“Ireland is not bound by interpretations of the convention handed down by other national courts…”

It falls to Conor O’Mahony to tell everyone to calm down re the decision of the High Court in Belfast as a presage of a law change in the south:

Beneath the hue and cry, things are much less clear cut. As a party to the ECHR, Ireland is bound by interpretations of the convention handed down by the European Court of Human Rights in Strasbourg. However, Ireland is not bound by interpretations of the convention handed down by national courts in other member states. A decision of the Northern Ireland High Court only directly affects Northern Ireland.

To date, the Strasbourg court has not found that there is a general right to abortion under the convention, or that a failure to allow abortion in cases of fatal foetal abnormality or rape violates the ECHR. In 2010, in A, B and C v Ireland, the court rejected an argument that Irish law violates the convention by failing to allow abortion on health or wellbeing grounds.

Translated: there’s quite a long way to go before the ruling leads to a change in the domestic law (which was the most explicit focus of Mr Justice Horner’s judicial activism).

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  • chrisjones2

    “Mr Justice Horner’s judicial activism”

    You are right that Ireland has the right to decide for itself – but it is also bound by exactly the same laws as the UK . It is a bit of a misrepresentation to suggest that this decision was “judicial activism”. The Judge was simply doing his job. He was simply applying the law and it’s a long and analytic analysis of this case and the core underlying issues

    The Judgement is at

    https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2015/%5B2015%5D%20NIQB%2096/j_j_HOR9740Final.htm

    and i have highlighted below what for me seem to be the key elements.

    He actuallly references the Irish abortion decision in Strasbourg before point out that later cases seem to run counter to the key points in that Judgement. However he then goes on to say at Para 41

    ” Strasbourg has sought to avoid the issues such as when the right to life begins eg see Vo v France [2005] 40 EHRR 12 and in what circumstances, if any, abortion should be available. Instead the Court has left these matters to the individual State to make a decision within the margin of appreciation which the State enjoys.”

    and

    “Of course, this Court is not being asked to change or develop the law. This Court is simply being asked for its opinion as to whether or not the present law on abortion in Northern Ireland containing no exceptions for SMFs, FFAs and those pregnancies which have resulted from sexual crime is Convention compliant. It will always be a matter for the Assembly to determine whether the law should be changed.” (Para 46)

    So I agree that its up to Ireland to sort its own problems out and for the UK to resolve its own

    As for it being a long time until the law changes , perhaps. But the issue now moves to a remedy hearing. I seem to remember from class long ago that if the Judge issues a certificate of Incompatibility the law has to be placed before the Parliament within a set time. Its then for the Parliament to decide how to proceed

    What I am not clear on is what happens if the NI assembly led by the flat earthers in the DUP, refuse to amend the law to make it compliant. Does the case then potentially go to Strasbourg or , as the contracting state in the Convention, does the UK Government have to intervene?

    Where is a constitutional lawyer (or 2) when you need them

    KEY POINTS (FOR ME – FEEL FREE TO PICK YOUR OWN)

    “When all the political parties signed up to the constitutional settlement which was enacted in the 1998 Act, they did so on the basis that one of the foundation stones of the new Northern Ireland was that its laws would be Convention compliant. This has had an effect on a number of different areas where there are strongly held religious and moral beliefs: eg adoption – see Re G (Adoption: Unmarried Couple) [2008] UKHL 38.”

    “[93] There can be no doubt that the Convention necessarily has had the effect of making Northern Ireland a more tolerant and liberal society, one that is more pluralistic and broadminded. Whether this is a good thing is not a matter for the Court. But it is one of the Convention’s objectives. The Convention does not require anyone to give up his or her deeply held beliefs on certain moral or religious matters. It just means that in respect of certain rights protected by the Convention one section of the community, whether in the majority or not, is no longer able to deny to others whether by the imposition of criminal sanctions or otherwise, the ability to enjoy those protected Convention rights.”

    “[109] The position in Northern Ireland law can reasonably be summed up by concluding that the unborn child does not enjoy a full “right to life” under Article 2. However pre-natal life does have some statutory protection in respect of some of its attributes: see 7.63 of the Law of Human Rights.”

