Judge refers abortion legislation to Northern Assembly
Implementing ruling on abortion through current legislation a ‘step too far’, says judge
Last month Mr Justice Mark Horner held that abortion legislation in Northern Ireland breached a human rights article in relation to fatal foetal abnormality and pregnancy as a result of sexual crime. File photograph: Getty Images
A Belfast High Court judge has effectively handed over responsibility for implementing his ruling that abortion should be permitted in cases of fatal foetal abnormality, rape and incest to the Northern Assembly.
Late last month Mr Justice Mark Horner held that abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights - the right to privacy - in relation to fatal foetal abnormality and pregnancy as a result of sexual crime.
At the time he asked the three parties in the case - the Northern Ireland Human Rights Commission which took the action, the North’s Department of Justice and Attorney General John Larkin QC - to consider whether the ruling could be applied under current legislation or whether it would have to be referred to the Northern Assembly.
Today after hearing their submissions he decided that it would be a “step too far” to allow the matter to be legally “read down” - that is, to have his ruling applied under current legislation.
“There is near unanimity among the parties in this judicial review, and that includes the commission, that for this court to try and read the impugned provisions in a Convention-compliant way would be a step too far,” he said.
This means that for his ruling to be made effective the Northern Assembly would have to bring in new legislation.
There appeared to be general consensus today that the Assembly was unlikely to act any time soon in relation to what many politicians will see as a politically difficult judgment.
There is also the likelihood that the judgment will be appealed by the Attorney General Mr Larkin, or possibly by the Department of Justice, which could delay implementation for up to three years, according to the head of the North’s Human Rights Commission Les Allamby.
Abortion is legal in Northern Ireland where there is a threat to the life of the woman or where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent.
The 1967 British Abortion Act does not apply in Northern Ireland.
The element of the case relating to fatal foetal abnormality was partly prompted by the experience of Sarah Ewart who in 2013 was denied an abortion in Northern Ireland.
Her unborn baby had been diagnosed with anencephaly, a severe brain condition which meant the baby would die in the womb or was only likely to live for a very short time after birth. She had a termination in England at 20 weeks.
Outside Belfast High Court today Ms Ewart said that in the new year she would seek a meeting with new First Minister, who is expected to be Arlene Foster, the Deputy First Minister Martin McGuinness, the Minister of Health Simon Hamilton and the Minister of Justice David Ford to press for the implementation of the ruling.
“I just urge all politicians to help us, help the women carry on having the families that they want and give us the medical procedures that we need in our hospitals where we live,” she added.
“I don’t want to go through the experience I had back in 2013 nor do I want any other woman to go through what I have been through,” said Ms Ewart.
Bernadette Smyth of the Precious Life group, which opposes such changes to legislation, said it was important to realise that the “law hasn’t changed”.
“We are very hopeful that our politicians will continue to uphold the rights of the unborn child,” she added.
“Women who have medical issues in pregnancy, who have foetal abnormalities or have difficulties in cases of sexual offence should be cared for, should be supported, but destroying the life of an unborn child is not the way forward in a progressive society,” said Ms Smyth.