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Supreme Court hands down judgment in the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland).

Related Member(s):
Helen Mountfield QC, Zoë Leventhal, Anita Davies
Related Practice Area(s):
Human Rights

The Supreme Court today handed down the judgment in the case of In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland).

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 ECHR, arts 3, 8 and 14 in failing to provide an exception to the prohibition of 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.

In the judgment  the panel was divided on both questions. On the substantive compatibility issues, a majority – Lord Mance, Lord Kerr, Lord Wilson and Lady Hale – held that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 of the Convention, insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality. Lady Black agreed with that holding in the case of fatal foetal abnormality. Lord Kerr and Lord Wilson also held that it is incompatible with the right not to be subjected to inhuman or degrading treatment, guaranteed by article 3 of the Convention. Lord Reed and Lord Lloyd-Jones held that the law is not incompatible with either article 8 or article 3.

On the procedural issue, a majority – Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones – held that the NIHRC does not have standing to bring these proceedings and accordingly that this court had no jurisdiction to make a declaration of incompatibility to reflect the majority view on the compatibility issues. A minority – Lord Kerr, Lord Wilson and Lady Hale – held that the NIHRC does have standing and would have made a declaration of incompatibility.

Helen Mountfield QC, Zoe Leventhal and Anita Davies represented The United Nations Working Group on the Issue of Discrimination Against Women in Law and in Practice.