Human Rights Commission for Judicial Review (Northern Ireland : Abortion) [2018] UKSC 27

The Northern Ireland Human Rights Commission challenged Northern Ireland's abortion laws as incompatible with ECHR articles 3 and 8 in cases of fatal foetal abnormality, rape, and incest. The Supreme Court found the Commission lacked standing, but a majority indicated the law was incompatible with article 8.

Facts

The Northern Ireland Human Rights Commission (NIHRC) brought judicial review proceedings challenging the compatibility of sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945 with articles 3, 8 and 14 of the ECHR. The challenge focused on three categories: fatal foetal abnormality, serious foetal abnormality, and pregnancies resulting from rape or incest. Under Northern Ireland law, abortion is prohibited save where necessary to preserve the life of the mother or to prevent serious long-term or permanent injury to her physical or mental health, as clarified in R v Bourne [1939] 1 KB 687 and Family Planning Association of Northern Ireland v Minister for Health [2004] NICA 39. Evidence was put before the court describing the harrowing experiences of women such as Ashleigh Topley, Sarah Ewart, and Denise Phelan, who had to carry foetuses with fatal abnormalities or travel to Great Britain for terminations.

Issues

Two principal issues arose: (1) whether the NIHRC had standing under sections 69 and 71 of the Northern Ireland Act 1998 to bring abstract proceedings challenging primary legislation in the absence of an identified victim or unlawful act; and (2) whether the impugned legislation was incompatible with articles 3 and 8 of the ECHR in the three identified categories.

Arguments

The NIHRC and Supporting Interveners

The NIHRC argued it had power under section 69(5)(b) of the Northern Ireland Act 1998 to bring proceedings challenging legislation relating to human rights protection without needing to identify a specific victim. On the merits, it contended that the blanket prohibition caused severe suffering amounting to inhuman or degrading treatment under article 3 and disproportionately interfered with women’s right to respect for private life under article 8.

The Respondents (Department of Justice and Attorney General for Northern Ireland)

The respondents challenged the Commission’s standing, arguing that section 71(2B) required an identified unlawful act and actual or potential victim. On the substantive issues, they argued the law pursued a legitimate aim of protecting the unborn and struck a fair balance, and that the issue fell within the competence of the Northern Ireland Assembly, relying on A, B and C v Ireland (2011) 53 EHRR 13.

Judgment

Standing

By a majority (Lord Mance, Lord Reed, Lady Black, Lord Lloyd-Jones), the court held that the NIHRC did not have standing. Lord Mance held that sections 69 and 71, properly construed, do not empower the Commission to institute abstract proceedings challenging primary legislation absent an identified unlawful act and actual or potential victim. The careful statutory scheme in section 71(2B) and (2C) precluded an unconstrained actio popularis. Since the 1861 Act is UK primary legislation, its enactment or non-repeal cannot constitute an “unlawful act” under sections 6 and 7 of the HRA.

Substantive Compatibility (Obiter)

A majority (Lady Hale, Lord Mance, Lord Kerr, Lord Wilson) held that the current law is incompatible with article 8 in cases of rape, incest and fatal foetal abnormality. Lady Black agreed only in respect of fatal foetal abnormality. Lord Kerr and Lord Wilson additionally found incompatibility with article 3. Lord Reed and Lord Lloyd-Jones found no incompatibility.

Lord Mance reasoned that the prohibition fails to strike a fair balance: it treats the pregnant woman as a vehicle, fails to attach weight to personal autonomy, and achieves its aims only haphazardly since most affected women travel to Great Britain, with the most vulnerable being victimised. Unlike in A, B and C v Ireland, there was no evidence of profound moral views of the Northern Ireland public supporting the prohibition in these categories, with opinion polls showing majority support for reform. In cases of fatal foetal abnormality, there is no viable life to protect. In cases of rape and incest, the autonomy of the woman must prevail.

In relation to serious (non-fatal) foetal abnormality, the court unanimously declined to find incompatibility, having regard to the views of the UN Committee on the Rights of Persons with Disabilities.

Remedy

Because of the majority’s conclusion on standing, no declaration of incompatibility could be made. Lord Mance observed that the substantive conclusions “cannot safely be ignored” and that a victim bringing similar proceedings would likely obtain a declaration of incompatibility.

Implications

The judgment is of considerable significance despite the absence of a formal declaration of incompatibility. It strongly signals to the Northern Ireland Assembly (or the UK Government under direct rule) that the existing law requires radical reconsideration in cases of fatal foetal abnormality, rape and incest. As Lord Mance put it, “the present law clearly needs radical reconsideration” and “those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions.”

On standing, the decision narrows the NIHRC’s powers, confining its ability to bring proceedings to situations involving identifiable unlawful acts with actual or potential victims. This contrasts with the apparently wider powers of the Equality and Human Rights Commission under section 30 of the Equality Act 2006. The dissenting judges (Lady Hale, Lord Kerr, Lord Wilson) considered this construction frustrated the evident statutory purpose of enabling the Commission to bring test cases.

On the substantive law, the judgment marks a significant departure from deference to the Assembly given the absence of any definitive decision by that body, the political impasse since early 2017, and the evidence of public opinion in Northern Ireland differing markedly from that in Ireland at the time of A, B and C. The reasoning identifies limits to the margin of appreciation when applied domestically, following In re G (Adoption: Unmarried Couple) [2009] AC 173.

The case is important for victims of the law who may now bring individual proceedings with realistic prospects of obtaining declaratory relief. It also illustrates the limits of abstract challenges to legislation and the importance of individualised fact-finding, particularly under article 3 where a “minimum level of severity” must be established on the specific facts.

Verdict: The appeal was dismissed. The majority held that the Northern Ireland Human Rights Commission lacked standing to bring the proceedings, and accordingly the court had no jurisdiction to make a declaration of incompatibility. Although a majority of the court was of the view (obiter) that the impugned legislation was incompatible with article 8 of the ECHR in cases of fatal foetal abnormality, rape and incest, no formal declaration of incompatibility could be made.

Source: Human Rights Commission for Judicial Review (Northern Ireland : Abortion) (Rev 1) [2018] UKSC 27