The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson dissenting) The Commission did not have standing, and a declaration could not be made. The Court did however consider the law, and a majority thought the current law was disproportionate and was incompatible with Article 8 to the extent that that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.
Lady Hale said: ‘It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn – it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman – that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under the both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two.’
Lady Hale, President, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones
[2018] UKSC 27, [2018] NI 228, 46 BHRC 1, [2019] 1 All ER 173, [2018] HRLR 14
Bailii, Bailii Summary, Supreme Court, SC Summary, SC Summary Video, SC Video 2017 Oct 24am, SC 2017 Oct 24 pm Video, SC Video 2017 Oct 25 am, SC 2017 Oct 25 pm Video, SC 2017 Oct 26 am Video, SC 2017 Oct 26 pm Video
Offences Against the Person Act 1861 58 59, Criminal Justice Act (NI) 1945 25(1), European Convention on Human Rights 8 14, Northern Ireland Act 1998
Northern Ireland
Citing:
Appeal from – The Attorney General for Northern Ireland and Another v The Northern Ireland Human Rights Commission CANI 29-Jun-2017
Appeal by the Attorney General and Department of Justice against an Order declaring that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with Article 8 of ECHR insofar as it is an offence:
(i) to procure a . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – In Re Northern Ireland Human Rights Commission Northern Ireland HL 20-Jun-2002
The coroner intended to hold an inquest into the deaths on the Omagh bombing. The Commission sought the right to be involved on the basis that human rights of interest to it might arise, and the coroner refused, saying that they had no standing to . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Family Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety CANI 8-Oct-2004
A termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Klass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Stubing v Germany ECHR 12-Apr-2012
‘. . in cases arising from individual applications it is not the Court’s task to examine domestic legislation in the abstract. Rather, it must examine the manner in which the relevant legislation was applied to the applicant in the particular . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Regina v Secretary of State for Home Department ex parte Chahal Admn 22-Oct-1997
. .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Cited – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Gafgen v Germany ECHR 1-Jun-2010
(Grand Chamber) The claimant said that police treatment during his interview had amounted to torture.
Held: The Salduz principles were not restricted to the failure to provide access to a lawyer during interview. There is no clear consensus . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – RR v Poland ECHR 26-May-2011
The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not . .
Cited – Ilhan v Turkey ECHR 27-Jun-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (victim); Preliminary objection dismissed (non-exhaustion); No violation of Art. 2; Violation of Art. 3; Violation of Art. 13; . .
Cited – Tysiac v Poland ECHR 16-Mar-2007
The complainant complained about the failure to afford her an abortion in circumstances where she had an understandable fear that giving birth would lead to her losing her already poor sight, leading to a further six-months of pregnancy and a . .
Cited – P and S v Poland ECHR 30-Oct-2012
P aged 14 became pregnant due to rape, evidenced by bruises. Polish law permitted an abortion in such circumstances, but the reality of its practical implementation was in striking discordance with the theoretical right. P was given contradictory . .
Cited – Open Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
Cited – Opuz v Turkey ECHR 9-Jun-2009
The applicant alleged, in particular, that the State authorities had failed to protect her and her mother from domestic violence, which had resulted in the death of her mother and her own ill-treatment. . .
Cited – Attorney General v X 5-Mar-1992
(Supreme Court of Ireland) Refusal of abortion following a rape . .
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Egmez v Cyprus ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; No violation of Art. 5-1; No violation of Art. 5-2; No violation of Art. 5-3; No violation of Art. 5-4; Violation of Art. 13; No separate issue . .
Cited – Gafgen v Germany ECHR 30-Jun-2008
(Fifth Section) The claimant said that having been arrested by police, their treatment of him amounted to torture.
Held: Iit was not necessary to rule on the Government’s preliminary objection of non-exhaustion of domestic remedies. It held, . .
Cited – Krastanov v Bulgaria ECHR 30-Sep-2004
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 3; Violation of Art. 6-1; Not necessary to examine P1-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Mayeka and Mitunga v Belgium ECHR 12-Oct-2006
A five-year-old child was detained by the Belgian authorities in an immigration centre.
Held: The court assessed the impact of the treatment on the applicant, stating that her position was: ‘characterised by her very young age, the fact that . .
Cited – Wiktorko v Poland ECHR 31-Mar-2009
. .
Cited – Mouvement Raelien Suisse v Switzerland ECHR 13-Jan-2011
The applicant association alleged that the banning of its posters by the Swiss authorities had breached its right to freedom of religion and its right to freedom of expression, as guaranteed by Articles 9 and 10 of the Convention respectively. . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Nada v Switzerland (GC) ECHR 12-Sep-2012
(Grand Chamber) ‘The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right . .
Cited – Sufi and Elmi v The United Kingdom ECHR 28-Jun-2011
The risk of the applicants being subjected to treatment which would violate article 3 if returned to Somalia meant that the British authorities would be in breach of the article if they carried through their intention to deport them to that country. . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited by:
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.617206
