The Court concludes that in Northern Ireland:
(i) There is no general right to abortion whether under the common law or under statute.
(ii) The Northern Ireland Human Rights Commission (‘the Commission’) has legal standing under the Northern Ireland Act 1998 (‘the 1998 Act’) to bring this application seeking a declaration of incompatibility in respect of Sections 58 and 59 of the Offences against the Person Act 1861 (‘the 1861 Act’) and Section 25 of the Criminal Justice Act (NI) 1945 (‘the 1945 Act’) (hereinafter referred to as ‘the impugned provisions’).
(iii) The absence of a victim as an applicant in this judicial review is not fatal to the application.
(iv) The right to life from conception is not protected by the common law of Northern Ireland. There are certain protections for pre-natal life under various statutes.
(v) The failure to provide exceptions to the prohibition of abortion in cases of serious malformation of the foetus (‘SMF’), fatal foetal abnormality (‘FFA’) and pregnancies due to rape and incest (‘sexual crime’) to the impugned provisions does not breach Article 3 of the European Convention on Human Rights (‘the Convention’). The Commission has failed to satisfy the Court on the evidence adduced before it that the minimum level of severity required by Article 3 has been attained.
(vi) Article 8 of the Convention is breached only by the absence of exceptions to the general prohibition on abortions in the cases of:
(a) FFAs at any time; and
(b) pregnancies which are a consequence of sexual crime up to the date when the foetus becomes capable of existing independently of the mother.
For the avoidance of doubt the prohibition on child destruction under the 1945 Act does not breach Article 8.
(vii) There is no requirement to consider Article 14 given the conclusion reached in respect of Article 8 above. However, there is no breach of Article 14 in conjunction with Article 8 disclosed on the present evidence.
(viii) It may be possible to read the impugned provisions under the 1861 Act in a Convention compliant way. Alternatively, the court may be satisfied that prosecution under those provisions in respect of those circumstances set out at (vi) above would be an abuse. However, the court requires to hear the parties on these issues before it reaches a concluded view.
(ix) In the event that it is not possible to read the relevant legislative provisions in a Convention compliant way or to conclude that prosecution under those provisions in respect of the circumstances set out at (vi) above is an abuse, the court considers it appropriate and proper that a declaration of incompatibility should be made pursuant to Section 4(2) of the Human Rights Act 1998 (HRA) in respect of the impugned provisions under the 1861 Act.
[2015] NIQB 96, [2016] 2 FCR 418
Bailii
Northern Ireland
Cited by:
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
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.641770