The Supreme Court has ruled that it does not have jurisdiction to determine whether Northern Ireland’s ban on abortion breaches human rights.
Abortion is unlawful in Northern Ireland unless necessary to save the life of a woman. In Re Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27, the Northern Ireland Human Rights Commission contended that a ban where the pregnancy resulted from rape, incest or involved fatal foetal abnormality is incompatible with the European Convention on Human Rights.
The Supreme Court held by a 4-3 majority that the Commission did not have the legal standing necessary to bring the proceedings. Consequently, the court could not make a formal declaration of incompatibility and therefore the government is not obliged to change the law.
However, a 4-3 majority also held on the substantive issues that the current law in Northern Ireland is incompatible with Art 8 of the Convention, respect for private and family life.
On the subject of whether the Commission had standing to bring the case, Lord Mance, giving judgment, said: ‘In summary, the present proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it.
‘First and fundamentally, as regards sections 58 and 59 of the [Offences Against the Person Act1861], this is because they were brought to challenge the compatibility with the Convention rights of UK primary legislation, which by statutory definition is not a complaint about any act which is unlawful under the HRA or indeed otherwise. Secondly, although this would not have resolved the first objection if they had been, the proceedings were not, in fact, brought by reference to any particular alleged “victim” of any such incompatibility, and this remains the case although evidence has subsequently been adduced about a number of specific cases.
‘In these circumstances, I would uphold the respondents’ objection to the Commission’s pursuit of these proceedings, and answer the questions raised by the Attorney General of Northern Ireland’s reference in the negative.’
Concluding her judgment, Lady Hale, President of the Supreme Court, said: ‘We need to be clear about what the current law requires of women in this context.
‘It is not less than that they cede control of their bodies to the edict of legislation passed (in the case of the 1861 Act) more than 150 years ago and (in the case of the 1945 Act) almost 75 years ago. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country.
‘They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality or have been the victims of rape or incest, they are condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement?’
