On Monday the Belfast High Court made a landmark judgment that would make abortion legal in Northern Ireland in cases of rape and incest and fatal foetal abnormality.
Mr Justice Mark Horner held that abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights (ECHR) by failing to provide an exception to the prohibition of abortion in cases of fatal foetal abnormality at any time during pregnancy or where the pregnancy is the result of sexual crime - up to the date when the foetus is capable of existing independently of the mother.
Below is a summary of his judgment. The full text of the judgment is available on the Northern Ireland Courts website.
Mr Justice Horner, sitting today in the High Court in Belfast, held that the abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights by failing to provide an exception to the prohibition on abortion in cases of: a fatal foetal abnormality (at any time during the pregnancy) or where the pregnancy is the result of sexual crime (up to the date when the foetus is capable of existing independently of the mother). He asked the parties to make further submissions on whether the legislation could be read in a Convention compliant way or that prosecution would be an abuse and, in the event that it is not possible to achieve these outcomes, he said it will be appropriate and proper for the court to make a declaration to the effect that the legislation is incompatible with the UK's obligations under the Human Rights Act 1998.
Mr Justice Horner commended everyone who participated by providing submissions to the court thereby ensuring the widest possible debate. He said they should all be assured that he has taken account of their arguments in reaching his overall decision. He also encouraged everyone to read his judgment in full, to consider the arguments that have been made and understand them, even if they are unable to accept the conclusions he has reached.
The Northern Ireland Human Rights Commission ("the Commission") brought the application seeking a declaration that the rights of women in Northern Ireland who are pregnant and where there is a serious malformation of the foetus ("SMF") (including where there is a fatal foetal abnormality ("FFA")) or where the pregnancy is the result of rape and/or incest ("sexual crimes") are breached by sections 55 and 59 of the Offences Against the Person Act 1861 ("the 1861 Act") and section 25 of the Criminal Justice Act (Northern Ireland) Act 1945 ("the 1945 Act"). Consequently, it sought a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 in respect of the 1861 and 1945 Acts ("the impugned provisions").
Mr Justice Horner noted at the outset of his judgment that this was not a case about the right to abortion:
“There is no right to abortion in Northern Ireland except in certain carefully defined and limited circumstances. The Commission has made it clear that it does not seek to establish such a general right. This application is about whether the failure to provide certain limited exceptions to the ban on abortion in Northern Ireland, namely in cases where there is an SMF, including an FFA, or where the pregnancy is a consequence of sexual crime is in compliance with the rights enjoyed by all citizens of Northern Ireland under the European Convention on Human Rights.”
The Commission brought the application for a declaration of incompatibility following a period of some two years interchange with the Department of Health and Social Services and Public Safety ("DHSSPS") after it issued in April 2013 a Guidance Document entitled "The Limited Circumstances for a Lawful Termination of Pregnancy in Northern Ireland". The Court was told that this was issued in response to a Court of Appeal judgment which was handed down in 2004, some 8 ½ years later. The Commission wrote to the DHSSPS and the Minister of Justice to advise that it considered the law on the termination of pregnancy in Northern Ireland was not compliant with the NI Executive's obligations under human rights law. In May 2014, the Commission was informed by the Minister of Justice that a consultation paper was being prepared which would provide for termination of pregnancy in Northern Ireland on the grounds of SMF or where the pregnancy is a consequence of sexual crime but given the cross cutting nature of the issue it had been shared with the DHSSPS's Minister. The consultation paper was issued in October 2014 but did not address abortion for SMF or pregnancy consequent upon rape and/or incest.
The Commission then instituted proceedings seeking a declaration of incompatibility. It adduced evidence from Sarah Ewart and "AT" who had both been refused an abortion in Northern Ireland after being told that the foetus they were carrying would not and could not survive. Sarah Ewart travelled at short notice and in great distress to England for an abortion. AT's child was stillborn at 35 weeks. No evidence was adduced by the Department of Justice or the Attorney General to attempt to undermine or contradict the evidence that was filed on behalf of the Commission. The Department of Justice did, however, submit that it did not consider that any changes to the legislation are necessary in order to achieve compliance with the requirements of the European Convention on Human Rights ("the Convention"). It also referred to an interview with the First Minister, Peter Robinson MLA, in April 2015 who indicated that the Department's proposals for the reform of the law in Northern Ireland were "doomed". Mr Justice Horner commented:
“The unavoidable inference from the inaction of the Department [OF JUSTICE]
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.”
