act (Northern Ireland) 1945, as amended, provides that:

“25. (1) Subject as hereafter in this sub-section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to [imprisonment] for life [or a fine or both].

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.”

The judgment at first instance

In Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 96 , Horner J reviewed the current state of abortion law in Northern Ireland and concluded at [1] that:

(i) There was no general right to abortion whether under the common law or under statute.

(ii) The Northern Ireland Human Rights Commission had legal standing under the Northern Ireland Act 1998 to bring an application for a declaration of incompatibility in respect of ss 58 and 59 of the Offences against the Person Act 1861 and s 25 of the Criminal Justice Act (NI) 1945 (“the impugned provisions”).

(iii) The absence of a victim as an applicant in the judicial review was not fatal to the application.

(iv) The right to life from conception was not protected by the common law of Northern Ireland: there were certain protections for pre-natal life under various statutes.

(v) The failure to provide exceptions to the prohibition of abortion in cases of serious malformation of the foetus (“SMF”), fatal foetal abnormality (“FFA”) and pregnancies due to rape and incest (“sexual crime”) to the impugned provisions did not breach Article 3 ECHR (inhuman or degrading treatment).

(vi) Article 8 (private and family life) was breached only by the absence of exceptions to the general prohibition on abortions in the cases of:

(a) FFAs at any time; and

(b) pregnancies that were a consequence of sexual crime up to the date when the foetus became capable of existing independently of the mother.

For the avoidance of doubt, the prohibition on child destruction under the 1945 Act did not breach Article 8.

(vii) There was no requirement to consider Article 14, given the conclusion reached in respect of Article 8 above; however, there was no breach of Article 14 in conjunction with Article 8 disclosed on the evidence before the Court.

(viii) It might be possible to read the impugned provisions under the 1861 Act in a Convention-compliant way: alternatively, the Court might be satisfied that prosecution under those provisions in respect of those circumstances set out at (vi) above would be an abuse. However, the court required to hear the parties on those issues before it reached a concluded view.

(ix) In the event that it was not possible to read the relevant legislative provisions in a Convention-compliant way or to conclude that prosecution under those provisions in respect of the circumstances set out at (vi) above was an abuse, the Court considered it appropriate and proper that a declaration of incompatibility should be made, pursuant to Section 4(2) of the Human Rights Act 1998 in respect of the impugned provisions under the 1861 Act.

Having heard further submissions from the parties, in a subsequent judgment – Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 102 – Horner J declared that there was “near unanimity among the parties in this judicial review, and that includes the Commission” that for the Court to try and read the impugned provisions in the two statutes in a Convention-compliant way would be “a step too far”. He` made the requested declaration of incompatibility and the Attorney later announced that he would appeal and oral arguments were heard in June 2016.

The judgment of the Court of Appeal

In Attorney General for Northern Ireland & Anor v Northern Ireland Human Rights Commission [2017] NICA 42, the main focus of the discussion was on Article 8: a qualified right, subject to exceptions that are in accordance with law and necessary in a democratic society, for the protection of morals or for the protection of the rights and freedoms of others.

In England and Wales an abortion can lawfully be performed under the Abortion Act 1967 where the doctor, after discussion with the pregnant woman, is satisfied that the risk to her health is greater if she proceeds with the pregnancy than if she were to have a termination and she indicates that she wishes to terminate the pregnancy. In Northern Ireland, the present position is that a termination cannot be performed in such circumstances either within the NHS or privately. This interference by the state in the entitlement of the woman to choose the medical treatment she desires has been considered by the ECtHR as an interference with the right to private life protected by Article 8.

The appellants placed considerable reliance on the decision of the ECtHR in A, B and C v Ireland (a case involving three Irish women who travelled to Great Britain for an abortion), in which the ECtHR held that the Article 8 rights of the women were engaged but the interference by the state was justified as being “in accordance with the law and necessary in a democratic society for one of the legitimate aims”. That was principally because the ECtHR had afforded the Republic of Ireland a wide margin of appreciation on the protection of the rights of the unborn due to the “profound moral views of the Irish people as to the nature of life” and the right to life being guaranteed under the Irish Constitution from the date of conception.

The three Court of Appeal judges each reached a separate determination on the question of whether the Northern Ireland abortion legislation breached Article 8.

Morgan LCJ did not consider that A, B and C v Ireland was of decisive advantage to the appellants because the overriding principle was that each jurisdiction had a wide margin of appreciation in determining sensitive legal and moral issues and the judgment could not be interpreted as requiring such protection for women [74]. The appellants submitted that the issues should be left to be dealt with by the legislative process in Northern Ireland, referring to the Assembly debate on 10 February 2016 which had rejected by 59 votes to 40 an amendment exempting from the provisions of the 1861 Act and the 1945 Act an abortion where a registered medical practitioner had diagnosed a foetal abnormality which was likely to be fatal [75].

