Re Termination of Pregnancy Law

JurisdictionNorthern Ireland
CourtCourt of Appeal (Northern Ireland)
JudgeHorner J,Morgan LCJ,Gillen,Weatherup LJJ
Judgment Date29 June 2017
Neutral Citation[2017] NICA 42
Date29 June 2017

([2015] NIQB 96 and [2015] NIQB 102)

([2017] NICA 42)

Northern Ireland, High Court, Queen's Bench Division

High Court, Queen's Bench Division.

Court of Appeal.

(Horner J)

(Morgan LCJ; Gillen and Weatherup LJJ)

Re Application by the Northern Ireland Human Rights Commission for Judicial Review (Law on Termination of Pregnancy in Northern Ireland) 1

Attorney General for Northern Ireland and Another
and
Northern Ireland Human Rights Commission

Human rights — Rights of women in Northern Ireland — Right to personal autonomy — Rights of unborn child — Right to life — Prohibition of inhuman or degrading treatment — Right to respect for private and family life — European Convention on Human Rights, 1950 — Northern Ireland abortion laws — Prohibition of abortion except where woman's life threatened or where permanent serious risk to her well-being — Failure to provide exceptions to prohibition in cases of serious malformation of foetus, fatal foetal abnormality and pregnancies due to rape and incest — Whether any ill-treatment under Article 3 of Convention reaching minimum level of severity — Scope of Article 8 of Convention — Whether interference with rights of women — Whether in accordance with law — Whether legitimate aim — Whether necessary in democratic society — Whether means employed proportionate to legitimate aim — Whether law on abortion in Northern Ireland compatible with Articles 3 and 8 of Convention — Section 4(2) of Human Rights Act 1998 — Whether declaration of incompatibility necessary

Relationship of international law and municipal law — Treaties — Interpretation — Application — Effect — European Convention on Human Rights, 1950 — Unincorporated treaties — Effect in Northern Ireland law — Good Friday Agreement — Northern Ireland Act 1998 — Incorporation of European Convention into Northern Ireland law — Northern Ireland abortion laws — Prohibition of abortion — Northern Ireland abortion laws failing to provide exceptions to prohibition of abortion in cases of serious malformation of foetus, fatal foetal abnormality and pregnancies due to rape and incest — State having wide margin of appreciation — Moral views of Northern Irish people — Role of courts and legislature — Whether law on abortion in Northern Ireland compatible with Articles 3 and 8 of Convention — Section 4(2) of Human Rights Act 1998 — Whether declaration of incompatibility necessary

Treaties — Interpretation — Application — Effect in domestic law — European Convention on Human Rights, 1950, Articles 3 and 8 — Vienna Convention on the Law of Treaties, 1969, Article 31(1) — Object and purpose of treaty — Protection of individual human rights — Maintenance and promotion of ideals and values of democratic society — Democracy presupposing pluralism, tolerance and broadmindedness — Margin of appreciation — Moral views of Northern Irish people — Role of courts and legislature — Effect of unincorporated treaties in domestic law — Whether law on abortion in Northern Ireland compatible with Articles 3 and 8 of European Convention — Section 4(2) of Human Rights Act 1998 — Whether declaration of incompatibility necessary — The law of Northern Ireland

Summary:2The facts:—The applicant, the Northern Ireland Human Rights Commission (“the Commission”), brought an application for a declaration of incompatibility under Section 4(2) of the Human Rights Act 1998 with respect to Northern Ireland's abortion laws. It claimed that Sections 58 and 59 of the Offences Against the Person Act 1861 (“the 1861 Act”) and Section 25(1) of the Criminal Justice Act (NI) 1945 (“the 1945 Act”) (together “the impugned provisions”)3 were incompatible with Articles 3,4

85 and 146 in conjunction with Article 8 of the European Convention on Human Rights, 1950 (“the Convention”).

In Northern Ireland abortion was a criminal offence punishable by a maximum sentence of life imprisonment. It was only permitted “in cases where a woman's life is threatened or where there is a permanent serious risk to her well-being”. The impugned provisions failed 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/or incest (“sexual crime”). On 17 October 2013, the Director of Public Prosecutions clarified that it was not a crime to assist a woman to go elsewhere in the United Kingdom for a termination of a pregnancy that would be unlawful in Northern Ireland. Following the amended Abortion Act 1967, Great Britain had a more liberal regime in respect of abortion than Northern Ireland.

Judgment of the High Court (30 November 2015)

Held:—The impugned provisions did not breach Article 3 of the Convention but they did breach Article 8 of the Convention.

