The Supreme Court refused to make a declaration of incompatibility about abortion restrictions in Northern Ireland, notwithstanding its conclusion that such restrictions are incompatible with the ECHR. The Court’s judgment is nevertheless likely to have the same effect as a declaration of incompatibility and indicates an exciting way forward for reproductive rights challenges.
- Abortion is criminalised in Northern Ireland except in cases where it would “preserve the life of the mother”, or continuance of the pregnancy would make the woman a “physical or mental wreck” by the Offences against the Person Act 1861 and Criminal Justice Act (Northern Ireland) 1945. The effect of these provisions is to deny thousands of women access to abortion services in Northern Ireland. Many of those women are forced to travel to other parts of the UK in order to have terminations.
- The Northern Ireland Human Rights Commission (‘NIHRC’) brought a challenge to the compatibility of the relevant law with Articles 3, 8 and 14 ECHR insofar as it prohibits pregnancy as a result of (i) serious foetal malformation, (ii) pregnancy as a result of rape and / or (iii) pregnancy as a result of incest.
- The Northern Ireland High Court held that NIHRC had standing to bring these proceedings in its own name rather than in the name of women directly affected by the law. It further held that the relevant law was incompatible with Article 8 in cases of (i) fatal foetal abnormality, (ii) rape (up to the date when the foetus is capable of being born alive), and (iii) incest (up to the date when the foetus is capable of being born alive). The Court made a declaration of incompatibility under s. 4 of the Human Rights Act 1998. It dismissed the appeal under Article 3 of the ECHR. The Northern Ireland Court of Appeal agreed that the NIHRC had standing but held there was no incompatibility with the ECHR.
The Supreme Court
- The Supreme Court had to deal with two issues: firstly, whether the NIHRC had standing to bring this challenge and, secondly, whether the abortion restrictions were compatible with the ECHR. In its 144-page judgment, there is significant division amongst the justices about how to deal with this sensitive issue.
- By a majority (Lords Mance, Reed, Lloyd-Jones and Lady Black), the Court held that the NIHRC did not have standing to bring the proceedings. Therefore, it found that it did not have jurisdiction to make a declaration of incompatibility under the Human Rights Act 1998. The NIHRC were not victims and they had not included a specific and identifiable victim in the proceeding. Nevertheless, a majority of the Court was willing to consider whether, had the NIHRC had standing, they would have succeeded in their claim.
- Article 8 of the ECHR. A majority of the Court (Lady Hale and Lords Mance, Kerr and Wilson) considered that the current law in Northern Ireland was disproportionate and incompatible with Article 8 of the ECHR insofar as it prohibits abortion in cases of (i) fatal foetal abnormality (ii) pregnancy as a result of rape, and (iii) pregnancy as a result of incest. Were a victim with standing to come to court to challenge the current law, a formal declaration of incompatibility would in all likelihood be made.
- The majority noted that Northern Ireland was almost alone in Europe in the strictness of its current law and that it should scrutinise carefully the justification for a distinction in abortion laws between different parts of the UK.
- As to the different possible scenarios, the majority reasoned as follows:
a. Fatal foetal abnormality. There is no community interest in obliging a woman to carry a pregnancy to term where the foetus suffers from a fatal abnormality. The law fails to attach any weight to the woman’s autonomy and imposes harrowing stress, inconvenience and expense on women who are obliged to travel for an abortion. It leads to severe and sometimes life-time suffering for those most vulnerable women who are so forced. Lady Black joined the majority on this issue alone.
b. Serious foetal abnormality. A distinction was drawn between fatal and serious foetal abnormalities. A foetus diagnosed as likely to be seriously disabled should be treated as having equal worth as a non-disabled child, thus the restriction could not be said to be disproportionate.
c. Rape. The majority concluded, for differing reasons, that obliging a woman to bear a child against her will was incompatible with the fundamental right to bodily integrity. The possibility of travelling abroad for an abortion could not be treated as justifying the law; rather it showed that such a restriction was disproportionate.
d. Incest. The majority focused on the extreme suffering of victims of abuse (often children) having to carry a child to birth and having a potential responsibility ad lifelong relationship with the child thereafter, concluding that such a restriction could not be justified.
