Far-reaching decision as judge rules on issue ‘unlikely to be grasped’ by Assembly

In ruling against Bernadette Smyth, of Precious Life, and Marion Woods, of Life Northern Ireland, Mr Justice Mark Horner in a sense conceded arguments made by them. His ruling stipulated that abortion should be permitted in the North in case of rape, incest and fatal foetal abnormality.

The two anti-abortion campaigners had contended that the Northern Ireland Human Rights Commission, which took the case, was acting against the wishes of the legislature, the Northern Ireland Assembly.

The judge made his ruling on the basis that the North’s abortion legislation in relation to sexual crime and fatal foetal abnormality is in breach of article 8 – the right to privacy – of the European Convention on Human Rights.

“In the circumstances, given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of citizens of Northern Ireland to have their convention rights protected by the courts, I conclude that the article 8 rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions,” said the judge.

Proposals ‘doomed’

He also referred to an interview in April this year in which First Minister

Peter Robinson

indicated that the Department of Justice’s proposals for the reform of abortion law in Northern Ireland were “doomed”.

Following a consultation, the department had recommended that abortion be permitted in instances of fatal foetal abnormality but not in cases of rape and incest.

In the ruling he delivered yesterday, Mr Justice Horner said: “The unavoidable inference from the inaction of the department to date, and the comments of the First Minister, is that the prospect of any consultative paper, never mind legislative action on pregnancies which are the consequence of sexual crime, is even more gloomy.”

In other words, if the Assembly's politicians wouldn't "grasp" the issue, then he would. And grasp it he did, in a complex and lengthy judgment which took him close to two hours to deliver at Belfast High Court.

There were three parties to the case: the commission, the Department of Justice and the North’s Attorney General, John Larkin, QC. Larkin said he was “profoundly disappointed” by the judgment and was “considering the grounds for appeal”.

Appeal likely

It is seen as highly likely that Larkin will appeal the case, with the added possibility that it could end up in the

Supreme Court

.

It is probably fair to say that the majority of Assembly members – the legislators – will be unhappy or have serious misgivings about the ruling.

The commission, the department and Larkin will make further submissions to Mr Justice Horner on how to proceed later this month.

They will give their opinion on whether his decision could be “read down”, meaning that it would become law without any need for Assembly legislation.

If that is not possible, the judge could make a declaration that current law is incompatible with the UK’s obligations under the Human Rights Act 1998.

As this is a devolved matter, it would require Assembly legislation.

In the face of elections in May, that could prove problematic, with politicians still likely to be reluctant to grasp the issue.

If the Assembly stalls on the matter, it is unclear quite what will happen thereafter. We could have a situation where doctors citing the judge’s ruling could feel they can perform abortions in cases of rape, incest and fatal foetal abnormality without fear of prosecution.

Equally, Assembly failure to legislate could leave the status quo applying. The issue could be left in a legislative and political no man’s land unless the judge can provide certainty and clarity later this month.

Complications

Another caveat should be entered here in that, notwithstanding the judge’s ruling, there could be complications over establishing whether a pregnancy was caused as a result of rape or incest.

It should also be noted that this legislation applies to these specific three cases. The much more liberal 1967 British Abortion Act does not apply in Northern Ireland.

Almost certainly, there will be more legal issues to be tested and confronted in relation to this judgment, but there is no doubt that Mr Justice Horner has laid down a landmark decision.

And while Taoiseach Enda Kenny and many other TDs in the Dáil are anxious to have abortion off the agenda as far as possible in the forthcoming general election, this judgment surely has ensured that it will be very much on the minds of the electorate in the Republic.