The Northern Ireland Human Rights Commission challenged the compatibility of the current law on abortion in Northern Ireland with Article 3 (torture and of inhuman or degrading treatment), Article 8 (respect for private and family life) and Article 14 (discrimination) ECHR, insofar as the law prohibits abortion in cases of (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. The decision of the Northern Ireland Court of Appeal was further appealed to the Supreme Court.
A majority of the Court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones) dismissed the appeal on the ground that the NIHRC did not have standing to bring the proceedings. The court did not, therefore, have jurisdiction to make a declaration of incompatibility in this case. Lady Hale, Lord Kerr and Lord Wilson dissented.
A majority (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) does, however, consider the current law in Northern Ireland disproportionate and incompatible with Article 8 ECHR insofar as it prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. Lady Black joins that majority on (a) but not on (b) or (c). A minority (Lord Reed, Lady Black on (b) and (c) and Lord Lloyd-Jones) considers that it is not possible to conclude in the abstract, in proceedings of the present nature (as distinct from individual applications), that the current law is disproportionate or incompatible with Article 8. A majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones) concludes that the current law, in the abstract, is not incompatible with Article 3 ECHR. A minority (Lord Kerr and Lord Wilson) disagrees and considers that it is incompatible. Lady Hale expresses sympathy with the view expressed by Lord Kerr but does not consider it necessary to decide on incompatibility in relation to Article 3 in light of her decision on Article 8.
[Prepared from the Court’s press release: we hope to post a considered summary based on the judgments in due course.]