Northern Ireland abortion law can be challenged, court rules

Human Rights Commission issued proceedings against the Department of Justice

The Northern Ireland Human Rights Commission has won High Court permission to challenge abortion law in Northern Ireland.

A judge in Belfast has granted leave to seek a judicial review amid claims the current near-blanket ban on terminations is a violation of human rights.

“This case raises issues of considerable public importance which require to be examined at a substantive hearing,” Mr Justice Treacy said.

The commission issued proceedings against the Department of Justice as part of an attempt to secure a change in the law to allow abortion in cases of rape, incest or serious foetal malformation.

Terminations are currently only legal in Northern Ireland to protect the woman’s life or where there is a risk of permanent and serious damage to her mental or physical health.

The court battle comes as Minister for Justice David Ford continues a public consultation on amending the criminal law on abortion in Northern Ireland.

It includes a recommendation for proposed legislation allowing an abortion in circumstances where there is no prospect of the foetus being delivered and having a viable life. But according to counsel for the commission the consultation does not commit to making the changes it believes are necessary.

In court, Nathalie Lieven QC argued the current situation breaches rights to freedom from torture and inhuman and degrading treatment, discrimination and entitlements to privacy under the European Convention on Human Rights.

She contended that the consultation’s main focus is on serious foetal abnormality.

In submissions the lawyer claimed there is a high-level of support in Northern Ireland for decriminalising terminations in both those circumstances and cases of rape and incest.

A clear consensus also exists across Europe for woman to have those abortion rights, according to Ms Lieven. "It can't be open to the minister to undermine the effect of the Human Rights Act by saying 'I'm consulting and therefore the courts should do nothing for a potentially prolonged period," she said.

Describing the challenge as a class action, the barrister added that three cases involving what she described as “victims” have been supplied to back efforts to secure a law change.

Among those packed into the courtroom for the hearing was anti-abortion campaigner Bernadette Smyth.

The Precious Life chief sat directly in front of Dawn Purvis, the Marie Stopes clinic director she was convicted of harassing. They heard Tony McGleenan QC, responding for the Department of Justice, argue that it was inappropriate for the Commission to bring a "pre-emptive" legal challenge while the consultation exercise is ongoing.

He stressed that views were being sought on whether any law change should be restricted to cases of serious or lethal foetal abnormalities. “That will form part of the legislative process in which the commission will be statutorily involved,” Mr McGleenan said. “What they have decided to do is ... bring aggressive legislation against a Minister who is bringing legislation forward.”

But Ms Lieven claimed there was no definite timeframe, and that two of the circumstances raised in the case may not be dealt with.

“It may well be we wait for a long and indefinite period of time, and then find no legislative change in rape or incest in any event,” she added. Following submissions, Mr Justice Treacy ruled that the commission had established an arguable case to be examined at a full hearing he listed for three days in June.

The judge was also told a number of interested organisations, including Precious Life, the Family Planning Association and the Society for the Protection of Unborn Children want permission to make submissions.

He told their representatives: “I appreciate there’s considerable interest in the case, but I don’t want a proliferation of interventions which may not add anything to the issues the court has to consider.”