NORTHERN Ireland's abortion legislation has survived a challenge to its compatibility with the European Convention on Human Rights (ECHR), but it has not emerged unscathed. By majority, a Supreme Court panel of seven in Re Northern Ireland Human Rights Commission's Application for Judicial Review [2018] UKSC 27, [2018] H.R.L.R. 14, held that the Northern Ireland Human Rights Commission (NIHRC) did not have standing to challenge the legislation. A different majority would, however, have made a declaration of incompatibility under the Human Rights Act 1998 (HRA), s. 4, but for the lack of standing, and the abortion legislation was condemned by several of the Justices.
A case on this subject would always provoke controversy, but the timing of this judgment was particularly striking. It followed in the wake of the Republic of Ireland's referendum vote to repeal the Eighth Amendment of its Constitution, which recognises the equal right to life of the unborn child. Earlier in 2018, Northern Ireland abortion law was found to breach the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by the CEDAW Committee. Calls for legal reform were inevitable, but prospects for change are limited because the Northern Ireland Assembly has been suspended since January 2017. Reform by the Westminster Parliament would be highly controversial, and is further complicated by the Conservative Party's Confidence and Supply Agreement with the traditionally pro-life Democratic Unionist Party (DUP) (although the DUP were instrumental in establishing a working group to investigate reform possibilities in 2016).
Northern Ireland law makes it a criminal offence to receive or perform an abortion (Offences Against the Person Act 1861, ss. 58–59, and the Criminal Justice (Northern Ireland) Act 1945, s. 25(1)). Exceptions are limited to cases where the abortion is carried out in good faith to preserve the woman's life, or where continuing the pregnancy would make her a “physical or mental wreck” (R. v Bourne [1939] 1 K.B. 687, 694). The NIHRC sought to challenge the compatibility of the legislation with ECHR Articles 3, 8 and 14 because it does not permit abortions in the case of serious foetal abnormality, or where the pregnancy results from rape or incest.
By majority (Lords Mance, Reed, Lloyd-Jones and Lady Black), the court held that the NIHRC did not have standing (Lady Hale and Lords Kerr and Wilson dissenting). The Northern Ireland Act 1998 (NIA), s. 69(5)(b), empowers the NIHRC to bring human rights proceedings. The NIHRC need not itself be a victim of a human rights breach (NIA, s. 71(2A)), but the majority emphasised that actual or potential victims of an “unlawful act” must be identified (NIA, s. 71(2B)(c)). Under the HRA, ss. 6–9, victims can challenge the unlawful acts of public authorities. This case, however, concerned a challenge under HRA, s. 4, which requires neither an unlawful act nor a victim. As Lord Kerr noted, and as I have noted elsewhere (“Facing Facts: Judicial Approaches to Section 4 of the Human Rights Act 1998” (2017) 133 L.Q.R. 631), the HRA regime in sections 3–5 is completely “distinct” from that in sections 6–9 (at [183]). Comparisons with Strasbourg's approach to individual applications under ECHR Art. 34 (e.g. at [68]) are not pertinent because HRA, ss. 3–5, concern legislation, not specific acts with specific victims. Indeed, if primary legislation (such as the 1861 Act) is incompatible with Convention rights, there is no unlawful act (HRA, ss. 6(1) and 6(2)). Thus the court should have held that NIA, s. 71(2B)(c), was not engaged. Lord Mance's acknowledgement that his conclusion on the procedural point was “inconvenient” (at [70]) is an understatement. The majority's approach denies the NIHRC its statutory purpose, which includes raising cases in its own name to prevent individuals from having to do so (Lord Kerr, at [197]). As even Lord Mance noted, “the usual rules regarding standing in public law proceedings” apply to HRA, s. 4, (at [62]). It seems clear that the NIHRC would have “sufficient interest” to bring a case (Senior Courts Act 1981, s. 31(3)). The instant case runs counter to a trend for a more permissive approach to standing for individuals, let alone bodies set up for the very purpose (e.g. Walton v Scottish Ministers [2012] UKSC 44, [2013] P.T.S.R. 51).
