Re Northern Ireland Human Rights Commission's Application for Judicial Review

JurisdictionNorthern Ireland
CourtQueen's Bench Division (Northern Ireland)
Judgment Date2015
Neutral Citation[2015] NIQB 96
Date30 November 2015
1
Neutral Citation No. [2015] NIQB 96 Ref:
HOR9740
Judgment: approved by the Court for handing down Delivered:
30/11/2015
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
2014 No. 125661/01
The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
BY THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION
IN THE MATTER OF THE LAW ON TERMINATION OF PREGNANCY
IN NORTHERN IRELAND
_________
FRAMEWORK OF JUDGMENT Paragraphs of Judgment
A. EXECUTIVE SUMMARY [1]
B. INTRODUCTION [2]-[7]
C. THE APPLICATION FOR JUDICIAL REVIEW [8]
D. BACKGROUND FACTS [9]-[17]
E. THE LAW ON ABORTION IN NORTHERN IRELAND [18]-[23]
F. EVIDENCE IN RESPECT OF TERMINATION OF
PREGNANCIES OF NORTHERN IRELAND WOMEN [24]-[34]
G. MARGIN OF APPRECIATION [35]-[56]
H. EUROPEAN CONSENSUS [57]-[58]
I. INTERNATIONAL OBLIGATIONS [59]-[71]
J. LEGAL STANDING [72]-[81]
2
K. THE REQUIREMENT OF A VICTIM [82]-[89]
L. THE EFFECT OF THE CONVENTION [90]-[95]
M. ARTICLE 2 AND THE RIGHT TO LIFE [96]-[109]
N. ARTICLE 3 [110]-[121]
O. ARTICLE 8 [122]-[165]
P. ARTICLE 14 [166]-[172]
Q. RELIEF [173]-[182]
R. CONCLUSION [183]-[184]
3
HORNER J
[1] The Court concludes that in Northern Ireland:
(i) There is no general right to abortion whether under the common law
or under statute.
(ii) The Northern Ireland Human Rights Commission (“the Commission”)
has legal standing under the Northern Ireland Act 1998 (“the 1998
Act”) to bring this application seeking a declaration of incompatibility
in respect of Sections 58 and 59 of the Offences against the Person Act
1861 (“the 1861 Act”) and Section 25 of the Criminal Justice Act (NI)
1945 (“the 1945 Act”) (hereinafter referred to as “the impugned
provisions”).
(iii) The absence of a victim as an applicant in this judicial review is not
fatal to the application.
(iv) The right to life from conception is not protected by the common law of
Northern Ireland. There are certain protections for pre-natal life under
various statutes.
(v) The failure to provide exceptions to the prohibition of abortion in cases
of serious malformation of the foetus (“SMF”), fatal foetal abnormality
(“FFA”) and pregnancies due to rape and incest (“sexual crime”) to the
impugned provisions does not breach Article 3 of the European
Convention on Human Rights (“the Convention”). The Commission
has failed to satisfy the Court on the evidence adduced before it that
the minimum level of severity required by Article 3 has been attained.
(vi) Article 8 of the Convention is breached only by the absence of
exceptions to the general prohibition on abortions in the cases of:
(a) FFAs at any time; and
(b) pregnancies which are a consequence of sexual crime up to the
date when the foetus becomes capable of existing independently
of the mother.
For the avoidance of doubt the prohibition on child destruction under
the 1945 Act does not breach Article 8.
(vii) There is no requirement to consider Article 14 given the conclusion
reached in respect of Article 8 above. However, there is no breach of

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3 cases
  • R (A and Another) v Secretary of State for Health
    • United Kingdom
    • Supreme Court
    • 14 June 2017
    ...caused by sexual crime has been upheld in the High Court of Northern Ireland and is subject to appeal: In re Northern Ireland Human Rights Commission's Application for Judicial Review [2015] NIQB 96, [2016] 2 FCR 418. But, irrespective of the ultimate outcome of those proceedings, the far ......
  • Heidi Crowter v Secretary of State for Health and Social Care
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 23 September 2021
    ...foetal deficiency”. 91 Mr Coppel also relies on what was said by Horner J in NIHRC when that case was in the Northern Ireland High Court: [2015] NIQB 96. At para. 69, Horner J said that there was “an illogicality in calling for no discrimination against those children who are born suffering......
  • R Philippe George Newby v The Secretary of State for Justice
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 November 2019
    ...questions. We are grateful to both parties for their short, written submissions on the points to be derived from those cases. 45 In [2015] NIQB 96 Horner J held that sections 58 and 59 of the Offences Against the Person Act 1861 were incompatible with Article 8 insofar as they criminalised ......
1 books & journal articles
  • Advocating Abortion Rights in Northern Ireland
    • United Kingdom
    • Social & Legal Studies Nbr. 25-6, December 2016
    • 1 December 2016
    ...Judicial Review by the Northern Ireland Human Rights Commission in the Matter of the Law on Termination of Pregnancy in Northern Ireland[2015] NIQB 96. In the Matter of an Application by the Family Planning Association of Northern Ireland Judicial Review [2003] NIQB 48. In re White [2000] N......

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