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North’s politicians are leaving human rights to the courts

Abortion case proves the importance of the Human Rights Act to Northern Ireland

On October 24th this year, the UK supreme court in London will hear the appeal against the decision last month of the court of appeal in Belfast that the court should not intervene on the laws on access to termination of pregnancy in cases of fatal foetal abnormality, serious malformation of the foetus and for victims of sexual crimes.

That judgment had overturned a high court ruling that the current law was incompatible with human rights laws.

The UK human rights commission's actions to defend rights in relation to termination of pregnancy illustrates a wider point, that issues resolved by legislatures elsewhere in the UK remain politically contested in Northern Ireland and subsequently become subject to court action.

About 800 women and girls are reported as travelling from Northern Ireland each year to Britain

The Abortion Act, 1967, does not extend to Northern Ireland. Instead, 19th-century legislation and the Criminal Justice Act (NI), 1945, which covers child destruction, govern the law.

In effect, obtaining a termination of pregnancy is a criminal offence in all circumstances, except where it is deemed necessary to preserve the life of a woman; including where there is a risk of a serious and adverse effect on her physical or mental health, which is either long-term or permanent.

Life imprisonment

Under common law, a doctor in Northern Ireland must be of the opinion that the continuation of a pregnancy would make the woman a “physical or mental wreck” before a termination can be provided. Guidance on what this means in practice and how to interpret the law has been contested and subject to litigation for almost a decade.

The maximum punishment for unlawfully performing a termination of pregnancy in Northern Ireland is life imprisonment. Assisting in the procurement of a termination is also criminalised.

In his judgment, the lord chief justice held that the time had come for the court to determine what is reasonably tolerable in today’s society. That is not to be defined by the values of the 1930s. The other judges, however, disagreed with his approach.

Almost no terminations occur in Northern Ireland. Instead, about 800 women and girls are reported as travelling from Northern Ireland each year to Britain.

At the same time, Women on the Web (a website that refers women and girls to licensed doctors to obtain termination of pregnancy pills after an online consultation) has seen an almost threefold increase in the use of its service across the island of Ireland since 2010.

Accessing medication online remains a live issue. A mother who bought pills for her pregnant 15-year-old daughter to induce a termination of pregnancy is currently being prosecuted.

The backdrop was that her boyfriend was allegedly abusing the 15-year-old. The decision by the public prosecution service to pursue a criminal conviction is being legally challenged. The hearing was adjourned until October.

To illustrate the wider point, in an earlier legal challenge the commission successfully overturned a law that prevented unmarried couples, including same-sex couples, in Northern Ireland from being considered as adoptive parents.

In another case, a lifetime ban on blood donations from men who have had sex with men, which responded to the HIV/Aids crisis in the 1980s, had been reduced to one year elsewhere in the UK in 2011.

An equivalent change was not introduced in Northern Ireland until last year as a result of a legal challenge.

Equal marriage also illustrates the difficulties faced. The issue has been resolved elsewhere across these islands.

By contrast, the Northern Ireland Assembly has rejected motions in favour of same-sex civil marriage on five occasions.

Legal challenges

Two legal challenges in support of equal marriage were heard together in the Belfast high court in December 2015. The first was against the department of finance on human rights grounds.

The second challenge relates to a couple who had married in England and wished to clarify their family rights on returning to Northern Ireland. Judgment remains outstanding in both cases.

The cases illustrate why the principles which underpin the Belfast Agreement are important

The then minister of finance, Máirtin Ó Muilleoir of Sinn Féin, had announced his intention to introduce legislation in the Assembly that would have provided for equal marriage.

In the human rights commission’s action on termination of pregnancy, the supreme court will again consider where a line should be drawn between the courts and the legislature on a contested human rights issue. The pace of change may often seem glacial to people outside of Northern Ireland.

Nevertheless, the recent Northern Ireland Life and Times survey reveals that public attitudes are changing in favour of a more permissive approach to termination of pregnancy, in line with the commission's legal challenge.

The cases also demonstrate tangibly the value of the Human Rights Act in Northern Ireland.

They illustrate why the human rights and equality principles which underpin the Belfast Agreement are an important part of the everyday lives of the people in Northern Ireland.

They also demonstrate why the continuing absence of a Bill of rights for the Northern Ireland, as envisaged in the Agreement, remains a crucial missing piece in the constitutional jigsaw needed to bring about a durable peace and stability.

Les Allamby is chief commissioner of the Northern Ireland Human Rights Commission

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