Draft guidelines follow swiftly from High Court judge’s rule that current Northern Irish law on abortion is in breach of women’s Art 8 rights
Following a landmark High Court judgment yesterday (30 November 2015), draft guidelines have been issued by the Northern Irish Health Minister today that relate to abortion law and practice in Northern Ireland, and how it could undergo a drastic alteration in the near future.
Sitting in Belfast yesterday, Mr Justice Horner ruled that the law on abortion in Northern Ireland as it currently stands breaches human rights law - a judgment that could lead to the extension of current legislation and, ultimately, see women being allowed terminations in cases of rape, severe or fatal foetal abnormalities (FFAs), and incest.
Speaking to the court at the conclusion of the judgment, Horner J listed the reasoning behind his decisions, and made reference to Art 8 of the Human Rights Convention (a right to private and family life), and the breaching thereof, in particular:
‘…This Court intends to make a declaration of incompatibility, subject to further arguments on the issues identified above, for the following reasons:
(i) Firstly for the reasons given, the impugned provisions identified are incompatible with Article 8(1) of the Convention in respect of those women who carry FFAs and/or who are pregnant as a result of sexual crime.
(ii) Secondly, and most importantly, to bow to the demand not to make a declaration of incompatibility would be to abandon for the immediate future those women who become pregnant and have to carry a foetus with a fatal foetal abnormality or who become pregnant as a consequence of a sexual crime. They are the ones who are entitled to have their Article 8 rights vindicated by a declaration of incompatibility.
(iii) The incompatibility is simple to identify and straightforward to correct as is demonstrated by the legislation in other jurisdictions. In the case of an FFA, a requirement can be imposed before any termination takes place, that two qualified medical consultants must agree that the foetus is incapable of an independent existence outside the mother. In respect of rape and/or incest, the right to abortion can be made dependent on a certificate from the police officer in charge of the investigation and/or the prosecutor that the pregnancy is a consequence of a sexual crime. The right to an abortion must be restricted to the period immediately before the foetus becomes capable of living independently outside the womb. (It is also important to note that with an SMF, it would be very difficult, if not impossible to define what is an SMF and to give advice as to when and how to draw the line in respect of different foetal abnormalities. The remarks of Lord Wilson at paragraph  in Nicklinson are particularly pertinent.)
(iv) These highly sensitive matters have not been debated by the Assembly and are unlikely to be debated by the Assembly in the foreseeable future.
(v) The history of the Northern Ireland Assembly suggests that when there are contentious religious and moral issues that divide the political classes, there is little prospect of progress given the present constitutional settlement. This is not intended as a criticism, but rather to reflect what has happened in the past. The Guidance Document produced in response to the Court of Appeal judgment in Family Planning Association of Northern Ireland v Minister of Health and Social Services and Public Safety took some 8½ years to produce. The consultative document is intended to deal with the issues before this Court has not only taken an inordinately long time to be produced, but it has failed to deal with pregnancies which are a consequence of sexual crime. There is every reason to accept as true, the comments of the First Minister that any legislative proposals for the termination of pregnancy regardless of the category are doomed. The submissions on behalf of the Attorney General simply serve to underline this.
(vi) Finally, there has been no hearing before any court in Northern Ireland on these particular issues which would be binding or which requires this court to make “a volte face”.
For the reasons given, the court has determined that the failure to provide exceptions to the law prohibiting abortion in respect of FFAs at any time and pregnancies due to sexual crime up to the date when the foetus becomes capable of an existence independent of the mother, is contrary to Article 8 of the Convention.’
Under one law dating back to the nineteenth century (namely the Offences Against the Persons Act 1861), medical specialists in Northern Ireland today could face life imprisonment should they carry out abortions even under the present conditions, which only allow terminations if the mother’s life is endangered or there is a potential serious risk to her mental or physical health if the pregnancy is continued. The Abortion Act 1967 has always applied to every part of the UK except Northern Ireland – thus making yesterday’s ruling truly historical.
Over 1000 women and girls – including those legally considered minors – travel to Britain from Northern Ireland each year seeking terminations. In 2013, 15% of all abortions carried out in England and Wales on women habitually resident outside of Britain involved Northern Irish pregnancies.
The Department of Justice in Northern Ireland now has 6 weeks in which to decide whether or not to appeal the judgment. The guidelines reflecting future changes to abortion law will be made public after consideration from various members of the Northern Ireland Executive.
Family Law will endeavour to keep readers updated with any future news regarding this issue.