    “[142] It is asserted that the impugned provisions are proportionate and that as in the A, B and C case there exists a right to travel to England for Northern Irish women who have become pregnant and who want to seek an abortion. I have three problems with this argument, although it is fair to say that it did not trouble Strasbourg. They are:

    (i) If it is morally wrong to abort a foetus in Northern Ireland, it is just as wrong morally to abort the same foetus in England. It does not protect morals to export the problem to another jurisdiction and then turn a blind eye.

    (ii) If the aim is to prevent abortion, then it is surely no answer to say that abortion is freely available elsewhere and that necessary services can be easily accessed in an adjacent jurisdiction. There is no evidence before this Court, and the Court has in no way attempted to restrict the evidence adduced by any party, that the law in Northern Ireland has resulted in any reduction in the number of abortions obtained by Northern Irish women. Undoubtedly, it will have placed these women who had to have their abortions in England under greater stress, both financial and emotional, by forcing them to have the termination carried out away from home.

    (iii) There can be no doubt that the law has made it much more difficult for those with limited means to travel to England. They are the ones who are more likely to be greatly affected in their ability to terminate their pregnancy if they cannot obtain charitable assistance. The protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy. That smacks of one law for the rich and one law for the poor.”

    [148] For the reasons that I have already given, I do consider that it is a legitimate aim to keep in place a prohibition on abortion where the foetus will be viable but the unborn child faces non-fatal disability. There should be equality of treatment between, on the one hand, the foetus which will develop into a child without physical or mental disability and, on the other hand, the foetus which will develop into a child with a physical and/or mental disability which is non-fatal. However, it is illegitimate and disproportionate (see below) to place a prohibition on the abortion of both a foetus doomed to die because a fatal abnormality makes it incapable of an existence independent of the mother’s womb and the viable foetus conceived as a result of sexual crime, but incapable of an independent existence.

    [161] Sexual crime is the grossest intrusion on a woman’s autonomy in the vilest of circumstances. In some cases the sexual crime can result in the woman becoming pregnant. The woman’s pregnancy is not a voluntary act. It has been forced upon her. She did not ask to carry a foetus, nor did she want to carry a child to full term. In Northern Ireland she is obliged to do so or risk criminal prosecution if she terminates the pregnancy unless she falls within the Bourne exceptions. Weighed on the scales is the right of life of the foetus, the product of this criminal wrongdoing. As previously discussed, the foetus does not have any Article 2 rights. It has limited protection provided by statute when it can exist independently of the womb.

    [162] Further, there can be no doubt as I have observed that the current law places a disproportionate burden on the victim of sexual crime. She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility but is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both. For many weeks after the unlawful impregnation the foetus remains incapable of an existence outside the mother’s womb. The law makes no attempt in those particular circumstances to balance the rights of the woman. In doing so, the law is enforcing the prohibition of abortion against an innocent victim of a crime in a way which completely ignores the personal circumstances of the victim. Weighed in the balance is the foetus, incapable of an independent existence for many weeks into the pregnancy. By imposing a blanket ban on abortion, reinforced with criminal sanctions, it effectively prevents any consideration of the interests of any woman whose personal autonomy in those circumstances has been so vilely and heinously invaded. A law so framed, can never be said to be proportionate. The separate issue of when a foetus becomes capable of an independent existence as I have previously observed is primarily a medical matter, although the courts have in the past have had to give rulings on this issue: e.g. see C v S (1988) QB 135.”

  • chrisjones2

    It appears that the Minister and ihsi Department are determined to ignore the law

    http://www.bbc.co.uk/news/northern_ireland

    As the judge said

    “it is illegitimate and disproportionate (see below) to place a prohibition on the abortion of both a foetus doomed to die because a fatal abnormality makes it incapable of an existence independent of the mother’s womb”

    The only conclusion can be that the DUP is determined to wilfully torture and degrade and put the lives at risk of women in this awful position

  • chrisjones2

    I posted too soon. They were merely stupid in releasing the guidance just after the verdict and before they could possibly have read it ….thereby undermining any appeal I suggest unless they are prepared to change it

    You can sense Ford’s frustration in his comments!!!

    http://www.bbc.co.uk/news/uk-northern-ireland-politics-35000192