Spuc (Society for the Protection of Unborn Children) Pro–Life LTD's Application and The Secretary of State for Northern Ireland and Northern Ireland Human Rights Commission, Equality Commission for Northern Ireland and Rosaleen McElhinney Intervening and Spuc Pro – Life LTD Application for Judicial Review and The Minister of Health for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Judgment Date | 08 February 2022 |
| Neutral Citation | [2022] NIQB 9 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 08 February 2022 |
1
Neutral Citation No: [2022] NIQB 9
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: COL11688
ICOS No: 2021/40878/01
2021/57222/01
Delivered: 08/02/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY SPUC PRO-LIFE LTD
FOR JUDICIAL REVIEW
Applicant
and
THE SECRETARY OF STATE FOR NORTHERN IRELAND
and
NORTHERN IRELAND HUMAN RIGHTS COMMISSION,
EQUALITY COMMISSION FOR NORTHERN IRELAND
and ROSALEEN McELHINNEY INTERVENING
AND
IN THE MATTER OF AN APPLICATION BY SPUC PRO-LIFE LTD
FOR JUDICIAL REVIEW
and
THE SECRETARY OF STATE FOR NORTHERN IRELAND and
THE MINISTER OF HEALTH FOR NORTHERN IRELAND
Respondents
___________
Mr John F Larkin QC with Mr Alistair Fletcher (instructed by Hewitt & Gilpin Solicitors)
for the Applicant
Mr Peter Coll QC with Mr Philip McAteer (instructed by the Crown Solicitor’s Office)
for the Secretary of State
Mr Paul McLaughlin QC with Ms Emma McIlveen (instructed by the Departmental
Solicitor’s Office) for the Minister of Health
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Mr Yaaser Vanderman (instructed by and appearing on behalf of
the Northern Ireland Human Rights Commission)
Professor Christopher McCrudden (instructed by and appearing on behalf of
the Equality Commission for Northern Ireland)
Mr Andrew Beech provided written submissions on behalf of Rosaleen McElhinney
(instructed by Nelson-Singleton Solicitors)
___________
COLTON J
[1] I am obliged to all counsel who appeared in this matter for their written and
oral submissions which were of invaluable assistance to the court.
Introduction
[2] This is the third in a series of recent applications before the courts concerning
the issue of the provision of abortion services in Northern Ireland.
[3] In its judgment in Re Northern Ireland Human Rights Commission’s Application
for Judicial Review [2018] UKSC 27, [2019] 1 All ER 173 a majority of the Supreme
Court held that the then current law in Northern Ireland in relation to abortion was
incompatible with the right to respect for private and family life, guaranteed by
Article 8 of the European Convention on Human Rights (ECHR), insofar as it
prohibited abortion in cases of rape, incest and fatal foetal abnormality. It held that
the interference with Article 8 rights of women in those categories was not justified.
Summary of the legislative background
[4] Subsequent to that judgment and the publication of the report of the inquiry
concerning the United Kingdom of Great Britain and Northern Ireland under Article
8 of the Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women (“the CEDAW Report”) Parliament enacted section 9
of the Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”) which
received Royal Assent on 24 July 2019. Section 9 of the 2019 Act imposed specific
duties on the Secretary of State in relation to the provision of abortion and
post-abortion services in Northern Ireland. It came into force on 22 October 2019.
The Abortion (Northern Ireland) Regulations 2020 (“the Abortion Regulations 1”)
were made in exercise of the powers conferred by sections 9 and 11 of the 2019 Act.
They came into force on 31 March 2020. The Abortion (Northern Ireland) (No.2)
Regulations 2020 (“the Abortion Regulations 2”) were made on 12 May 2020 and
came into force on 14 May 2020. They were also made pursuant to sections 9 and 11
of the 2019 Act and revoked the Abortion Regulations 1. The Abortion Regulations 2
are materially identical to the Abortion Regulations 1 and will be referred to
hereafter in this judgment as the “2020 Regulations.”
[5] The 2020 Regulations make provision for the introduction of an abortion
regime in Northern Ireland such that:
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“(a) A pregnancy may now be terminated for any
reason before 12 weeks;
(b) Between 12 and 24 weeks, a pregnancy may be
terminated where ‘the continuance of the
pregnancy would involve risk of injury to the
physical or mental health of the pregnant woman
which is greater than if the pregnancy were
terminated’;
(c) After 24 weeks, a pregnancy may only be
terminated: (i) on grounds of immediate necessity
(to save life or prevent grave permanent injury):
(ii) where it is necessary to prevent grave
permanent injury or continuance would involve
greater risk to life than termination; or (iii) on
grounds of severe or fatal foetal abnormality.”
(Emphasis added)
[6] The Abortion (Northern Ireland) Regulations 2021 (“the 2021 Regulations”)
were made in exercise of the powers conferred by sections 9 and 11 of the 2019 Act.
They came into force on 31 March 2021 and made provision for the Secretary of State
to give a direction to a “relevant person” if he “considers that any action capable of being
taken by a relevant person is required for the purpose of implementing the recommendations
in paras 85 and 86 of the CEDAW Report.”
[7] In the meantime the Northern Ireland Human Rights Commission issued
proceedings seeking a judicial review of the alleged failure by the Secretary of State
for Northern Ireland, the Executive Committee for Northern Ireland and the
Minister of Health for Northern Ireland to provide women with access to abortion
and post-abortion care in all public health facilities in Northern Ireland. It was
argued on behalf of the applicant in those proceedings that the Secretary of State had
failed to comply with his obligations under section 9(7) of the 2019 Act to ensure
“expeditiously” that abortion services are available in Northern Ireland. The case
against the Executive Committee and the Minister of Health was based on an alleged
breach of Article 8 ECHR.
[8] That case was heard on 26 and 27 May 2021. The Secretary of State
subsequently issued the Abortion Services Directions 2021 on 22 July 2021 pursuant
to the 2021 Regulations (“the Directions”). The Directions came into force on 23 July
2021. They require, amongst other things:
(a) The Department of Health to secure the commissioning of abortion services in
Northern Ireland by 31 March 2022.
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