In 2018 the Northern Ireland Human Rights Commission brought an abstract challenge to the abortion legislation then in force. A majority concluded that the Commission lacked standing. The Court therefore could not declare the law incompatible, although a differently constituted majority expressed views about its impact under article 8.
The Commission challenged provisions of the Offences against the Person Act 1861 and the Criminal Justice Act (Northern Ireland) 1945 as they operated at the time. It relied on articles 3, 8 and 14 of the European Convention on Human Rights in cases involving foetal abnormality, rape or incest. The Department of Justice and the Attorney General disputed its power to bring proceedings without an individual victim.
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Standing
A majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones) held that the Commission lacked standing. Sections 69 and 71 of the Northern Ireland Act 1998 permit the Commission to institute or intervene in human rights proceedings only where there is or would be a victim of an unlawful act by a public authority within the Human Rights Act 1998. An abstract challenge to the compatibility of primary legislation, without alleging any such unlawful act, was outside that power. The legislative history, including amendments following an earlier decision of the House of Lords, showed that Parliament had not authorised a general challenge of this kind. Lady Hale, Lord Kerr and Lord Wilson dissented. They considered that section 69(5)(b) gave the Commission power to seek a declaration of incompatibility under section 4 of the Human Rights Act without identifying a specific victim or unlawful act.
The majority conclusion meant that the Court had no jurisdiction to grant a declaration. The substantive arguments had nevertheless been fully heard, and the justices set out the conclusions they would have reached.
Article 8
It was accepted that the prohibition interfered with pregnant women’s and girls’ article 8 rights. The issue was justification. The unborn are not rights-holders under the Convention, but the community has a moral interest in protecting unborn life, which must be balanced against the pregnant woman’s autonomy and health.
Lord Mance would have held the interference disproportionate, and the law incompatible with article 8, where it prohibits abortion in cases of fatal foetal abnormality, rape and incest, but not in cases of serious non-fatal foetal abnormality. In fatal abnormality there is no viable life to protect, and the suffering of being required to continue the pregnancy is not justified. In rape and incest the invasion of autonomy is especially grave. The possibility of travelling to Great Britain does not cure the disproportion: it imposes trauma, expense and indignity on those who can travel and leaves others without a remedy. Lady Hale, Lord Kerr and Lord Wilson agreed with that conclusion on article 8. Lady Black agreed only in relation to fatal foetal abnormality. Those justices did not regard the Assembly’s consideration of reform, or such evidence as there was of public opinion, as requiring the Court to withhold its view.
Lord Reed and Lord Lloyd-Jones would not have found the legislation incompatible with article 8. They considered that the sensitive moral questions were principally for democratic determination in Northern Ireland, that an abstract challenge faced a high hurdle, and that the European Court’s decision in A, B and C v Ireland was a significant guide. They noted, however, that individual violations might occur if existing arrangements continued.
Article 3
Lord Kerr and Lord Wilson would also have held the law incompatible with article 3 in the same three situations, on the basis that it created a real risk of inhuman or degrading treatment and engaged the state’s positive obligations. Lady Hale accepted that some women would suffer severely enough to cross the article 3 threshold, but thought it unnecessary to decide the point. Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones rejected a general finding of incompatibility with article 3. The threshold is high and fact-specific; the legislation was not shown to be bound to produce breaches in a legally significant number of cases.
Verdict: The Court dismissed the appeal and answered the referred standing questions in the negative. No declaration of incompatibility was made. A majority nevertheless considered that the law then in force was incompatible with article 8 in cases of rape, incest and fatal foetal abnormality.