Citing Lord Bingham in R (Countryside Alliance) v Attorney General & Anor [2007] UKHL 52, who declared at [45] that “The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament”, the Lord Chief Justice said that he was conscious of the need for judicial restraint in dealing with issues of moral and political judgment:

“In light of the wide margin of appreciation recognised by the European jurisprudence and the decisive vote within the Assembly I do not consider that it is open to the courts to derive a right to abortion from the Convention. I would not, therefore, make a declaration of incompatibility and would allow the appeal on that issue” [76].

He further considered that it was within the remit of the court to look at the Bourne judgment [R v Bourne [1939] 1KB 687, approved in the NI Court of Appeal in Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 37] to determine whether the phrase “for the purpose of preserving the life of the mother” could be interpreted in a reasonable sense in today’s circumstances. The position of women in society some 80 years after Bourne had altered beyond all recognition and was still evolving [78]: he concluded that the phrase could not in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she would be a physical or mental wreck:

“In my opinion that requires the court to determine what is reasonably tolerant in today’s society. That is not to be defined by the values of the 1930s. I conclude that the circumstances such as those described in [the affidavits submitted to the Court of Appeal] fall within scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on those women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus” [79].

Gillen LJ did not agree with the Lord Chief Justice’s approach to interpreting the legislation and Bourne to permit abortions to be lawful in specific circumstances. His view was that it was

“institutionally inappropriate and a reach too far for this Court to change the effect of the relevant legislation and its interpretation in R v Bourne which has stood the test of time in this jurisdiction without legislative intervention. Such a change is not a task that should be taken by this Court” [92].

Gillen LJ felt that the real issue was with Article 8(2) ECHR, which sets out the circumstances in which the state can interfere with the exercise of a person’s Article 8 rights:

“A state should enjoy a margin of appreciation on this issue whilst at the same time recognising that it does not confer absolute discretion or freedom of action. In the instant case, the issue of 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. Such an issue requires Parliament to be allowed a wide margin of judgment. The imposition of personal opinions of professional judges in matters of this kind lacks constitutional legitimacy. Courts should not make decisions freighted with the individual attitudes of the judiciary” [108].

He concluded that a fair balance had been struck by the law as it presently stood until the legislature decided otherwise.

Weatherup LJ also disagreed with the Lord Chief Justice’s view that the legislation might be interpreted in a manner that would permit the additional grounds for termination of pregnancy by redefining the meaning of “unlawful” in the 1861 Act and held that it was for the Assembly to determine whether to amend the legislation:

“The scope of unlawful conduct, as stated in Bourne, has been applied in Northern Ireland since that ruling. It has formed the basis of the statement of the legal position on abortion set out by this Court in recent times. It has informed the consideration of the issue of termination of pregnancy in consultation papers and in the deliberations of the Assembly. It should not be reinterpreted by the Court after 80 years. The appropriate forum for amendment of the 1861 Act is the Assembly, although any such amendment has been rejected to date. The Court has power to consider the compatibility of the present legal arrangements with the ECHR but the outworking of any finding of incompatibility would involve further consideration by the Assembly in relation to remedial action” [125].

It was clear that the prohibition on termination of pregnancy when sought for reasons of health and/or wellbeing might amount to “interference” with the right to respect for the private life of a woman contrary to Article 8(1) and the essential question was whether the interference was unjustified under Article 8(2). The burden was on the state to justify the restrictions imposed [148]. He was inclined to the view that the restriction on the termination of pregnancy in cases of fatal foetal abnormality and as a result of rape and incest would amount to a breach of Article 8. He noted, however, that the evidence in the present case did not establish that the restrictions were justified, either on the ground of establishing a rational connection or a fair balance, and that there had also been a failure to establish a fair balance of individual rights and interests and public rights and interests [175].

In respect of the termination of pregnancy in the case of serious malformation of the foetus, Weatherup LJ said that he would be inclined to the provisional view that it might not amount to a breach of the right to respect for private life, because the restriction might be capable of justification where it advanced the public interest in preventing discrimination against disability. Again, there remained an absence of evidence-based justification for the treatment of cases of serious foetal abnormality [176].

On the issue of whether the word “unlawfully” in the 1861 Act could be “read down” in accordance with s. 3 Human Rights Act 1998 so that it might be given effect in a way that is compatible with Convention rights, he concluded that that was not possible:

“The proposed categories require definition and conditions, an exercise that would involve much more than may be achieved by this interpretive requirement. The existing legal framework has given rise to litigation over the guidelines that should be issued by the relevant Department and generated much debate. That process would be further complicated by what I consider would amount to judicial redrafting of the legislation” [177].

Nor was it constitutionally appropriate for the Court to intervene “at this stage” [178].

Postscript: the Westminster Government’s announcement

On the same day, the BBC reported that, in advance of a vote on the issue in the House of Commons, the Chancellor of the Exchequer announced that women from Northern Ireland will be able to obtain terminations on the NHS in England. They currently have to pay for terminations to be carried out privately, and by a 3-2 majority, the Supreme Court upheld that position in R (A and B) v Secretary of State for Health [2017] UKSC 41: we noted it here.