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


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

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.