Human Rights Commission Comments Ahead of NI Assembly Debating Termination of Pregnancy Laws
10 February 2016
On 30 November 2015, the Northern Ireland Human Rights Commission won its Judicial Review of Termination of Pregnancy Laws. The Court held that Article 8 of the European Convention on Human Rights, the right of women to family and private life was breached in Northern Ireland by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
The Commission therefore welcomes the Assembly debating proposed amendments to the Justice No. 2 Bill that address termination of pregnancy in some, but not all, of the circumstances before the court. This is an opportunity for the Assembly to exercise its power and bring the law into line with human rights as directed by the court.
The Chief Commissioner, Les Allamby set out that:
“We would welcome the outstanding issues being resolved politically. However, if the Northern Ireland Assembly fails to act today in accordance with the court judgement, then our elected representatives will have missed an opportunity to address ongoing human rights violations. They will have neglected the fundamental rights of vulnerable women and girls facing the most difficult circumstances, when they could have resolved the situation. Human rights are often relied on in political debates. Today will be measure of how committed our politicians are to protecting human rights in practice.”
The Department of Justice and Attorney General have appealed the ruling of Mr Justice Horner. The Commission will once again be in court this Friday, when a date will be set for the appeal hearing.
The Chief Commissioner has stated that:
“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, including the circumstances of serious malformation of the foetus. 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 vulnerable women and girls are protected.”
FACTS OF THE CASE
1. The Judgment:
Led to the granting of a ‘declaration of incompatibility’ that the existing legislation is contrary to human rights in the specific circumstances of this ruling. This would require the Northern Ireland Assembly to legislate to change the law and the current law would stand until the Assembly did so.
2. In the Current Interim Period:
In the absence of legislation from the Northern Ireland Assembly, the law as it stands won’t change until all appeals are concluded. It may go through to the Supreme Court in London.
The Commission was successful in its Judicial Review on Northern Irelands Termination of Pregnancy Law. The case was taken against the Department of Justice. The Attorney General for Northern Ireland was also a notice party in the case. The judgment was delivered on 30 November 2015 in Belfast High Court. Access the full judgment here
The High Court held that Article 8 of the European Convention on Human Rights, the right of women to family and private life is breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
The Court confirmed there is neither a general right to abortion nor the protection of the right to life under the common law in Northern Ireland. It held that the failure to provide exceptions to the prohibition of termination in cases of serious foetal abnormality is also not contrary to the European Convention on Human Rights.
3. What were the grounds of the 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 including fatal foetal abnormalities of the foetus or pregnancy as a result of rape or incest, was 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 is only 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.
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10 Feb 2016