(1) The completion of the incorporation of the European Convention on Human Rights, 1950 into Northern Ireland law had been provided for in the Good Friday Agreement.7 That agreement was followed by the Northern Ireland Act 1998, Section 6(2)(c) of which made it clear that it was outside the legislative competence of the Assembly to pass any provisions which were incompatible with any of the Convention rights. The people of Northern Ireland had been assured that their human rights as enshrined in the Convention would be protected under the new constitutional settlement (paras. 51–4).

(2) The Convention had to be interpreted in accordance with the international law rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties, 1969. Article 31(1) of the Vienna Convention provided for interpretation in good faith, in accordance with the ordinary meaning of the terms in their context and in light of the treaty's object and purpose. An independent judiciary free from political influence was to rule on whether any impugned provision was Convention compliant; all Northern Irish citizens were afforded this protection (paras. 55–6).

(3) The strict dualist approach that United Kingdom courts had no jurisdiction to interpret or apply provisions of unincorporated international treaties had changed over time. Unincorporated international treaties,8 could

be important in construing United Kingdom legislation, guide the development of common law and the interpretation of the Convention. The European Court of Human Rights had stated that the Convention had to be interpreted in harmony with the general principles of international law. There was support for the view that the United Kingdom's international obligations, even though they were not incorporated in Northern Ireland law, required exceptions so as to permit abortions for pregnancies which were a consequence of sexual crime or where there was an FFA, but not for SMFs (paras. 59–71).

(4) In protecting certain fundamental rights, the Convention had necessarily had the effect of making Northern Irish society more tolerant and liberal, which was one of its objectives. While not requiring anyone to give up deeply held beliefs, the Convention did require respect for the rights that it protected, which could not be denied by imposing criminal sanctions or otherwise (paras. 90–5).

(5) In Northern Ireland law the unborn child did not enjoy a full “right to life” under Article 2 of the Convention.9 Prenatal life did, however, have some protection in respect of some attributes (paras. 96–109).

(6) The Northern Ireland abortion laws did not breach Article 3 of the Convention in failing to provide exceptions to the prohibition of abortion in cases of SMF, FFA and sexual crime. The Commission had failed to provide evidence that the minimum level of severity required by Article 3 had been attained.

(a) Article 3 provided absolute protection against inhuman or degrading treatment. A State was primarily prevented from inflicting ill-treatment on individuals within its jurisdiction. It was also obliged to take appropriate measures to prevent suffering at the hands of third parties (paras. 110–11).

(b) There was no question that the State had inflicted ill-treatment on such vulnerable women. They received the best medical attention during their pregnancies. They were not prevented from travelling to Great Britain to access medical facilities to allow for termination of pregnancy. While the need to travel would cause additional stress, neither the women travelling, nor those assisting them, faced criminal sanctions in Northern Ireland should their pregnancies be terminated in England. The stress level caused might be similar for those women who wished to terminate pregnancies for other reasons, such as contraceptive malfunction, and was also dependent on psychological makeup and character (paras. 112–21).

(7) The Northern Ireland abortion laws did breach Article 8 of the Convention in failing to provide exceptions to the prohibition of abortion in cases of FFAs at any time and pregnancies which were a consequence of sexual crime up to the date when the foetus became capable of existing independently of the mother.

(a) Article 8(1) provided protection for private life, family life, home and correspondence. These concepts were all autonomous under the Convention.

The scope of Article 8 had been widened as a consequence of the Strasbourg Court's evolutive approach to interpretation. While the Convention was a living instrument, to be interpreted in light of present-day conditions, it could not be interpreted in response to them. It could not create new rights. The Convention had to be read as a whole and interpreted so as to promote consistency and harmony between its various provisions (paras. 122–33).

(b) The State had a wide margin of appreciation in deciding when an abortion was lawful. The Strasbourg Court had recognized that State authorities were better able to judge the exact content of the requirements of morals in their country and the necessity of a restriction intended to meet them. A broad consensus between Member States did not narrow a broad margin of...

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3 cases
  • An application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)
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    ...UKSC 27 Supreme Court Trinity Term On appeal from: [2017] NICA 42 Lady Hale, President Lord Mance Lord Kerr Lord Wilson Lord Reed Lady Black Lord Lloyd-Jones In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by t......
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    • 14 June 2017
    ...... Katherine Eddy . (Instructed by The Government Legal Department) . Interveners (Alliance for Choice, British Pregnancy Advisory Service, Birthrights, Family Planning Association and Abortion Support Network) . Helen Mountfield QC . Jude Bunting ... a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge? . . 2 No, said the Court of Appeal (Moore-Bick LJ, Elias LJ, who gave the ......
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