Abortion Law in Northern Ireland
In Northern Ireland, the relevant legislation provides that it is only lawful to perform a termination of a pregnancy for the purpose of preserving the life of the mother. This includes where a doctor considers that the probable consequence to the continuation of the pregnancy would be to make the woman “a physical or mental wreck”. Termination of a pregnancy where there is an SMF, an FFA or where the pregnancy is a consequence of a sexual crime renders the person who performs the abortion liable to criminal prosecution which carries on conviction a maximum penalty of life imprisonment.
A secondary party to the commission of such an offence is liable on conviction to the same penalty. A secondary party will include any person who, with intent to procure a termination of pregnancy, assists another in carrying out the procedure or who encourages the carrying out of such a procedure. Mr Justice Horner stated that this will normally include the mother. He further noted that anyone who knows or believes an unlawful termination of pregnancy has been performed and has information that might be of material assistance in securing the prosecution and conviction of the offender, must pass that information to the authorities: failure to do so is also a criminal offence.
Mr Justice Horner commented that the European Court of Human Rights has shied away from determining when human life begins and has concluded that it is a matter for each Member State to determine within that State's margin of appreciation. The Supreme Court of the Republic of Ireland has interpreted the right to life as commencing at the moment of conception whereas in England and Wales the common law position is that a foetus is not a legal person until it is born and has a separate existence from its mother. Mr Justice Horner held that there are no grounds for concluding that the common law in Northern Ireland is any different to that in England and Wales: "While the foetus does not have a right to life under Article 2 of the Convention in Northern Ireland, pre-natal life here is given protection under certain statutes" (a reference to the Coroners Act (NI) 1959 which requires a coroner to hold an inquest into a foetus which was "capable of being born alive").
The Effect of the Convention
Mr Justice Horner noted that one of the besetting sins of Northern Ireland society is thought to be the need for one section of the community with genuinely held political, religious or moral beliefs not just to have an argument with another section of the community who hold equally strong beliefs and to seek to persuade them by the force of its argument, but to then try to enforce its beliefs upon that other section, often with the support of criminal sanctions. He said the Convention, however, protects certain fundamental rights and there can be no doubt that it has had the effect of making Northern Ireland a more tolerant and liberal society, one that is more pluralistic and broad minded:
“Whether this is a good thing is not a matter for the Court. But it is one of the Convention’s objectives. The Convention does not require anyone to give up his or her deeply held beliefs on certain moral or religious matters. It just means that in respect of certain rights protected by the Convention one section of the community, whether in the majority or not, is no longer able to deny to others whether by the imposition of criminal sanctions or otherwise, the ability to enjoy those protected Convention rights.”
Section 6(2) of the Northern Ireland Act 1998 (“the 1998 Act”), which followed the Good Friday Agreement, made it clear that it was outside the legislative competence of the Assembly to pass any provisions which were “incompatible with any of the Convention Rights”. Mr Justice Horner commented that there can therefore be no dispute that one of the assurances given to the people of Northern Ireland was that their human rights as enshrined in the Convention would be protected under this new constitutional settlement:
“The binding determination of whether the impugned provisions are Convention compliant falls to be considered and ruled upon by an independent judiciary in Northern Ireland free from political interference or influence. Onerous though this may be, it is not a task that a judge should or can avoid in the discharge of his judicial duties, tempting though it may be to do so.”
Legal Standing of the Commission
The Attorney General disputed whether the Commission had any legal standing to bring the proceedings as there was no victim or potential victim. Mr Justice Horner disagreed. He said that while section 71(1)(a) of the 1998 Act prevents anyone who is not a victim from testing whether any legislation or act is compatible with the Convention section 71(2) makes it clear that this does not apply to the Commission and further states that the Commission may act "only if there is or would be one or more victims of the unlawful act". He noted that the Commission had made the case that any woman pregnant in any of the circumstances under consideration in this case will be extremely reluctant to come forward and challenge her ability to obtain a lawful abortion in Northern Ireland due to the further pressure it will place on her, the potential embarrassment and shame, particularly if the pregnancy is the result of a sexual crime including familial abuse, and the fear that her identity will be disclosed. He accepted how difficult it would have been for Sara Ewart and AT to come forward and concluded that a victim was not essential in this particular case:
“There has been enough evidence adduced by the Commission, which has not been contradicted by the [Department of Justice] or the Attorney General and which permits this Court to consider adequately the issues before it. For this Court to demand that unless women pregnant in the circumstances under consideration give evidence, the impugned provisions cannot be examined would be to do a further injustice to them.”
