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Supreme Court rules that Northern Ireland abortion law clashes with human rights but dismisses challenge on technical grounds

In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (NI) [2018] UKSC 27

Related Member(s):
Helen Mountfield QC, Zoë Leventhal, Anita Davies
Related Practice Area(s):
Healthcare, Mental Health and Mental Capacity, Civil Liberties and Human Rights

This appeal considered whether the Offences against the Person Act 1861, ss 58 and 59 and the Criminal Justice Act (NI) 1945, s 25 are incompatible with the ECHR, arts 3, 8 and 14 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. It also considered whether the Northern Ireland Act 1998 entitles the appellant to bring proceedings under the Human Rights Act 1998, and to seek a declaration of incompatibility under s 4, other than in respect of an identified unlawful act or acts.

The Supreme Court dismissed the appeal by a majority. The majority considered that the Northern Ireland Human Rights Commission did not have standing to bring the proceedings, and as such the Court did not have jurisdiction to make a declaration of incompatibility. This is because, though the Commission need not be a victim in instituting human rights proceedings under the Northern Ireland Act 1998, s 71(2B) and (2C), there must be a specific, identifiable actual or potential victim of an unlawful act to which the proceedings relate.

Though a s 4 declaration of incompatibility was not open to the Court having decided it had no jurisdiction, it nonetheless considered the point. A majority of the Supreme Court held that the current law in Northern Ireland is disproportionate and incompatible with ECHR, art 8 insofar as it prohibits abortion in cases of fatal foetal abnormality, and pregnancy as a result of rape or incest, though only a minority considered that the law is incompatible with art 3.

Helen Mountfield QC, Zoe Leventhal and Anita Davies were involved in this case.