Northern Ireland's abortion law violates human rights, Supreme Court rules – but challenge rejected on technical grounds

Court says commission does not have standing to bring proceedings – but calls current ban ‘untenable’ and warn their findings must not be ignored

May Bulman
Social Affairs Correspondent
Thursday 07 June 2018 19:22
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Scenes between the DUP's Sammy Wilson and Conservative Anna Soubry in the Commons

Supreme Court judges have said Northern Ireland‘s abortion law violates human rights, but rejected a challenge brought by the Northern Ireland Human Rights Commission (NIHRC) on technical grounds.

Judges ruled that the country’s ban on abortions in cases of sexual crime and fatal foetal abnormalities was incompatible with human rights legislation – but said the organisation did not have “standing” to win the case.

Human rights groups and politicians have warned that the UK government could not ignore the ruling, however, and said it must bring forward legislation as a matter of urgency.

The ruling follows the Republic of Ireland’s referendum on abortion, which saw 66 per cent of voters back lifting the ban in that country.

The NIHRC argued in their challenge that the current law subjects women to “inhuman and degrading” treatment, causing “physical and mental torture” in violation of the European Convention on Human Rights (ECHR).

The court ruled that the NIHRC did not have standing to bring these proceedings as it was not itself a victim, and therefore the court was unable to make a declaration of incompatiblity – but the Justices warned that their findings should not be ignored by legislators.

Supreme Court Justice Mance held that the “present legislative position in Northern Ireland is untenable”, and the current law “clearly needs radical reconsideration”.

Lord Mance also stated that “those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights” should consider amending the law as early as possible, “in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would … obtain a declaration of incompatibility in relation to the 1861 Act.”

The court heard from a number of those who had been affected by the near-total abortion ban in Northern Ireland, including Denise Phelan, who discovered early in her pregnancy that her baby would not survive, but had to continue the pregnancy until she was induced, five days after her baby had died.

Judges also heard that a “frightened and distressed” girl under the age of 13 who was raped by a family member was forced to travel to England for an abortion.

In response to the ruling, NIHRC’s chief commissioner Les Allamby said: ”The Commission took this case to support and protect women and girls in Northern Ireland and we will continue to do this by whatever means we can. There is a much greater open public debate about the issue and the need for reform.

“The law now needs to change to stop women and girls from further anxiety and suffering. In the absence of the NI Executive and Assembly it falls to the UK government to make this change and it must act without delay.

“The Commission is disappointed that the court did not support the arguments that we had sufficient powers to take the case in our own name. We acted in this way in order prevent any woman or girl from having to face the burden of doing so.

“One issue all the judges agreed on was that the current law in Northern Ireland is deeply unsatisfactory. As a result, it is clear we need to bring our own laws on termination into compliance with human rights standards.”

Corey Stoughton, advocacy director for Liberty, echoed these sentiments, saying the ruling left the UK government “out of excuses”.

She added: ”While the case was dismissed, women’s groups may have lost the battle but they are winning the war.

“The Supreme Court has unequivocally recognised that the criminalisation of abortion is an appalling human rights abuse. Westminster must act now to decriminalise abortion across the United Kingdom and grant basic bodily autonomy to the women of Northern Ireland.”

Labour’s shadow attorney general, Shami Chakrabarti, said: “The Supreme Court’s decision was made on a technicality, but the court has made clear that abortion laws in Northern Ireland violate fundamental human rights and has called for a radical reconsideration of the law.

“The government cannot ignore this ruling and cannot continue to turn a blind eye to this injustice, which denies women in Northern Ireland their fundamental rights, upheld across the rest of the UK.”

Nola Leach, chief executive of Christian public policy charity CARE, welcomed the decision, saying: “It should be for the people of Northern Ireland, through their elected representatives, to determine Northern Ireland’s abortion law.”

Earlier this week, MPs called for reform of abortion law during an impassioned debate in Westminster about the continuing ban. Labour backbencher Stella Creasy urged parliament to consider repealing the two sections of the Offences Against the Person Act of 1861 which criminalise “procuring the miscarriage of any women”.

The Walthamstow MP asked for a bill to be brought to the house within 150 days, as she told the Commons: “This is a statement of intent. We want deeds, not just words. The women of Northern Ireland, indeed the women of England and Wales, deserve modern abortion law.”

Penny Mordaunt, minister for women and equalities, said MPs had sent a message to Northern Ireland’s politicians that if they do not act on the issue, “We will”.

Karen Bradley, the Northern Ireland secretary, said she personally backed abortion reform – but argued that the Northern Ireland Assembly must be restored to consider the issue.

Northern Ireland has been without an executive since January 2017, when the governing parties the Democratic Unionist Party (DUP) and Sinn Féin split in a bitter row over a flawed green energy scheme.

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