The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.
This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office  EWCA Civ 723 could be profound for our electoral law.
If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust  EWCA Civ 2832.
The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.
In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.
Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.
The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.
These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:
The prohibition of abortion in cases of
Serious malformation of the foetus;
Pregnancy as a result of rape; and/or
Pregnancy as a result of incest
was argued to be incompatible with
Article 3 (the prohibition of torture and of inhuman or degrading treatment);
Article 8 (the right of everyone to respect for their private and family life); and/or
Article 14 (the prohibition of discrimination)
In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:
Fatal foetal abnormality
Rape up to the date when the foetus is capable of being born alive
Incest up to the date when the foetus is capable of being born alive
The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.
The NIHRC appealed to the Supreme Court in London.
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