Whose womb is it anyway? NI Court shrinks from abortion law reform

The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  [2017] NICA 42 (29 June 2017) – read judgment

Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times.  The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.

Let me start with a much quoted proposition derived from Strasbourg law.

when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.

Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:

the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.

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Defying convention: Supreme Court puts Sewel on the sidelines

unknownIn the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.

Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.

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The private lives of child rioters

Derry riotsIn the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42

Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?

It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.

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The Long Shadow of the Troubles

Photo: The Guardian

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.

 

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“Imprecise” injunctions against Facebook unenforceable, says NI judge

Facebook-from-the-GuardianJ19 and Another v Facebook Ireland [2013] NIQB 113 – read judgment

The High Court in Northern Ireland has chosen to depart from the “robust” Strasbourg approach to service providers and their liability for comments hosted on their sites. Such liability, said the judge, was not consonant with the EC Directive on E-Commerce.

This was an application on behalf of the defendant to vary and discharge orders of injunction dated 27 September 2013 made in the case of both plaintiffs. One of the injunctions  restrained “the defendant from placing on its website photographs of the plaintiff, his name, address or any like personal details until further order.” These interim injunctions were awarded pursuant to writs issued by the plaintiffs for damages by reason of  the publication of photographs, information and comments on the Facebook webpages entitled “Irish Blessings”, “Ardoyne under Siege” and “Irish Banter” on 11 September 2013 and on subsequent dates. Continue reading

What do *you* think is the way forward for human rights in Northern Ireland?

Good Friday Agreement

Good Friday Agreement

Advice on a Bill of Rights for Northern Ireland, submitted to the Secretary of State by the Northern Ireland Human Rights Commission in 2008, was roundly rejected by the UK government in 2009 and there seems to be little appetite within the Northern Ireland Office for revisiting the issue in the foreseeable future.

In London, the coalition government’s Commission on a UK Bill of Rights, set up in 2011, reported in 2012 but could not suggest an agreed way forward on a UK basis. In Scotland, on the other hand, bearing in mind the forthcoming referendum on independence in 2014, there is renewed interest in whether legislation should be passed by the Scottish Parliament to guarantee a range of social and economic rights. The Republic of Ireland, for its part, is currently re-examining its Constitution and has recently voted in a referendum to enhance the protection of children’s rights.

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Bill of Rights: the Northern Irish dimension

One of the main human rights debates of the General Election is whether the Human Rights Act 1998 will be replaced with or bolstered by an American-style Bill of Rights. One aspect of the debate which has been mostly ignored in the British media has been the impact which a Bill of Rights would have in Northern Ireland.

In November 2009, the Northern Ireland Office published A Bill of Rights For Northern Ireland: Next Steps, an interim report proposing that a separate Bill of Rights be drafted for Northern Ireland, on the basis that:

The need for an additional human rights framework that reflects the particular circumstances of Northern Ireland was recognised in the Belfast Agreement and given shape through the commitment to set up a Bill of Rights Forum as part of the St Andrews Agreement… The fundamental principle of mutual respect for the rights and freedoms of all the people of Northern Ireland has been at the heart of this progress, and still has a crucial role to play in its future success.

The Northern Irish Human Rights Commission responded in February, welcoming the proposal to produce a separate Bill of Rights. However, the Commission was sharply critical of the tone and content of the substantive proposals. Amongst other things, it accused the proposal of failing to take appropriate account of international standards and of suggesting that existing human rights standards are actually lowered.

The Committee for the Administration of Justice (CAJ), an independent human rights organisation, have also recently published their own response to the interim report, and have also argued that the proposals are too weak and do not go far enough in increasing human rights protections. CAJ say:

A Bill of Rights is one of the final parts of the human rights jigsaw; it ensures that rights currently enjoyed cannot be taken away at the whim of any government. It is intended to ensure, in a divided society, that whoever exercises governance over this disputed ground cannot rule without respecting the rights of everyone who lives here. It also ensures that those who are not or do not identify primarily as part of the two main communities will have their rights respected also.

The Bill of Rights for Northern Ireland is clearly in its early planning stages, and may not go ahead at all. That said, it is more advanced than English and Scottish proposals, which, if they ever happen, will certainly not do so until long after the Election.

Read more:

  • Well informed posts on the topic on the Human Rights in Ireland Blog can be found here, here, here, here, here and here
  • Relatedly, the Chair of the Scottish Human Rights Commission writes in the Guardian about the Bill of Rights and his fears that it may create a “two-tier” system