- Article 3 of the ECHR. A majority (Lords Mance, Reed, Black and Lloyd-Jones) concluded that the law in Northern Ireland was compatible with Article 3. While some women might experience suffering that could fall within Article 3, this would have to be a case-specific assessment.
- Lord Kerr, the Justice from Northern Ireland, dissented on this issue. He would have concluded that the law was incompatible with Article 3 of the ECHR. There was a risk that some women who are denied an abortion in the circumstances set out above would suffer profound psychological trauma within the meaning of Article 3. His judgment on this point ends with the following powerful reasoning:“We need to be clear about what the current law requires of women in this context. It is not less than that they cede control of their bodies to the edict of legislation passed […] more than 150 years ago […]. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country. They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality or have been the victims of rape or incest, they are condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement?”
- It is surprising that the Supreme Court, having granted permission to appeal, effectively ducked the substantive issue in the case by taking a point on standing, in stark contrast with the Northern Irish courts on this issue. As far as we are aware, this is the first case in which the UK’s highest court has granted permission, considered the issues substantively but then dismissed the appeal on standing grounds. It is a salutary reminder to practitioners that we should not take standing for granted despite the increasingly liberal approach by courts in this area.  It would not have been difficult for the NIHRC to have joined women directly affected by the ban to the proceedings and thereby avoided this issue entirely, albeit their standing to bring the claim was accepted by the High Court.
- While the NIHRC technically lost their appeal, it is likely that the effect of this judgment will be much the same as it would have been had a declaration of incompatibility been made. As we now know, even with declarations of incompatibility  and a Strasbourg judgment in the claimants’ favour, the government cannot be relied upon to act promptly or effectively (or at all). The Supreme Court has made it clear that future claims brought by victims of the abortion restrictions will succeed. Defending such claims would be difficult and expensive for the government. The much cheaper option is to relax the abortion restrictions in Northern Ireland to bring them into line with the Supreme Court’s judgment despite the absence of a declaration of incompatibility. The threat of costly future litigation following this decision may therefore be as likely to motivate legislators as a formal declaration of incompatibility.
- The Court’s decision on Article 8 is most certainly a welcome one. It demonstrates that national courts are willing to protect rights even when this involves going further than Strasbourg. The European Court has been rather timid in abortion cases, refusing either to recognise that foetuses have a right to life under Article 2 or to approve a right to abortion under Article 8. It has only been willing to insist on women being provided with access to an abortion where the relevant State permits this: see Tysiąc v Poland (2007) 45 EHRR 42; RR v Poland (2011) 53 EHRR 31. The European Court’s decision in A, B, and C v Ireland (2011) 53 EHRR 13, originating from a 2005 application, was based in part on its application of the ‘margin of appreciation’, which shifts with changing norms among Council of Europe members. In that decision, the Strasbourg Court found that Ireland’s constitutional ban on abortion in almost all cases was compatible with Article 8.
- Ireland has recently made history by voting to overturn its constitutional ban on abortion. Abortion restrictions across the Council of Europe have been slowly liberalising since A, B and C. Malta stands alone in prohibiting abortion entirely, with increasing liberalisation of abortion services having been the norm elsewhere over the last several decades. It is to be hoped that, as Europe expands protection of a woman’s right to choose, the UK can develop more effective safeguards within its ‘margin of appreciation’, which may in turn encourage the Strasbourg court to recognise shift in attitudes across Europe.
- Although in a minority (joined by Lord Wilson and supported by Lady Hale), Lord Kerr’s judgment on Article 3 is worth consideration as it clearly points the way for a more effective challenge to abortion restrictions. As an absolute right, any successful challenge on Article 3 grounds does not have to involve the court in the difficult balancing exercise under Article 8, which may easily founder if a government relies on the legitimate aim of ‘protecting public morals’, which is usually invoked in these cases. While the European Court of Human Rights in A, B, and C v Ireland refused to consider any possible Article 3 violation, this was based on a heavy reliance on the possibility of accessing abortion abroad. Its reasoning seems flimsy against Lord Kerr’s strong reasoning that there will inevitably be some women who are simply unable to travel for an abortion. As Lord Kerr’s reasoning was endorsed by two of his colleagues, this is an argument which campaigners should keep pursuing, at both the domestic and supranational level.
 Since at least R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995 1 W.L.R. 386