Conor O’Mahony: NI abortion ruling unlikely to affect Republic
Utility of a ruling from our neighbouring jurisdiction lies in realm of political advocacy rather than litigation
The European Court of Human Rights in Strasbourg. The court is acutely aware of its own limited enforcement powers and is hesitant to find violations in cases touching on deeply contested moral issues. Photograph: Olivier Morin/AFP/Getty Images
On Monday, the Northern Ireland High Court ruled that abortion laws in Northern Ireland violate the European Convention on Human Rights (ECHR) by failing to allow abortions in cases of fatal foetal abnormality or rape. The decision led to a predictable flood of commentary about the implications for abortion law south of the Border. Headlines in broadsheet newspapers proclaimed: “North abortion ruling to force change in the Republic”. Commentators suggested that Ireland was now “on notice” that our laws are “clearly in breach of article 8” of the ECHR.
This reaction is understandable. Ireland and Northern Ireland (as part of the UK) are both parties to the ECHR, and have similar mechanisms allowing domestic courts to declare national laws incompatible with the convention. Both jurisdictions allow their national human rights commission to bring cases seeking declarations of incompatibility (Monday’s judgment was such a case). Given these striking parallels in our legal systems, it seems an easy conclusion that Ireland’s abortion law, which is even more restrictive than the North’s, will be found to violate the ECHR in a similar case here.
Beneath the hue and cry, things are much less clear cut. As a party to the ECHR, Ireland is bound by interpretations of the convention handed down by the European Court of Human Rights in Strasbourg. However, Ireland is not bound by interpretations of the convention handed down by national courts in other member states. A decision of the Northern Ireland High Court only directly affects Northern Ireland.
To date, the Strasbourg court has not found that there is a general right to abortion under the convention, or that a failure to allow abortion in cases of fatal foetal abnormality or rape violates the ECHR. In 2010, in A, B and C v Ireland, the court rejected an argument that Irish law violates the convention by failing to allow abortion on health or wellbeing grounds.
Strasbourg case lawThe UK courts have demonstrated a willingness to hand down interpretations of the ECHR that go beyond what Strasbourg has already done. They view the convention as a floor, not a ceiling. By contrast, the Irish courts have a much more restrictive view. In a Supreme Court decision in 2009 called McD v L, it was forcefully stated that Irish courts should not get ahead of the Strasbourg case law when interpreting the ECHR. This alone makes a decision of the Irish courts mirroring Monday’s decision in the North very unlikely in the absence of a decision from Strasbourg.
And that is before we even mention the Eighth Amendment to the Constitution, which definitely precludes abortion in cases of rape and most likely does so in cases of fatal foetal abnormality. The Constitution takes precedence over the ECHR in our system. Even if Monday’s ruling had reflected a pre-existing ruling in Strasbourg, the Eighth Amendment would probably be cited by an Irish court as precluding a similar outcome here. By analogy, in McD v L, the Supreme Court declined to follow the Strasbourg definition of family life due to the definition of the family contained in article 41 of the Constitution.
Theoretically, a court might set the Constitution to one side and declare that, notwithstanding the constitutional position, a piece of Irish legislation is incompatible with the ECHR. But even in this (highly unlikely) scenario, the declaration could have no effect. Unlike when a court strikes down a law as unconstitutional, a declaration of incompatibility with the ECHR does not immediately invalidate a law. Instead, the Oireachtas would be obliged to amend it to remedy the defect. In this case, the Eighth Amendment would tie the hands of the Oireachtas and render the declaration of incompatibility futile.
All of which is to say the likely legal impact of Monday’s ruling on this side of the Border is somewhere between limited and non-existent. The ruling does not even suggest Strasbourg might be likely to make a similar ruling in the near future. The Strasbourg court is acutely aware of its own limited enforcement powers and its dependence on the co-operation of member states when it rules against them. As a result, it is hesitant to find violations in cases touching on deeply contested moral issues. While it has ruled that states must ensure abortion is accessible within established exceptions in national law, it is especially reluctant to require states to expand the range of those exceptions (as shown in A, B and C v Ireland).
Legal relevanceDoubtless, Monday’s ruling contains several eloquent passages that highlight the very real impact of restrictive abortion laws in cases of fatal foetal abnormality or rape. The impact is not just physical and emotional; it touches on widely recognised human rights. However, unless and until Strasbourg finds Irish abortion law in breach of the ECHR, the utility of a ruling from our neighbouring jurisdiction lies in the realm of political advocacy rather than litigation.
Dr Conor O’Mahony is a senior lecturer in constitutional law at the school of law at University College Cork