In the matter of an application by The Northern Ireland Human Rights Commission for Judicial Review - In the matter of the failure by the Secretary of State, Executive Committee and Minister of Health to provide women with access to Abortion and Post Abortion Care in All Public Health Facilities in Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Judgment Date | 14 October 2021 |
| Neutral Citation | [2021] NIQB 91 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 14 October 2021 |
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Neutral Citation No: [2021] NIQB 91
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: COL11619
ICOS No: 2020/89333/01
Delivered: 14/10/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY THE NORTHERN IRELAND
HUMAN RIGHTS COMMISSION FOR JUDICIAL REVIEW
IN THE MATTER OF THE FAILURE BY THE SECRETARY OF STATE,
EXECUTIVE COMMITTEE AND MINISTER OF HEALTH
TO PROVIDE WOMEN WITH ACCESS TO ABORTION AND
POST ABORTION CARE IN ALL PUBLIC HEALTH FACILITIES
IN NORTHERN IRELAND
________
David Blundell QC appeared with Yaaser Vanderman for the applicant
(instructed by the Northern Ireland Human Rights Commission)
Peter Coll QC appeared with Philip McAteer for the Secretary of State
(instructed by the Crown Solicitor’s Office)
Paul McLaughlin QC appeared with Emma McIlveen for the Department of Health
(instructed by the Departmental Solicitor’s Office)
Tony McGleenan QC appeared with Laura Curran for the Executive Committee
(instructed by the Departmental Solicitor’s Office)
________
COLTON J
Introduction
[1] This claim relates to the ongoing vexed issue of the provision of abortion
services in Northern Ireland.
[2] The court is grateful to counsel for their written and oral submissions which
were extremely helpful to the court.
[3] The court is also obliged to the written submissions prepared by Ms Monye
Anyadake-Danes QC and Jude Bunting instructed by Phoenix Law on behalf of
Amnesty International and Informing Choices NI. The court also benefited from a
written submission from the Attorney General for Northern Ireland, Brenda King.
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[4] Pursuant to leave granted by the court the applicant submitted an affidavit
from “NAH”. The deponent was a woman in her mid-40s, married with 4 children,
2 of whom were very young. She works full-time with children. She sets out how
the lack of abortion services available to her in Northern Ireland affected her. The
lack of a commissioned service in Northern Ireland, the fact that the relevant Trust in
her area was no longer providing a service and her inability to travel because of the
Covid restrictions resulted in her resorting to an unregulated service over the
internet for early medical abortion pills. She avers:
“From my experience, I was struck by how lucky I was
that I had a supportive husband, that my financial
circumstances were such that I could pay for early
medical abortion pills and that I did not have any
difficulties once I had taken them. Nonetheless, having
to deal with this unexpectedly and at short notice was
extremely stressful and I do wonder what it would be
like for other women facing different circumstances. I felt
that it was deeply unfair that I could not access a service
because of where I lived and that I had to go through this
without local clinical support and ready access to
after-care services if needed.”
[5] The applicant is the Northern Ireland Human Rights Commission, a body
corporate established pursuant to section 68 of the Northern Ireland Act 1998 with
the functions of promoting, educating, litigating, reviewing and advising on human
rights issues. Under section 7A of the Withdrawal Act 2018, inserted by the EU
(Withdrawal Agreement) Act 2020, Parliament has implemented Article 2(2) of the
Northern Ireland Protocol whereby “the United Kingdom shall continue to facilitate the
related work of the institutions and bodies set up pursuant to the 1998 Agreement, including
the Northern Ireland Human Rights Commission … in upholding rights and equality
standards.”
[6] The Commission describes this claim as a “sequel” to Re Northern Ireland
Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 where
the UK Supreme Court considered, inter alia, that the current abortion law in
Northern Ireland was disproportionate and incompatible with Article 8 of the
European Convention on Human Rights (ECHR) in so far as it prohibited abortion in
cases of fatal foetal abnormality and where pregnancy resulted from rape or incest.
[7] Notwithstanding that judgment and the enactment by the UK Parliament of
the Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”) which
permits comprehensive abortion services in Northern Ireland there is still no formal
commissioning for State organised abortion services for pregnant women and girls
in Northern Ireland.
[8] In these proceedings the applicant challenges the failure of:
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(a) The Secretary of State for Northern Ireland to ensure, pursuant to
powers under the 2019 Act that women are provided with abortion
and post abortion care in all public health facilities expeditiously and
that relevant guidance is provided; and
(b) The Executive Committee and Minister of Health to agree, commission
and fund abortion and post abortion care in all public health facilities
expeditiously and to provide relevant guidance.
Legal Background
Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”)
[9] The 2019 Act received Royal Assent on 24 July 2019. By that time there had
been no functioning Executive Committee in Northern Ireland for approximately
two and a half years. The essential policy behind the Act was to provide a legislative
means for further extension of the timeframe permissible under law for the
formation of a new Executive Committee without the need to call a new election to
the Northern Ireland Assembly. During the Parliamentary process amendments
were tabled to the Act which were accepted by the government that resulted in what
became section 9 of the Act.
[10] Section 13(4) of the 2019 Act provides:
“13. Extent, commencement and short title
…
(4) Sections 8 to 12 come into force on 22 October 2019,
unless an Executive in Northern Ireland is formed on or before
21 October 2019 (in which case they do not come into force at
all).”
An Executive Committee was not formed until January 2020.
[11] Section 9 of the 2019 Act imposed specific duties on the Secretary of State in
relation the provision of abortion and post abortion services in Northern Ireland. It
came into force on 22 October 2019. It provides as follows:
“9 Abortion etc: implementation of CEDAW
recommendations
(1) The Secretary of State must ensure that the
recommendations in paragraphs 85 and 86 of the
CEDAW report are implemented in respect of Northern
Ireland.
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