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In The Matter of an application by the Family Planning Association of Northern Ireland for Judicial Review
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1 User Commentary

Melanie Davidson (In-house lawyer) 26 January 2016

Northern Ireland, the NIHRC decision and the abortion debate

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With the significant recent news coverage of the topic of abortion in Northern Ireland, it is a fitting occasion to discuss the law governing abortion and the recent decision in The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96.

The current state of the law

Unlike the rest of the UK which is governed by the Abortion Act 1967, Northern Irish abortion law is governed by sections 58 and 59 of the Offences Against the Person Act 1861 ("OAPA"), section 25(1) of the Criminal Justice (Northern Ireland) Act 1945 ("CJNIA") and the common law.  In essence the law prescribes that women in Northern Ireland can only seek abortions if there is serious risk to their life. Many are of the opinion that Northern Irish law needs amending in line with the law in force across the rest of the UK.

The law

Sections 58 and 59 of the OAPA prohibit any unlawful actions taken to procure an abortion, including the provision of drugs ("poison or other noxious thing") or the use of an "instrument". These sections created what was in effect a ban on the procedure of abortion.

The above sections of the OAPA are subject to section 25(1) of the Criminal Justice (Northern Ireland) Act 1945 which permits abortion of a “child capable of being born” where a woman’s life would otherwise be put at risk. 

In the judicial review application for In The Matter Of An Application By The Family Planning Association Of Northern Ireland For Judicial Review [2003] NIQB 48 the decision of Mr Justice Kerr sitting in the High Court in Belfast went further when he stated that abortion is legal in circumstances where, continuance of the pregnancy risks the life of the mother or would seriously adversely affect her mental or physical health either permanently or long-term. 

The application for judicial review and the judgment

Last year this issue was brought to light when, on 30th November 2015, the High Court in Northern Ireland delivered a decision in an application for judicial review brought by the Northern Ireland Human Rights Commission (“NIHRC”) (The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96).

In the application for judicial review, the NIHRC argued that the current legislation on abortion in Northern Ireland is in contravention with several Articles of the European Convention on Human Rights (“ECHR”). Of particular significance are Article 3’s and 8, the former of which prohibits torture and inhuman or degrading treatment or punishment since women are, in essence, being forced to carry their babies against their own choice. Article 8(2) states that ‘there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. There was also some discussion about Article 14.

Early on in the judgment, Horner J cited Lord Steyn in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 in order to demonstrate a comparison between assisted suicide and abortion, and the polarisation of views that they generate. ‘“It is of great importance to note that these are ancient questions in which millions in the past have taken diametrically opposite views and still do.” There has been a long-standing strife between the cornerstones of common law: the sanctity of life and personal autonomy. In any given democratic society there needs to be a balance struck between these two issues, but finding an equilibrium within a society where religious conflict has been prominent for years, such as, Ireland makes it even more difficult.

In the judicial review judgment, Horner J held that the absence of exceptions to the ban on abortion in relation to fatal foetal abnormalities (FFAs) and pregnancy arising from sexual crime is a violation of Article 8 of the ECHR, but not a violation of Article 3 nor Article 8 read in conjunction with Article 14. As a living instrument, the ECHR must be interpreted in the light of present day conditions; something that accounts for the growth of the scope of the Article 8.

Furthermore, it was necessary to consider whether the interference was ‘necessary in a democratic society’. In A, B and C v Ireland [2010] ECHR 2032 the Court was tasked with assessing Article 8(2) and 'whether there existed a pressing social need for the measure in question, and, in particular, whether the interference was proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests in respect of which the State enjoys a margin of appreciation'.

In order to arrive at a conclusion on this point, one would have to consider the restrictions on the margin of appreciation. Even though it may appear from other national laws that most parties, in their legislation, have struck the balance in favour of more access to abortion, this would not necessarily be conclusive in the court’s decision on whether the law in Ireland struck a fair balance between the conflicting rights.  The court decided that the State authorities are better equipped to judge ‘the exact content of the requirements of morals in their country’ as well as ‘the necessity of a restriction intended to meet them’.

The court afforded Ireland a rather wide margin of appreciation as opposed to the usually more restricted measure due to the ‘profound moral views of the Irish people as to the nature of life’. In addition, unlike other constitutions of European countries, the Irish Constitution has secured the right to life from conception. 

Throughout the judgment, there was mention of the fact that there is a right to travel for Northern Irish women to go to England and have an abortion, thus suggesting that the ban on abortion in Ireland is proportionate. However, Horner J did not agree. He raised the argument that, in practice, it is only those who can afford the costs of travel and accommodation in England who can seek an abortion. This right to travel which is initially seen as giving flexibility to the ban on abortion is, in reality, only activated for the wealthy. Paradoxically, it is generally those who are incapable of travelling that will be more affected by their limitation to terminate their pregnancy. Horner J went on to suggest that if it is an entrenched value in Northern Ireland that abortion is immoral then surely, ‘the protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy’. In addition, one could argue that the act of abortion itself is a daunting event for anyone, so adding the burdens of travelling to somewhere outside one’s comfort zone coupled with the costs makes the experience all the more unpleasant.

Effect

The size of the impact of this reform in Northern Ireland differs depending on which perspective you observe from. From the view of people who are largely in favour of safeguarding life, this may be a far-reaching decision in that abortion is now legal under expanded circumstances of rape, incest and fatal foetal abnormality (FFA). However, from the point of view of those in favour of personal autonomy, this decision is rather limited in scope and effect in that it only extends to circumstances outside of the mother’s control, namely FFAs and pregnancy as result of sexual crimes. The true essence of personal autonomy is free will and sovereignty and so, until the time when women can have an abortion due to a merely unwanted pregnancy, Northern Irish law has not gone far enough to reform the law on abortion. Nonetheless, considering the religious backdrop of attitudes in Northern Ireland, this judgment is a step towards providing more protection for vulnerable girls and women.

Further links:

  • http://www.keepcalmtalklaw.co.uk/the-sanctity-of-life--an-update-on-abortion-law-in-northern-ireland/
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