Fact Sheet: NIHRC challenge to the law on Termination of Pregnancy in Northern Ireland

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Human Rights Commission’s challenge to the law on Termination of Pregnancy in Northern Ireland FAQ


Why did the Commission take the case?

From 2013, the Northern Ireland Human Rights Commission has continued to seek a change to the law to allow termination of pregnancies in Northern Ireland in cases of serious malformation of the foetus or pregnancy as a result of rape or incest.

In the Commission’s view the current law is incompatible with Articles 3 (Freedom from Torture), 8 (Right to Private and family life) and 14 (Non-discrimination) of the European Convention on Human Rights.

In the Commission’s view, the existing law in Northern Ireland violates the human rights of women and girls.

What is the current law in Northern Ireland on Termination of Pregnancy?

Termination of pregnancy is only 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 punishment is life imprisonment for anyone who unlawfully procures or performs a termination.

Why did the Northern Ireland Human Rights Commission take the case in its own name?

Given the significance of the case and the sensitive issues involved, the Commission took the case in its own name, recognising how difficult it would be for a woman to challenge the law in the circumstances covered by the case. This decision was made to protect women or girls, in situations of rape, incest or with a diagnosis of a serious foetal abnormality, from having to take the case on an individual basis. The Commission is able to initiate proceedings in its own name through powers set out in Justice and Security Act (NI) 2007. These amended the Commission’s powers to permit the Commission to initiate legal action without there having to be a victim.

Parties in the Appeal

Appellants: Northern Ireland Human Rights Commission

Respondent(s)

1. Northern Ireland Department of Justice

2. Attorney General for Northern Ireland

Justices who heard the Appeal

Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones.

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Interveners

1. United Nations Human Rights Council, Working Group on the issue of discrimination against women in law and in practice;

2. Humanists UK;

3. ADF International, Christian Action, Research and Education & Professor Patricia Casey;

4. Amnesty International & Sarah Ewart;

5. Centre for Reproductive Rights;

6. Family Planning Association, British Pregnancy Advisory Service, Abortion Support Network, Birthrights, Royal College of Midwives, Alliance for Choice & Antenatal Results and Choices

7. JR76;

8. Northern Bishops;

9. Society for the Protection of Unborn Children.

10. Equality and Human Rights Commission (On the question of standing only).

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What are the Issues before the Court?

(i) Does the current law in Northern Ireland violate rights?: Whether sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 are incompatible with Articles 3 (Freedom from Torture), 8 (Right to Private and family life) and 14 (Non-discrimination) of the European Convention on Human Rights (ECHR) in failing to provide an exception to the prohibition on the termination of pregnancy in Northern Ireland in cases of serious malformation of the unborn child/foetus or pregnancy as a result of rape or incest.

(ii) Does the Commission have the right to take the case in its own name without a victim?: whether the Northern Ireland Act 1998 entitles the Commission to bring proceedings under the Human Rights Act 1998 (‘HRA’), and to seek a Declaration of Incompatibility under section 4 HRA, other than in respect of an identified unlawful act or acts.

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05 Jun 2018