Supreme Court: Northern Ireland Human Rights Commission does not have standing in abortion proceedings

1. A declaration “pursuant to section 6 and section 4” of the Human Rights Act 1998 that sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 are incompatible with articles 3, 8 and 14 of the European Convention on Human Rights so far as “they relate to access to termination of pregnancy services for women with pregnancies involving a serious malformation of the foetus or pregnancy as a result of rape or incest”;
2. A declaration that, notwithstanding the provisions of the above sections, “women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest”;
3. A declaration that “the rights of women in Northern Ireland with a diagnosis of serious malformation of the foetus or who are pregnant as a result of such rape or incest” are breached by the above sections; and/or
4. such further or other relief as the Court might think appropriate.

Lady Hale

Emphasising the right to bodily autonomy as recognised by Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] AC 1430, and in Pretty v United Kingdom (2002) 35 EHRR 1, Lady Hale said that for women “who become pregnant, or who are obliged to carry a pregnancy to term, against their will there can be few greater invasions of their autonomy and bodily integrity”.

In cases of fatal foetal abnormalities, Lady Hale said that women often have to make a very difficult moral choice when coming to the “agonising conclusion” that because of the FFA, they do not wish to carry the pregnancy to term. The question then was whether others, many of whom would never be placed in that situation, are entitled to impose their own moral choice upon her, and legally oblige her to carry the pregnancy to term. This, according to Lady Hale, is what is imposed by the present law contained in sections 58 and 59 of the Offences Against the Person Act 1861, and section 25(1) of the Criminal Justice Act (NI) 1945.

Lady Hale held that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 of the European Convention on Human Rights, insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality (FFA).

Lady Hale held that it could not be said that every woman denied an abortion in circumstances of in cases of rape, incest and FFA would suffer “so severely that her rights under article 3 have been violated”, and that it would depend on an “intense focus on the facts of the individual case”.

On the issue of standing, Lady Hale said that NIHRC did have standing to challenge the legislation. She said that it was “an arid question, because there is no doubt that the NIHRC could readily have found women who either are or would be victims” – and that section 71(2B) and (2C) of the Northern Ireland Act 1998 did not apply to limit the NIHRC’s power to challenge the compatibility of legislation of any sort under sections 3 and 4 of the Human Rights Act 1998.

Lord Mance 

Lord Mance said that, “without real hesitation at the end of the day”, he would have concluded that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 of the European Convention on Human Rights, insofar as it prohibits abortion in cases of rape, incest and FFA.

However, Lord Mance was not satisfied that the NIHRC had standing to bring the proceedings. Lord Mance said that the NIHRC’s powers under sections 69 and 71 of the NI Act 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the Offences Against the Person Act 1861, is incompatible with the Convention Rights. He said that neither the Westminster Parliament’s enactment of, nor its or the Northern Irish legislature’s failure to repeal or amend, the Offences Against the Person Act 1861 constituted an “unlawful act” under sections 6 and 7 of the HRA; adding that it was “ by itself implausible” to reading into section 71(2C)(a)(ii) the additional words “in respect of unlawful acts” – so to read ‘human rights proceedings’ means proceedings which rely (wholly or partly) on…section 69(5)(b) of this Act in respect of unlawful acts”…

Lord Mance said that a reading of s.71 as a whole made it clear that “it was envisaged as establishing a limited jurisdiction”. In addition, it was clear that s.71 was “not intended to embrace proceedings challenging legislation of the devolved Assembly or subordinate legislation or an act of the devolved administration which is, by virtue of section 6(2) of the HRA, not unlawful for the purposes of sections 6(1) and 7 of the HRA”.

Lord Mance concluded that the proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it:

1. Regarding the Offences Against the Person Act 1861, the proceedings were brought to challenge ECHR compatibility of UK primary legislation – “which by statutory definition is not a complaint about any act which is unlawful under the HRA or indeed otherwise”
2. The proceedings were brought without reference to any particular alleged “victim” of any such incompatibility

Lord Kerr

Lord Kerr held that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 ECHR, and also that it is incompatible with the right not to be subjected to inhuman or degrading treatment, guaranteed by article 3 ECHR.

Regarding article 3, Lord Kerr referred to, inter alia, RR v Poland (2011) 53 EHRR 31, and opined that it was “…plainly humiliating to require a girl or woman to continue a pregnancy when she knows that the foetus she carries will die or where she finds that pregnancy abhorrent because it is the consequence of rape or incest”.

Lord Kerr also held that the NIHRC did have standing to bring the proceedings, and would have made a declaration of incompatibility. Lord Kerr was satisfied that the requirement that NIHRC be a victim was removed by the amendment of s.71 which was inserted by s. 14 of the Justice and Security (Northern Ireland) Act 2007. Lord Kerr was also satisfied that s.71(2B) did not confine the NIHRC’s opportunity to act to circumstances where a specific act directed to a specific individual is identified.

Lord Kerr said that the theoretical interpretation of the act argued by the Attorney General would “run directly counter to the spirit of the amendment”, and that the NIHRC’s power to act on behalf of victims, and pre-emptively would be robbed of its essence if interpreted in this “narrow, literal sense” which he stated was illogical.

Lord Kerr added that if the NIHRC was “unable, by reason of a lack of standing, to bring proceedings to protect such women’s rights, I consider that they will be deprived of the practical and effective remedy” guaranteed by the right to an effective remedy under Article 13 ECHR. Lord Wilson agreed with Lord Kerr’s judgment.

Lord Reed 

Lord Reed (with whom Lord Lloyd-Jones agreed) stated that he agreed with Lord Mance’s conclusion that the NIHRC did not have standing. Lord Reed added that it was impossible to hold that the legislation was incompatible with articles 3 or 8 considering A, B and C v Ireland (2010) 53 EHRR 13.

Lady Black

Lady Black held that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 ECHR insofar as it prohibits abortion in cases of fatal foetal abnormality. Considering rape and incest, Lady Black said that she agreed with Lord Ree’s reasoning in relation to article 8 in that similar arguments had recently been advanced unsuccessfully in A, B and C v Ireland (2010) 53 EHRR 13.

Lady Black agreed with Lord Mance that the NIHRC did not have standing to bring the proceedings.

Conclusion 

Since Lord Mance, Lord Reed, Lady Black, and Lord Lloyd-Jones held that the NIHRC did not have standing to bring the proceedings. As such, the Court had no jurisdiction to make a declaration of incompatibility to reflect the majority view on the compatibility issues.

Dissenting from the majority of the Court, Lord Kerr, Lord Wilson, and Lady Hale held that the NIHRC did have standing and would have made a declaration of incompatibility.