It was also submitted that the Commission’s role is restricted to legislation which post-dates 1998 (when the Commission was established). The judge commented that if the purpose of the 1998 Act is to ensure that the law in Northern Ireland is Convention compliant, and therefore its citizens’ human rights are protected, there can be no logical reason to restrict the Commission’s role so as to permit it solely to challenge legislation which post-dates 1998.
International Law and Obligations
The Attorney General drew the Court's attention to the United Nations Convention on the Rights of Persons with Disabilities ("UNCRPD") and said that under the 1998 Act the Assembly is not permitted to make laws contrary to this. The Convention proceeds on the premise that if abortion is permissible, there should be no discrimination on the basis that the foetus, because of a defect, will result in a child being born with a physical or mental disability. Mr Justice Horner said there should therefore not be different limits for abortion depending on whether the foetus is malformed. He said this has been a matter of debate in Great Britain as the Abortion Act 1967 sets no time limit as to when an abortion may take place if "there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped". The judge noted that there have been calls for this provision to be amended as it is contrary to the UK's obligations under UNCRPD in that there was evidence that abortions have been carried out on a foetus in England because if permitted to go to full term, the child born would have had a club foot or a cleft palate.
The judge noted that the material produced by the Commission did not reveal a consensus on the issue of whether abortion should be permitted where there is an SMF. He said there appeared to be a groundswell of support for the view that the UK’s international obligations, even though they are not incorporated into Northern Ireland law, require exceptions so as to permit abortions for pregnancies which are a consequence of rape and/or incest and where there is an FFA. He noted that there does not appear to be any international obligation to provide abortions in respect of SMFs nor any drive internationally to ensure that SMFs should be made an exception to the present abortion regime in Northern Ireland:
“There is also surely an illogicality in calling for no discrimination against those children who are born suffering from disabilities such as Down’s Syndrome or spina bifida on the basis that they should be entitled to enjoy a full life but then permitting selective abortion so as to prevent those children with such disabilities being born in the first place. This smacks of eugenics. It is always difficult to draw the line and it comes as no surprise that the phrase “serious malformation of the foetus” remains undefined. It can mean different things to different people.”
The Commission’s case
The Commission’s case was that the rights of women who are or become pregnant with an SMF, an FFA or as a result of sexual crimes under Articles 3, 8 and 14 of the Convention are breached by the impugned provisions.
Article 3 of the Convention: Prohibition of Torture
Article 3 comprises a negative obligation on a State preventing it from inflicting ill-treatment on individuals within its jurisdiction. Coupled with this is a positive obligation to take appropriate measures to prevent individuals from suffering ill-treatment at the hands of third parties. Mr Justice Horner reiterated that there is no right to abortion under the Convention and said that the State is not responsible for a woman having an FFA or for women being impregnated as a result of sexual crimes. He added that the State takes no steps to prevent women from travelling to Great Britain for a termination and the PPSNI has made it clear that anyone assisting a pregnant woman to travel or the women themselves will face any criminal sanction in Northern Ireland:
“There is no convincing evidence before me that there are victims or potential victims within any of the three categories which are the subject of this application, who are able to satisfy the minimum threshold of severity necessary to allow a Court to conclude that there has been a breach of their Article 3 rights. The “thin end of the wedge” or “slippery slope” argument also cannot be ignored. There is no reason to dismiss the possibility that a young woman who has become pregnant as a result of a consensual relationship due to an error on her part or a contraceptive malfunction, might also suffer a similar amount of additional stress of having to travel far from her family incurring substantial expenses in order to have her pregnancy terminated in England. It all depends on the psychological make-up of the woman concerned.”
Article 8 of the Convention: Right to Respect for Private and Family Life
Mr Justice Horner referred to case law which states that private life is a broad concept encompassing, among other things, the right to personal autonomy and personal development. He noted that the Supreme Court of the Republic of Ireland had agreed that the Article 8 rights of three women who had to travel to Great Britain for an abortion were engaged but that the interference was justified as being “in accordance with the law and necessary in a democratic society for one of the legitimate aims specified in Article 8 of the Convention”. The judge noted that the European Court had afforded the Irish State a wide measure of appreciation on the protection of the rights of the unborn due to the “profound moral views of the Irish people as to the nature of life”, and the right to life being guaranteed under the Irish Constitution from the date of conception.