Had standing been established, a majority would have made a declaration of incompatibility with Article 8 because the legislation prohibits abortion in cases of fatal (but not in cases of serious) foetal abnormality or pregnancies resulting from rape or incest (Lady Hale, Lords Mance, Kerr and Wilson; Lady Black would only have made the declaration in respect of fatal foetal abnormality). Article 14 did not need to be considered in the light of the majority's conclusions on Article 8. The majority was satisfied that the legislation could not be operated compatibly with Article 8 for any woman falling into one of the three categories (where the foetus cannot survive, or where the pregnancy results from rape or incest) (see e.g. Lady Hale, at [34]). Lord Mance went even further, suggesting that legislation need only “inevitably” operate incompatibly “in a legally significant number of cases” (at [82]). This suggestion is difficult to reconcile with Lord Mance's conclusion as to standing. If legislation cannot be operated compatibly, there is no unlawful act and thus no role for NIA, s. 71(2B)(c).
A minority (Lords Kerr and Wilson) would also have made a declaration of incompatibility with Article 3. The majority was not convinced that the high threshold required to breach Article 3, in contrast to Article 8, would be crossed in all cases, or even in Lord Mance's “legally significant” number of cases. Lady Hale reserved judgment on incompatibility with Article 3, but her analysis lends support to the minority. In her view, Article 3 might not be breached in every individual case, but the public authority could not always act to prevent a breach. Certain women falling into one or more of the three categories would necessarily suffer as a result of being denied an abortion, or having to travel to access one, because of their personal characteristics and the situation in which they found themselves (at [34]). On this logic, the legislation, rather than the public authority's action, appears to be deficient and a declaration would be more appropriate than a claim under HRA, ss. 6–9. Lord Kerr's reminder that Article 3 covers “degrading” treatment in addition to torture is compelling (at [237]). Furthermore, he focused on the instant challenge being limited to women carrying foetuses which could not survive, or women who have suffered sexual abuse (at [231]). Not all women in Northern Ireland seeking an abortion would suffer an Article 3 breach, but the case would be stronger for a “legally significant” number of women falling into one or more of those categories. Lord Reed, by contrast, held that it would be “impossible” to find an Article 3 breach in the light of the “manifestly ill-founded” Article 3 challenge in A, B and C v Ireland (Application no. 25579/05) (2011) 53 EHRR 13 (at [353]). None of the women in that case, however, carried unviable foetuses or had suffered sexual abuse.
Lord Reed (with whom Lord Lloyd-Jones agreed) would not have made any declaration. That he would refuse to do so was based on uncertainty about whether the legislation systematically breached Convention rights, or whether it could be operated compatibly such that individual claims under HRA, s. 6, would be more appropriate (Lady Black's modest Article 8 conclusion was based on the same reasoning). Lord Reed's reluctance was due to the case's not being based on one factual matrix. An alternative conclusion could have been that the various case studies advanced by the NIHRC bolstered, rather than hampered, the claim that the legislation was systematically problematic.
Lord Kerr (a former Lord Chief Justice of Northern Ireland) gave a characteristically robust critique of the legislation. But one of the boldest statements was Lord Mance's condemnation of the “untenable” legislation, which he thought to be in need of “radical reconsideration” (at [135]). Despite not making a declaration of incompatibility, he pleaded for policy-makers to “recognise and take account of these conclusions, at as early a time as possible” (ibid.). Time will tell what the political reaction to this “non-declaration” will be.
The substantive issue turned on the unsettled question of how systematically a piece of legislation must breach rights for a declaration of incompatibility to be made. For Lord Kerr, it would have been enough that there was a “likelihood” of suffering to “at least some members of the vulnerable group” (at [257], emphasis in original). For Lord Reed, the legislation would have to breach Convention rights in “all or almost all cases” (at [355]). And Lord Mance's “legally significant number of cases” test lay somewhere in-between, bringing little clarity to the area. Treatment of both the procedural and the substantive issues shows the courts’ continued confusion about their novel role of reviewing legislation under HRA, s. 4, rather than their traditional role of judicially reviewing unlawful acts.
