Standing and the Northern Ireland Human Rights Commission
| DOI | http://doi.org/10.1111/1468-2230.12417 |
| Date | 01 May 2019 |
| Published date | 01 May 2019 |
| Author | Jane M. Rooney |
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Modern Law Review
DOI: 10.1111/1468-2230.12417
Standing and the Northern Ireland Human Rights
Commission
Jane M. Rooney∗
On 7 June 2018, the UK Supreme Court held that the Northern Ireland Human Rights
Commission (NIHRC) did not have standing under the Northern Ireland Act 1998 (NIA)
and Human Rights Act 1998 (HRA) to challenge the legality of abortion law in Northern
Ireland. This case note argues that while a literal reading of the NIA exposes its inconsistencies,
a purposive reading of both the NIA and HRA indicates that the NIHRC should have had
standing. The note seeks to highlight the unique democratic function of the NIHRC in a
consociational setting in protecting rights that are not represented along ethno-national lines.
It also considers the negative ramifications that the judgment will have on women who have
been victims of the legislative regime and seek to challenge the compatibility of Northern Irish
abortion law with the HRA in the future.
‘This is Bleak House we are in today – in the chancery courts waiting day after
day after day after day for a decision that never comes.’1
INTRODUCTION
On 7 June 2018, the UK Supreme Court, by a majority of four to three judges,
held that the Northern Ireland Human Rights Commission (the NIHRC) did
not have standing under the Northern Ireland Act 1998 (NIA) or Human
Rights Act 1998 (HRA) to challenge the legality of abortion law in Northern
Ireland.2However, it was found obiter dicta that the law in Northern Ireland
prohibiting abortion in cases of fatal foetal abnormality (FFA) and rape was
incompatible with Article 8 of the European Convention on Human Rights
(ECHR), the right to respect for private life.
∗Bristol Law School, University of Bristol. The author would like to thank Sheelagh McGuiness,
Claire Pierson, Alan Greene and Colin Murray for their helpful suggestions and comments. All
URLs were last accessed 1 January 2019.
1 M. Nesbitt, Ulster Unionist Party, Northern Ireland, quoted in ‘Bid to ease North-
ern Ireland abortion laws voted down’ The Guardian 11 February 2016 at https://www.
theguardian.com/uk-news/2016/feb/11/northern-ireland-abortion-laws-easing-voted-down.
2In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review
[2018] UKSC 27 (Re NIHRC (2018)).
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2019) 82(3) MLR 525–548
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Standing and the Northern Ireland Human Rights Commission
The obiter declaration of incompatibility under section 4 HRA represents
a victory for the NIHRC.3However, because the case was formally lost on
standing, the political pressure normally evoked by such a declaration was
almost absent. The primary focus of this case note is to evaluate whether the
NIHRC does and should have standing to bring human rights litigation in
its own name under the NIA and HRA. It considers whether Lord Mance,
delivering the majority opinion on standing, provided the correct interpretation
of the NIA and HRA. The second part of the note places the litigation in
the context of legal and policy developments in abortion law in Northern
Ireland and the Republic of Ireland (ROI) over the last decade to highlight
its significance. The third part argues that while a literal reading of the NIA
exposes its inconsistencies, a purposive reading unequivocally indicates that the
NIHRC was empowered to initiate proceedings in its own name, and both a
literal and purposive reading of sections 3–5 HRA accommodate the NIHRC’s
standing. The implications of the judgment for reform of abortion law and the
effect that denying the NIHRC standing will have on practical and effective
review of law and policy for human rights compliance in Northern Ireland,
are addressed in the fourth part. The importance of the NIHRC’s strategic
litigation for ensuring that human rights issues are brought to the attention of
those ultimately responsible, the UK central government, is also demonstrated.
CONTEXT AND JUDGMENT
Abortion law in Northern Ireland
In England, Wales and Northern Ireland, abortion is recognised as a criminal
offence under sections 58 and 59 of the Offences Against the Person Act 1861
(OAPA), as it is in common law in Scotland.4AccordingtotheOAPA,a
woman who intentionally procures an abortion, or any individual who aids in
the commission of an abortion, will be guilty of a criminal offence,5except
when the mother’s life is at risk.6The Abortion Act 1967 carves out exceptions
to the criminalisation of abortion in England, Scotland, and Wales. The 1967
Act allows for an abortion up to 24 weeks’ gestation where two ‘registered
medical practitioners’ agree ‘in good faith’ that an abortion should be provided
under one of the grounds laid down in the Act.7
3 F. Bloomer, K. McNeilly, and C. Pierson, ‘The Supreme Court’s decision on Northern Ire-
land’s abortion law – what now?’ (LSE’s British Politics and Policy blog, 12th June 2018) at
http://blogs.lse.ac.uk/politicsandpolicy/supreme-court-on-ni-abortion-law/.
4 See, for example, J. Brown, ‘Scotland and the Abortion Act 1967: historic flaws, contemporary
problems’ (2015) Juridical Review 2, citing John Fenton (1761), reported in Burnett, A Treatise on
various branches of the Criminal law of Scotland (Edinburgh: Archibald Constable & Co, 1811) 6;
Patrick Robertson and Marion Kempt (1627) Hume I, 186.
5 Offences Against the Person Act 1861, ss 58 and 59.
6RvBourne [1939] 1 KB 687.
7 Abortion Act 1967, s 1.
526 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(3) MLR 525–548
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