Mr Justice Horner said it had been asserted on behalf of the Attorney General that the impugned provisions are proportionate and that, as in the case of A, B and C v Ireland, there exists the right to travel to England for Northern Irish women who want to seek an abortion. The judge said he had three problems with this argument:
· “If it is morally wrong to abort a foetus in Northern Ireland, it is just as wrong morally to abort the same foetus in England. It does not protect morals to export the problem to another jurisdiction and then turn a blind eye;
· If the aim is to prevent abortion, then it is surely no answer to say that abortion is freely available elsewhere and that necessary services can be easily accessed in an adjacent jurisdiction. There is no evidence before this Court, and the Court has in no way attempted to restrict the evidence adduced by any party, that the law in Northern Ireland has resulted in any reduction in the number of abortions obtained by Northern Irish women. Undoubtedly, it will have placed these women who had to have their abortions in England under greater stress, both financial and emotional, by forcing them to have the termination carried out away from home;
· There can be no doubt that the law has made i it much more difficult for those with limited means to travel to England. They are the ones who are more likely to be greatly affected in their ability to terminate their pregnancy if they cannot obtain charitable assistance. The protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy. That smacks of one law for the rich and one law for the poor.”
In this case, evidence was adduced by the Commission of opinion polls which purported to show an overwhelming majority of the population of Northern Ireland in favour of abortion but Mr Justice Horner said little weight could be attached to these as they are dependent on the nature of the questions asked, the circumstances in which they were asked and the nature of the persons sampled. He added that it is simply impossible to know how the majority of people in Northern Ireland view abortion without a referendum and noted that there is no political will to change the law of abortion to permit these exceptions.
Mr Justice Horner said the court therefore had to decide whether the impugned provisions breach Article 8 by preventing women having a pregnancy terminated when there is an SMF, an FFA or where the pregnancy is a consequence of a sexual crime. If the court considers there has been an infringement under Article 8(1), that is an interference with the personal autonomy of women who are pregnant with SMFs, FFAs or as a result of sexual crime, then the interference has to be justified by the Government as being in accordance with the law; for legitimate aim; and necessary in a democratic society.
The judge said there is no doubt that the interference is in accordance with the law as it is enshrined in statute. He further said that although pre-natal life does not enjoy full Article 2 protection in this jurisdiction, there is a legitimate aim to protect it where the foetus will be viable but the unborn child faces non-fatal disability:
“There should be equality of treatment between, on the one hand, the foetus which will develop into a child without physical or mental disability and, on the other hand, the foetus which will develop into a child with a physical and/or mental disability which is non-fatal. However it is illegitimate and disproportionate to place a prohibition on the abortion of both a foetus doomed to die because it is incapable of an existence independent of the mother’s womb and the viable foetus conceived as a result of sexual crime”.
Mr Justice Horner then considered whether the interference is necessary in a democratic society ie whether there is a “pressing social need”. He said it was noteworthy that the Government had chosen deliberately not to adduce any evidence on the issue of justification which suggested the Court should infer that the imposition of criminal sanctions on women having abortions in Northern Ireland or performing them had resulted in the reduction of the number of abortions. He said that while there was evidence that forcing young women to travel to Great Britain can have the consequence of imposing an intolerable financial and mental burden on those least able to bear it, there was “not one iota of evidence” that the imposition of criminal sanctions on these women in these exceptional cases has resulted in the saving of any pre-natal life. The judge said that for those women without support from their family or a charity, such criminal provisions requiring them to travel to have an abortion would impose a heavy financial burden upon them which would weigh heavier on those with limited means:
“The protection of morals, as I have observed, should not contemplate a restriction that penalises the impoverished but can be ignored by the wealthy. It is surely not controversial that requiring women in these exceptional categories to go to England, that is those carrying FFAs and those pregnant as a result of sexual abuse, will place heavy demands on them both emotionally and financially”.
Mr Justice Horner said there can be no doubt that the current law places a disproportionate burden on the victim of a sexual crime:
“She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility and is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both. In doing so, the law is enforcing the prohibition of abortion against an innocent victim of a crime in a way which completely ignores the personal circumstances of the victim. Weighed in the balance is the foetus, incapable of an independent existence. The law makes no attempt to balance the rights of the women that are involved. Instead, by imposing a blanket ban on abortion, reinforced with criminal sanctions, it prevents any consideration of the interests of the women whose personal autonomy has been so vilely and heinously invaded. A law so framed can never be said to be proportionate. ”
The judge compared this to the offence of child destruction which is the crime of killing of an unborn but viable foetus, that is a child “capable of being born alive” before it has a “separate existence”. In England and Wales, a registered medical practitioner who terminates a pregnancy in accordance with the Abortion Act 1967 does not commit this offence. In Northern Ireland section 25 of the 1945 Act only permits the destruction of a foetus of 28 weeks or more for the purpose of preserving the life of the mother. He noted that child destruction comes at a much later stage than normal existence, namely when the foetus becomes capable of existing independently of the mother:
“Obviously there is considerable overlap between child destruction and abortion which requires an attempt to procure a miscarriage once the foetus becomes capable of existing independently. When a foetus becomes capable of existing independently of the mother, there is a counter-balance to the rights of the mother. There is something to weigh in the balance that is being expressly recognised by statute. Further, where abortion is lawfully available up to the time immediately before the foetus becomes capable of independent existence, the mother must have permitted that to happen. It will be her decision not to seek an abortion, but instead to allow the foetus to develop so as to become capable of an independent existence. In those circumstances, it cannot be said, exercising the necessary due deference, that the prohibition of child destruction under the 1945 Act is either unacceptable or disproportionate”.
