The Court of Appeal will hear the case on 20 June 2016. The Appeal will last four days.
Who are the parties in the Appeal?
The Northern Ireland Human Rights Commission, The Department of Justice, The Attorney General.
The Commission’s position:
The Northern Ireland Human Rights Commission is challenging all appeals in the termination of pregnancy case. In November 2015, the Belfast High Court found in the Commission’s favour ruling that our current law is incompatible with human rights. The Department of Justice and Attorney General are appealing the judgment.
The Commission will cross appeal both the Department of Justice and the Attorney General. We will re-introduce all of the original grounds brought before the court. The choice of accessing a termination of pregnancy in circumstances of serious malformation of foetus (including fatal foetal abnormality), rape or incest, without being criminalised for doing so, should be made available in Northern Ireland. The Commission continues to seek a change in the law so that the human rights of women and girls are protected when facing these difficult decisions.
The Northern Ireland Human Rights Commission’s won its Judicial Review of Termination of Pregnancy Laws on 30 November 2015. The High Court held that Article 8 of the European Convention on Human Rights, the right to family and private life was breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
When did this case begin?
The Commission first initiated its judicial review of the termination of pregnancy laws in 2014.
What were the grounds of the original case?
The Northern Ireland Human Rights Commission asked the Court to declare that the current law, relating to access to termination of pregnancy services for women in cases of serious malformation of the foetus or pregnancy as a result of rape or incest, is incompatible with human rights law and results in a breach of the rights of women and girls seeking a termination of pregnancy in these circumstances.
Termination of Pregnancy in N.I
Termination of pregnancy is currently available in Northern Ireland if it is necessary to preserve the life of a woman; including where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent. The doctor must be of the opinion that the continuation of the pregnancy will be to make the woman a “physical or mental wreck”: R v. Bourne  KB 687, per Macnaghten J at 694. It is unlawful to perform a termination of pregnancy, under section 58 of the Offences against the Person Act 1861, unless on these grounds. The punishment is life imprisonment for anyone who unlawfully performs a termination.
1967 Abortion Act
The Commission is not seeking to introduce the Abortion Act 1967 in Northern Ireland and does not engage this law in this legal challenge. The Commission is seeking a change in the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest.
N.I Executive Guidance
In late March 2016 the N.I Executive issued Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland. This guidance does not change the law in that women will still be criminalised for accessing a termination in cases of a fatal foetal abnormality or sexual crime. The guidance does not take into account the judgment of Mr Justice Horner of Nov 2015.
30 November 2015- the Belfast High Court found in the Commission’s favour ruling that our current law is incompatible with human rights.
16 December 2015 -the High Court granted a Declaration of Incompatibility (DOI) under the Human Rights Act. This was based on the law prohibiting termination of pregnancy in the cases of fatal foetal abnormalities and sexual crime being a violation of women’s right to personal autonomy under Article 8 of the European Convention on Human Rights.
15-17 June 2015-Human Rights Commission’s Judicial Review of the law on termination of pregnancy was heard at the High Court in Belfast. Judgment was reserved at the close of proceedings on 17 June.
In December 2014 the Northern Ireland Human Rights Commission initiated legal proceedings against the Department of Justice as a last resort. From November 2013 the Commission had repeatedly advised the Department of Justice (DOJ) that the existing law violates the human rights of women and girls. In the Human Rights Commission’s view, the consultation published by the Department did not commit to making the changes that were necessary in law: the consultation addressed cases of lethal foetal abnormality and did not deal with serious malformation of foetus. The consultation sought public opinion on cases of sexual crime including rape and incest without putting forward proposals to change the law.
In October 2014 the Department of Justice published a public consultation on proposals to amend the criminal law on abortion to allow for termination of pregnancy in cases of lethal foetal abnormality and sought views on sexual crime. A summary of responses can be found at: https://www.dojni.gov.uk/consultations/consultation-abortion-2014
In forming its view on access to termination of pregnancy services the Commission considered the full range of internationally accepted human rights standards, including the European Convention on Human Rights, as incorporated by the Human Rights Act 1998 and the treaty obligations of the Council of Europe and the United Nations systems.
The legal case stated that Articles 3, 8 and 14 of the European Convention on Human Rights are directly engaged:
Article 3: Freedom from torture and inhuman and degrading treatment or punishment. Prohibits torture, and inhuman or degrading treatment or punishment. There are no exceptions or limitations on this right.
Article 8: Right to privacy
(1) Everyone has the right for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14: Discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
12 Feb 2016