Within a hair’s breadth of incompatibility: Abortion laws, devolution and strategic litigation

Updated: Aug 14, 2020

By Jing Min Tan

On 12th of February, we had the pleasure of hosting an excellent panel of speakers who engaged in a lively discussion on the agenda to repeal anti-abortion laws in Northern Ireland. In conversation were Dr David Russell (Chief Executive of the Northern Ireland Human Rights Commission), Dr Shona WilsonStark (Cambridge academic with substantial research in the area of abortion rights in Northern Ireland), Mr Darragh Mackin (solicitor on the Sarah Ewart case) and Helen Jennings (Cambridge Law finalist and Lead Convenor of a conference on “The Development of Abortion Rights in a Changing Europe”). Their dialogue gave a sobering account of the current state of law in Northern Ireland, and an insight into the tenacious efforts of those who fight to change it. Dr Wilson Stark opened the dialogue by giving a broad overview of the current law. The legislative regime in Northern Ireland on abortion concerns two Acts: Section 58 and 59 of the Offences Against the Person Act 1861, which criminalises the administration of drugs or use of instruments to procure abortion; and Section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The latter is an Act of the Northern Ireland legislature. Presently, the law prohibits abortion in cases of (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. In England and Wales, the Abortion Act 1967 creates a statutory defence to the 1861 Act, but it is not in force in Northern Ireland. The Northern Ireland Human Rights Commission challenged the compatibility of Northern Ireland legislation with Articles3, 8 and 14of the European Convention of Human Rights before the Supreme Court just last year. The case was brought on behalf of multiple victims who had no choice but to travel to England to get an abortion, after being unable to obtain health advice and assistance in Northern Ireland. Dr Russell said that the Supreme Courtcame within “a hair’s breadth” of issuing a declaration of incompatibility,butthe application ultimately failed because the NIHRC supposedly lacked standing to bring those proceedings. He was of the opinion that the problem could in principle be solved at Westminster: Sections 58 and 59 of the 1861 Act could be repealed, while the Secretary of State could intervene to order that the 1945 Act be repealed or amended to comply with the ECHR (s 26 Northern Ireland Act 1998). Dr Russell emphasized that NIHRC does not seek to extend the 1967 Abortion Act, currently in force in England and Wales, to Northern Ireland. Rather, as Dr Russell stated, its objective is limited to decriminalising abortion on the three grounds specified in its application to the Supreme Court, and as recognized by the European Court of Human Rights. It will stay faithful to Strasbourg jurisprudence, and its stance will closely follow the lines drawn there. Amongst the victims was Sarah Ewart, a mother who sought to terminate her pregnancy after receiving the devastating news that her baby would not survive outside the womb. After the Supreme Court refused the NIHRC’s application, Mrs Ewart has become a champion of abortion rights in Northern Ireland by bringing a case in her own name. Mr Mackin, Mrs Ewart’s solicitor, shared about the verbal abuse and media harassment she has been subjected to since making her views public in the NIHRC’s original application, and her vow to fight for women’s rights to abortion so that no one else has to go through what she suffered. Their objective is simple: to obtain the declaration of incompatibility that the Supreme Court refused to issue.They hope that their case will neuter the problem of standing, which caused the NIHRC’s application to fail in the Supreme Court.Fresh proceedings in her own name commenced the same day as the Supreme Court ruling; at the time of writing Mrs Ewart’s hearing has come to a close and awaits judgment. At hearing, the Attorney-General of Northern Ireland sought to argue that Mrs Ewart had no standing for two reasons: (1) she was not pregnant at the time, and (2) she had already given birth to a second child. The relevance of both arguments seems doubtful. Helen Jennings, a Law student here at Cambridge and UK Ambassador for Girls20, emphasized that Northern Ireland’s failure to provide access to termination services is a fundamental failure to comply with its obligations as a state. Campaigns such as In Her Shoes recount the stories of real women in Northern Ireland who wish to terminate their pregnancies for a multiplicity of reasons. State criminalisation means that these reasons are neither acknowledged nor respected, even though it may cause them great physical and emotional anguish. In the NIHRC judicial review case last year, the Supreme Court called the state of the law in Northern Ireland “deeply untenable and intrinsicallydisproportionate”,and “clearly needs radical reconsideration”,yet refused to issue a declaration of incompatibility. Perhaps the High Court in Belfast will act differently. CUHRLS is grateful to Dr Shona Wilson Stark for her comments before the publication of this post.

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