The Round-Up: NI Change in Abortion Laws, and the Lord’s Prayer Ban

30 November 2015 by Laura Profumo

Laura Profumo considers the latest human rights headlines.

In the News

The High Court in Belfast today ruled that abortion legislation in Northern Ireland is in breach of the European Convention on Human Rights. The Northern Ireland Human Rights Commission (NIHCR) brought the case to extend abortion to cases of serious foetal malformation, rape and incest.

The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In this judicial review, it was held that the grounds for abortion should be extended, though it is still to be determined whether new legislation will be required to give effect to the ruling.

The debate began in earnest in 2013, in the case of Sarah Ewart, who was forced to travel to England for an abortion after her baby was diagnosed with a critical brain condition. Despite carrying out a public consultation on changing the law to include an exemption for foetal abnormalities, the NIHRC claimed the government had not gone far enough. The NIHRC argued that forcing women to leave the jurisdiction in order to seek abortions amounted to cruel, inhuman and degrading treatment in contravention of ECHR Article 3.

Today’s ruling has been hailed as a “historic” success by NIHRC chief commissioner Less Allamby, one which “will be welcomed by many of the vulnerable women and girls who have been faced with these situations”. The Northern Ireland Assembly’s perceived failure to grasp the legislative nettle, forcing the courts to intervene, has been widely criticised. Yet there remains strong opposition within the Assembly against liberalising the abortion laws, and an appeal by the Department of Justice may well be made in the next six weeks.

Elsewhere, the media maelstrom over the Church of England advert ban continues. The 60-second cinema advert depicts a number of people from different walks of life reciting and singing the Lord’s Prayer, including a weightlifter, a gospel choir, and the Archbishop of Canterbury himself, Justin Welby. It was due to be screened throughout the UK in the next month, before viewings of the new Star Wars movie, in order to promote the launch of the Church’s new website: justpray.uk. But the advert has been pulled by Digital Cinema Media (DCM), in keeping with its policy of not showing political or religious advertising, so as to avoid offending those of “differing faiths and no faith”. The ban was issued despite the advert having been approved by the Cinema Advertising Association, and being awarded a “U” certificate by the British Board of Classification. An early day motion has now been put down in the House of Commons, urging DCM to reconsider the decision.

The Prime Minister has termed the ban “ridiculous”, whilst the Equality of Human Rights Commission expressed its concern over the express lack of legal precedent for the ban: “there is no right not to be offended in the UK”. Yet the bigger question, writes UKHRB’s own Emma Fenelon, is whether “there is anything that legally requires DCM to show the advert”, and whether the Church of England may have a cause of action. In order to mount a successful challenge, the Church would have to prove discrimination under the Equality Act, ie: that it had been treated less favourably than a comparator religious organization. Given that the DCM’s ban is a blanket one, prohibiting all political or religious advertising, there is little basis for such discrimination. Yet put simply, Giles Fraser writes in the Guardian, the debate must be reduced to the fact that “in a free society peaceful religious speech should not be banned from public spaces”. “Free religious speech is the canary in the cage of a free society”, Fraser continues: resistant secularists should accept such adverts as they would any other. The furore also raises questions over the extent to which cinemas, as private, self-regulating operations, are also accountable public institutions, subject to the same social obligations. The Church of England’s own promotional efforts are worth noting – its advert having been viewed more than half a million times online.

Whether the Church of England will pursue litigation remains to be seen. Either way, the Church has proved the subversive relevance of grace within consumer culture. The Force, it would seem, is with them.

In Other News:

• David Cameron has published his response to a foreign affairs report on airstrikes against Islamic State in Syria. Bolstered by the Paris terror attacks, and the resulting UN Security Council Resolution of 20^th November urging states to “take all necessary measures” against Islamic State, Cameron chiefly relied on the principle of legitimate self-defence to argue for military action in Syria. Article 51 of the UN charter allows countries to use military force for collective self-defence, but only where the threat to national security is imminent. Philippe Sands QC claims the memorandum “reflects aspiration rather than strategy”, failing to address key policy issues, or the absence of explicit UN security council authorization. Read Rafael Behr’s scrutiny of Cameron’s case here.

• Merris Amos offers a fine response here to professor John Finiss’ recent paper: “Judicial Power: Past, Present and Future”. Commenting on the real risk test, which is part of ECHR Article 3 jurisprudence, she claims the test is not symptomatic of “judicial law making”, as there is no evidence to suggest such a development was “outside the contemplation” of the ECHR framers.

• A mining company listed in London, African Minerals Limited, is being sued in a lucrative lawsuit over evictions and alleged violent treatment of workers and villages living near one of its mines in Sierra Leone. Leigh Day solicitors put the case before a High Court judge today, on behalf of 142 claimants. The company denies liability, claiming the English courts lack jurisdiction for events in Sierra Leone, and that it bears no responsibility for the acts of the national police.

In the Courts:

Özel and Others v Turkey:

Proceedings which failed to establish responsibility for the deaths of earthquake victims was held to be in violation of Article 2, the ECtHR ruled last week. The case concerned the deaths of the applicants’ family members, who were buried alive in the 1999 Çınarcık earthquake – one of Turkey’s deadliest to date. The Court held that the national authorities had failed to act promptly in determining the responsibilities and circumstances of the collapse of the buildings which had lead to the deaths.

 Bondavalli v Italy:

The Italian courts should have ensured respect for a father’s right of contact with his child, in accordance with Article 8, the Strasbourg court ruled last week. The case concerned the applicant’s inability to fully and freely exercise his right of contact with his son, due to negative social service reports. The Court observed that in spite of several applications made by the applicant, and a number of assessments produced by him proving he was psychologically sound, the court continued to entrust the supervision of his right of contact with the social services. The Court found in particular that the domestic courts had failed to take any appropriate measures to protect the applicant’s rights, and to account for his interests. In light of the irreparable damage done to the applicant’s relationship with his son, the ECtHR held that the domestic authorities must re-examine the applicant’s right of contact promptly, accounting for the child’s best inetests.

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