Media By: Jake Richards


Supreme Court rules on challenge to abortion ban in Northern Ireland

11 June 2018 by Jake Richards

supreme courtIn the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27

On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.

The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.

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 Background

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.

Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Categories


UKHRB on Twitter


Law Pod UK on Twitter


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Free email updates


Enter your email address to subscribe to this blog for free and receive notifications of new posts by email.

Join 74,875 other subscribers

%d bloggers like this: