Kathryn McNeilly, Fiona Bloomer, and Claire Pierson explain the background and implications of the recent ruling which, although found Northern Ireland's abortion law to be incompatible with human rights law, dismissed the case on technical grounds

Bloomer, Fiona

McNeilly, Kathryn

Pierson, Claire

LSE Research Online

The	Supreme	Court’s	decision	on	Northern	Ireland’sabortion	law	–	what	now?Kathryn	McNeilly,	Fiona	Bloomer,	and	Claire	Pierson	explain	thebackground	and	implications	of	the	recent	ruling	which,	although	foundNorthern	Ireland’s	abortion	law	to	be	incompatible	with	human	rights	law,dismissed	the	case	on	technical	grounds.In	recent	weeks	abortion	has	been	a	highly	topical	issue	in	Ireland,	northand	south.	Following	the	referendum	decision	in	the	Republic	of	Ireland	to	repeal	the	eight	amendment	to	the	Irishconstitution,	the	spotlight	has	turned	to	Northern	Ireland.On	5	June	2018,	MPs	at	Westminster	debated	potential	decriminalisation	of	abortion	in	Northern	Ireland	throughrepeal	of	sections	58	and	59	of	the	Offences	Against	the	Person	Act	1861.	On	7	June,	the	UK	Supreme	Court	madean	important	decision	on	the	legal	framework	regulating	abortion	in	Northern	Ireland.	In	this	piece	we	overview	theSupreme	Court’s	judgment	and	our	assessment	of	the	next	steps	in	this	area.What	was	this	case	about?In	2013	the	Northern	Ireland	Human	Rights	Commission	brought	judicial	review	proceedings	challenging	thecompatibility	of	the	law	on	abortion	in	Northern	Ireland	with	UK	human	rights	commitments.	Abortion	is	currentlylawful	in	Northern	Ireland	only	in	cases	of	threat	to	life	or	a	threat	to	health	which	is	serious	and	long-term.	In	othercircumstances	abortion	remains	a	criminal	offence.The	Commission	argued	that	this	situation	violates	women’s	human	rights	in	three	circumstances:	sexual	crime	(rapeor	incest),	cases	involving	fatal	foetal	abnormality,	and	cases	involving	serious	malformation	of	the	foetus.	In	thesesituations,	the	Commission	asserted	that	prohibition	of	abortion	is	incompatible	with	rights	to	private	and	family	life(Article	8)	and	to	be	free	from	torture,	inhuman	or	degrading	treatment	(Article	3)	under	the	European	Convention	ofHuman	Rights.	This	Convention	is	integrated	into	UK	law	by	the	Human	Rights	Act	1998.In	November	2015,	the	Northern	Ireland	High	Court	heard	the	Commission’s	case	and	ruled	that	an	incompatibilitydid	exist.	Specifically,	the	Article	8	right	to	private	and	family	life	was	violated	in	the	first	of	the	two	circumstanceslisted	above	(sexual	crime	and	fatal	foetal	abnormality).	The	High	Court	made	a	declaration	of	incompatibility	whichplaced	the	onus	on	the	Northern	Ireland	Assembly	to	change	the	law	and	address	the	violation	of	rights.	This	was	ahighly	significant	move,	one	which	courts	do	not	make	very	often.This	judgment,	however,	was	appealed	and	in	June	2016	the	Northern	Ireland	Court	of	Appeal	overturned	it,	rulingthat	no	human	rights	incompatibility	exists.	The	case	was	appealed	by	the	Commission	further	to	the	UK	SupremeCourt	in	2017.	This	was	heard	in	London	in	October	2017	and	judgment	was	delivered	on	7	June	2018.What	did	the	Supreme	Court	decide?A	majority	of	the	Supreme	Court	determined	that	an	Article	8	(right	to	private	and	family	life)	incompatibility	does	existregarding	prohibition	of	abortion	in	cases	of	fatal	foetal	abnormality	and	sexual	crime.	A	minority	of	the	SupremeCourt	(two	judges	out	of	seven)	also	found	the	law	to	be	incompatible	with	Article	3	(right	to	be	free	from	torture,inhuman	or	degrading	treatment)	in	these	circumstances.Despite	the	decision	on	incompatibility,	however,	the	Court	ultimately	did	not	find	in	the	Northern	Ireland	HumanRights	Commission’s	favour.	The	reason	for	this	was	that	the	Commission,	in	the	view	of	the	Court,	does	not	havelegal	standing	to	bring	the	case.	This	conclusion	stemmed	from	a	reading	of	the	Northern	Ireland	Act	1998,	whichcreated	the	Commission’s	powers,	and	the	Human	Rights	Act	1998’s	provisions	for	who	can	bring	a	case	under	it.Summarising	this	point,	Lord	Mance	commented	that,	‘Parliament	did	not	provide	for	the	Commission	to	havecapacity	to…	bring	“abstract”	proceedings,	in	relation	to	interpretation	of	United	Kingdom	primary	legislation	in	someway	affecting	Northern	Ireland	or	its	supposed	incompatibility	with	any	Convention	right.’British Politics and Policy at LSE: The Supreme Court’s decision on Northern Ireland’s abortion law – what now? Page 1 of 3		Date originally posted: 2018-06-09Permalink: http://blogs.lse.ac.uk/politicsandpolicy/supreme-court-on-ni-abortion-law/Blog homepage: http://blogs.lse.ac.uk/politicsandpolicy/A	minority	of	judges	disagreed	with	this	assessment.	Three	judges	read	the	relevant	law	to	state	that	theCommission	did	have	competence	to	bring	the	case.	Nevertheless,	as	a	result	of	the	majority’s	finding	on	standing,the	Supreme	Court	could	not	offer	relief	in	the	case.	This	means	that	a	declaration	of	incompatibility	requiring	changeto	the	law	has	not	been	made.What	will	happen	next?This	Supreme	Court	case	goes	further	than	the	original	High	Court	decision	which	found	incompatibility	under	Article8	only	(as	above,	a	minority	in	the	Supreme	Court	also	found	incompatibility	with	Article	3)	and	the	Northern	IrishCourt	of	Appeal	which	found	no	violation.	In	terms	of	next	steps,	the	Supreme	Court’s	comments	on	incompatibilityshould	inform	ongoing	debate	in	Westminster	in	the	absence	of	a	devolved	Assembly	at	Stormont.This	was	indeed	acknowledged	by	Lord	Kerr	in	the	oral	presentation	of	the	judgment,	who	stated	that	‘this	Court	hasexpressed	the	clear	view	that	the	law	on	abortion	in	Northern	Ireland	is	incompatible	[with	human	rights]’	in	the	twocircumstances	identified,	despite	overall	dismissal	of	the	case.	In	her	judgment,	Lady	Hale	also	stressed	that	the	roleof	the	judiciary	in	the	debate	on	reform	should	not	be	marginalised.	She	commented	that,	‘this	is	not	a	matter	onwhich	the	democratic	legislature	enjoys	a	unique	competence.	It	is	a	matter	of	fundamental	human	rights	on	which,difficult	though	it	is,	the	courts	are	as	well	qualified	to	judge	as	is	the	legislature.’It	is	possible	that	further	legal	action	may	be	taken	by	a	direct	victim	of	the	incompatibility	at	hand.	This	might	includeplans	to	take	a	case	which	may	eventually	reach	the	European	Court	of	Human	Rights	if	a	domestic	remedy	cannotbe	found.	This	Court,	based	in	Strasbourg,	is	the	adjudicative	body	for	the	European	Convention	on	Human	Rights.Judgments	of	the	European	Court	are	binding	on	the	UK	Government,	and	this	Court	has	found	violations	of	Articles8	and/or	3	in	cases	of	restrictive	frameworks	for	abortion	in	other	European	countries.	If	such	a	case	is	taken	thiswould	be	the	first	time	that	this	body	has	considered	the	legal	framework	for	abortion	in	Northern	Ireland.It	is	important	not	to	underestimate	the	significance	of	the	Supreme	Court	case	despite	a	declaration	ofincompatibility	not	being	made.	This	is	the	first	case	considering	Northern	Irish	abortion	law	in	substantive	terms,	andidentifying	a	human	rights	incompatibility.	Read	alongside	the	recent	Irish	referendum,	a	report	from	the	UN	CEDAWCommittee	determining	that	the	current	law	on	abortion	leads	to	grave	and	systematic	violations	of	internationalhuman	rights	law,	and	debate	on	decriminalisation	in	Westminster,	it	adds	to	the	wider	political	landscape	ondiscussion	of	potential	reform	to	this	area	of	law.________About	the	AuthorsKathryn	McNeilly	is	Lecturer	in	the	School	of	Law	at	Queen’s	University	Belfast.		Fiona	Bloomer	is	Lecturer	in	Social	Policy	at	Ulster	University.		Claire	Pierson	is	Lecturer	in	Politics	at	the	University	of	Liverpool.			All	articles	posted	on	this	blog	give	the	views	of	the	author(s),	and	not	the	position	of	LSE	British	Politics	and	Policy,nor	of	the	London	School	of	Economics	and	Political	Science.British Politics and Policy at LSE: The Supreme Court’s decision on Northern Ireland’s abortion law – what now? Page 2 of 3		Date originally posted: 2018-06-09Permalink: http://blogs.lse.ac.uk/politicsandpolicy/supreme-court-on-ni-abortion-law/Blog homepage: http://blogs.lse.ac.uk/politicsandpolicy/	British Politics and Policy at LSE: The Supreme Court’s decision on Northern Ireland’s abortion law – what now? Page 3 of 3		Date originally posted: 2018-06-09Permalink: http://blogs.lse.ac.uk/politicsandpolicy/supreme-court-on-ni-abortion-law/Blog homepage: http://blogs.lse.ac.uk/politicsandpolicy/

The Supreme Court's decision on Northern Ireland's abortion law - what now?

Kathryn McNeilly, Fiona Bloomer and Claire Pierson explain the background and implications of the recent ruling which, although found Northern Ireland’s abortion law to be incompatible with human rights law, dismissed the case on technical grounds

The	Supreme	Court’s	decision	on	Northern	Ireland’sabortion	law	–	what	now?Kathryn	McNeilly,	Fiona	Bloomer	and	Claire	Pierson	explain	the	background	and	implications	of	the	recentruling	which,	although	found	Northern	Ireland’s	abortion	law	to	be	incompatible	with	human	rights	law,	dismissedthe	case	on	technical	grounds.The	UK	Supreme	Court.	©	UK	Supreme	CourtIn	recent	weeks	abortion	has	been	a	highly	topical	issue	in	Ireland,	north	and	south.	Following	the	referendumdecision	in	the	Republic	of	Ireland	to	repeal	the	eight	amendment	to	the	Irish	constitution,	the	spotlight	has	turned	toNorthern	Ireland.On	5	June	2018,	MPs	at	Westminster	debated	potential	decriminalisation	of	abortion	in	Northern	Ireland	throughrepeal	of	sections	58	and	59	of	the	Offences	Against	the	Person	Act	1861.	On	7	June,	the	UK	Supreme	Courtmade	an	important	decision	on	the	legal	framework	regulating	abortion	in	Northern	Ireland.	In	this	piece	weoverview	the	Supreme	Court’s	judgment	and	our	assessment	of	the	next	steps	in	this	area.What	was	this	case	about?In	2013	the	Northern	Ireland	Human	Rights	Commission	brought	judicial	review	proceedings	challenging	thecompatibility	of	the	law	on	abortion	in	Northern	Ireland	with	UK	human	rights	commitments.	Abortion	is	currentlylawful	in	Northern	Ireland	only	in	cases	of	threat	to	life	or	a	threat	to	health	which	is	serious	and	long-term.	In	othercircumstances	abortion	remains	a	criminal	offence.The	Commission	argued	that	this	situation	violates	women’s	human	rights	in	three	circumstances:	sexual	crime(rape	or	incest),	cases	involving	fatal	foetal	abnormality,	and	cases	involving	serious	malformation	of	the	foetus.	Inthese	situations,	the	Commission	asserted	that	prohibition	of	abortion	is	incompatible	with	rights	to	private	andfamily	life	(Article	8)	and	to	be	free	from	torture,	inhuman	or	degrading	treatment	(Article	3)	under	the	EuropeanConvention	of	Human	Rights.	This	Convention	is	integrated	into	UK	law	by	the	Human	Rights	Act	1998.In	November	2015,	the	Northern	Ireland	High	Court	heard	the	Commission’s	case	and	ruled	that	an	incompatibilitydid	exist.	Specifically,	the	Article	8	right	to	private	and	family	life	was	violated	in	the	first	of	the	two	circumstanceslisted	above	(sexual	crime	and	fatal	foetal	abnormality).	The	High	Court	made	a	declaration	of	incompatibility	whichplaced	the	onus	on	the	Northern	Ireland	Assembly	to	change	the	law	and	address	the	violation	of	rights.	This	was	ahighly	significant	move,	one	which	courts	do	not	make	very	often.Democratic Audit: The Supreme Court’s decision on Northern Ireland’s abortion law – what now? Page 1 of 3		Date originally posted: 2018-06-12Permalink: https://www.democraticaudit.com/2018/06/12/the-supreme-courts-decision-on-northern-irelands-abortion-law-what-now/Blog homepage: https://www.democraticaudit.com/This	judgment,	however,	was	appealed	and	in	June	2016	the	Northern	Ireland	Court	of	Appeal	overturned	it,	rulingthat	no	human	rights	incompatibility	exists.	The	case	was	appealed	by	the	Commission	further	to	the	UK	SupremeCourt	in	2017.	This	was	heard	in	London	in	October	2017	and	judgment	was	delivered	on	7	June	2018.What	did	the	Supreme	Court	decide?A	majority	of	the	Supreme	Court	determined	that	an	Article	8	(right	to	private	and	family	life)	incompatibility	doesexist	regarding	prohibition	of	abortion	in	cases	of	fatal	foetal	abnormality	and	sexual	crime.	A	minority	of	theSupreme	Court	(two	judges	out	of	seven)	also	found	the	law	to	be	incompatible	with	Article	3	(right	to	be	free	fromtorture,	inhuman	or	degrading	treatment)	in	these	circumstances.Despite	the	decision	on	incompatibility,	however,	the	Court	ultimately	did	not	find	in	the	Northern	Ireland	HumanRights	Commission’s	favour.	The	reason	for	this	was	that	the	Commission,	in	the	view	of	the	Court,	does	not	havelegal	standing	to	bring	the	case.	This	conclusion	stemmed	from	a	reading	of	the	Northern	Ireland	Act	1998,	whichcreated	the	Commission’s	powers,	and	the	Human	Rights	Act	1998’s	provisions	for	who	can	bring	a	case	under	it.Summarising	this	point,	Lord	Mance	commented	that,	‘Parliament	did	not	provide	for	the	Commission	to	havecapacity	to…	bring	“abstract”	proceedings,	in	relation	to	interpretation	of	United	Kingdom	primary	legislation	insome	way	affecting	Northern	Ireland	or	its	supposed	incompatibility	with	any	Convention	right.’A	minority	of	judges	disagreed	with	this	assessment.	Three	judges	read	the	relevant	law	to	state	that	theCommission	did	have	competence	to	bring	the	case.	Nevertheless,	as	a	result	of	the	majority’s	finding	on	standing,the	Supreme	Court	could	not	offer	relief	in	the	case.	This	means	that	a	declaration	of	incompatibility	requiringchange	to	the	law	has	not	been	made.What	will	happen	next?This	Supreme	Court	case	goes	further	than	the	original	High	Court	decision	which	found	incompatibility	underArticle	8	only	(as	above,	a	minority	in	the	Supreme	Court	also	found	incompatibility	with	Article	3)	and	the	NorthernIrish	Court	of	Appeal	which	found	no	violation.	In	terms	of	next	steps,	the	Supreme	Court’s	comments	onincompatibility	should	inform	ongoing	debate	in	Westminster	in	the	absence	of	a	devolved	Assembly	at	Stormont.This	was	indeed	acknowledged	by	Lord	Kerr	in	the	oral	presentation	of	the	judgment,	who	stated	that	‘this	Courthas	expressed	the	clear	view	that	the	law	on	abortion	in	Northern	Ireland	is	incompatible	[with	human	rights]’	in	thetwo	circumstances	identified,	despite	overall	dismissal	of	the	case.	In	her	judgment,	Lady	Hale	also	stressed	thatthe	role	of	the	judiciary	in	the	debate	on	reform	should	not	be	marginalised.	She	commented	that,	‘this	is	not	amatter	on	which	the	democratic	legislature	enjoys	a	unique	competence.	It	is	a	matter	of	fundamental	human	rightson	which,	difficult	though	it	is,	the	courts	are	as	well	qualified	to	judge	as	is	the	legislature.’It	is	possible	that	further	legal	action	may	be	taken	by	a	direct	victim	of	the	incompatibility	at	hand.	