In respect of the three categories of case which were the subject of this application, Mr Justice Horner concluded as follows:
Fatal foetal abnormality (FFA) – the judge said that there can be no doubt that the mother’s inability to access an abortion in the circumstances where the doctor can be certain that the foetus will be unable to live independently outside the womb constitutes a gross interference with her personal autonomy. “In the case of an FFA there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is nothing to weigh in the balance. There is no human life to protect. Furthermore, no evidence has been put before the Court that a substantial section of Northern Ireland’s community, never mind a majority, requires a mother to carry such a foetus to full term. Therefore even on a light touch review, it can be said to a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed by the impugned provisions.”
Pregnancies due to rape and incest (sexual crimes) – Mr Justice Horner said that sexual crime is the grossest intrusion on a woman’s autonomy in the vilest of circumstances. Any resulting pregnancy is not a voluntary act but one which was forced upon the woman. He noted that in Northern Ireland a woman who becomes pregnant as a result of a sexual crime is obliged to carry a child to full term or risk criminal prosecution unless she obtains an abortion for the purpose of preserving the mother’s life or if continuation would make her “a physical or mental wreck The judge noted that the foetus does not have any Article 2 rights and there is no evidence that any life has been saved by the impugned provisions or the abortion regime presently operating in Northern Ireland insofar as they affect women pregnant as a result of sexual crime.
He added that there was also no evidence that the people of Northern Ireland require a woman impregnated as the result of a sexual crime to carry the foetus to full term because of their profound and moral views. Serious malformation of the foetus (SMF) – Mr Justice Horner stated that the position with an SMF is different in that it has to be weighed against the fact that the foetus has the potential to develop into a child albeit with a mental and/or physical disability but that child will be able to enjoy life. He concluded that it is not possible when exercising judicial restraint in light of all the evidence to say that the failure to provide an exception for SMFs (whatever they may be) under the impugned provisions is not proportionate.
Child destruction – Mr Justice Horner noted for the avoidance of doubt that he did not consider the prohibition on child destruction to be contrary to Article 8.
the failure to provide exceptions to the law prohibiting abortions in respect of FFAs at any time and pregnancies due to sexual crime up to the date when the foetus becomes capable of an existence independent of the mother is contrary to Article 8 of the Convention. He reaffirmed that he did not consider the prohibition on abortion of the foetus once it becomes capable of an existence independent of the mother in cases where the pregnancy is due to sexual crime or on child destruction to be contrary to Article 8.
The judge considered whether sections 58 and 59 of the 1861 Act could be read down to ensure that no offence is committed in respect of terminations of FFAs and pregnancies due to sexual crime before the foetus is able to exist independently of the mother because such actions are not unlawful given his findings. He said there is a strong argument that any decision to prosecute in such cases would be an abuse of the law given the court’s conclusion that the law is disproportionate. He noted, however, that no party to the application made the case that it was possible to read the legislation in such a way nor was any argument addressed to the court about whether prosecution in such circumstances would be an abuse of the law. Given that the court did not hear the parties on these issues, Mr Justice Horner said it was only proper that he gave them a further opportunity to make submissions before concluding his view.
In concluding his decision, Mr Justice Horner stated: “In the circumstances, given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of the 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 FFAs or who are pregnant as a result of sexual crime are breached by the impugned provisions.”
The judge invited the parties to make submissions about whether it is possible to read the legislation in such a way to ensure that no offence is committed in respect of the termination of FFAs and pregnancies due to sexual crime before the foetus is able to exist independently of the mother. He will then consider whether it is necessary that he should exercise his discretion and make a declaration that the legislation is incompatible with the UK’s obligations under the Human Rights Act 1998.