This	mightinclude	plans	to	take	a	case	which	may	eventually	reach	the	European	Court	of	Human	Rights	if	a	domestic	remedycannot	be	found.	This	Court,	based	in	Strasbourg,	is	the	adjudicative	body	for	the	European	Convention	on	HumanRights.	Judgments	of	the	European	Court	are	binding	on	the	UK	Government,	and	this	Court	has	found	violations	ofArticles	8	and/or	3	in	cases	of	restrictive	frameworks	for	abortion	in	other	European	countries.	If	such	a	case	istaken	this	would	be	the	first	time	that	this	body	has	considered	the	legal	framework	for	abortion	in	Northern	Ireland.It	is	important	not	to	underestimate	the	significance	of	the	Supreme	Court	case	despite	a	declaration	ofincompatibility	not	being	made.	This	is	the	first	case	considering	Northern	Irish	abortion	law	in	substantive	terms,and	identifying	a	human	rights	incompatibility.	Read	alongside	the	recent	Irish	referendum,	a	report	from	the	UNCEDAW	Committee	determining	that	the	current	law	on	abortion	leads	to	grave	and	systematic	violations	ofinternational	human	rights	law,	and	debate	on	decriminalisation	in	Westminster,	it	adds	to	the	wider	politicallandscape	on	discussion	of	potential	reform	to	this	area	of	law.	This	article	gives	the	views	of	the	author,	not	the	position	of	Democratic	Audit.	It	first	appeared	on	the	LSE’s	BritishPolitics	and	Policy	blog.Democratic Audit: The Supreme Court’s decision on Northern Ireland’s abortion law – what now? Page 2 of 3		Date originally posted: 2018-06-12Permalink: https://www.democraticaudit.com/2018/06/12/the-supreme-courts-decision-on-northern-irelands-abortion-law-what-now/Blog homepage: https://www.democraticaudit.com/About	the	authorsKathryn	McNeilly	is	Lecturer	in	the	School	of	Law	at	Queen’s	University	Belfast.		Fiona	Bloomer	is	Lecturer	in	Social	Policy	at	Ulster	University.		Claire	Pierson	is	Lecturer	in	Politics	at	the	University	of	Liverpool.	Similar	PostsHow	democratic	is	the	UK’s	basic	constitutional	law?The	Irish	Citizens’	Assembly	on	the	8th	Amendment	is	a	model	for	participatory	democracy,	which	otherdemocratic	countries	should	followIreland	votes	to	repeal	the	8th:	will	Northern	Ireland	be	next	to	liberalise	its	abortion	laws?Repeal	the	8th	amendment	to	allow	abortion	in	Ireland	–	this	constitutional	experiment	has	failedCritical	actors	and	abortion	law:	a	group	of	individuals	in	Northern	Irish	politics	obstructs	changeDemocratic Audit: The Supreme Court’s decision on Northern Ireland’s abortion law – what now? Page 3 of 3		Date originally posted: 2018-06-12Permalink: https://www.democraticaudit.com/2018/06/12/the-supreme-courts-decision-on-northern-irelands-abortion-law-what-now/Blog homepage: https://www.democraticaudit.com/

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The Supreme Court’s decision on Northern Ireland’s abortion law – what now?

http://eprints.lse.ac.uk/90777/1/McNeilly_The-Supreme-Court%27s-decision.pdf

The Supreme Court's decision on Northern Ireland's abortion law - what now?

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