On the 7th June 2018 the Supreme Court finally delivered its judgement on Northern Ireland’s abortion laws. Activists and lawyers have been waiting for the ruling with baited breath. The decision comes a few weeks after the referendum in the Republic of Ireland to repeal the Eighth Amendment.
It’s fair to say the judgement wasn’t quite what people expected. The case was, as Lady Hale said, ‘an unusually difficult case to resolve.’
In a sprawling 144 page judgement four of the seven judges found that the Northern Ireland Human Rights Commission (NIHRC) did not have standing to take the case in the first place. However, a majority of the judges also made it very clear that, with regard to fatal fetal abnormality, they consider Northern Ireland’s abortion laws to be incompatible with Article 8 of the European Convention. A smaller majority found that this was also the case regarding abortion law in cases of rape and incest. Because the NIHRC had no standing to bring the case, however, the judges could not issue a declaration of incompatibility. The judges’ comments on the human rights issue are obiter dicta i.e they are not legally binding.
There is a lot to unpack from yesterday’s judgement. As others have pointed out, this is the first time in recent years that the Supreme Court has failed to identify a lead majority judgement. The whole thing has been described, in some corners, as a bit of a mess. Tim O’Connor, on twitter, has raised the issue of why the court made such wide ranging obiter comments. There will no doubt be further debates about the separation of powers.
This is not the outcome the NIHRC, activists or campaigners were hoping for. Pro Life groups have welcomed the Judgement.
Despite the complicated judgement, our politicians should study it carefully. If I were pro life, I would not declare a victory.
This was an important judgement for human rights in Northern Ireland. The court has added another string to the bow of activists campaigning for reform. We should be embarrassed by the comments of the Supreme Court with regard to human rights. This judgement confirms what most of us already know: we need change. As Lady Hale says, ‘the courts have no jurisdiction to declare the majority view it does not mean that it can be safely ignored.’
In the run up to the ruling, the question of standing in relation to the NIHRC was barely discussed. This isn’t surprising. Standing isn’t a particularly sexy or interesting topic (for some). The Court of Appeal and the High Court both considered that the NIHRC had standing. In the end, however, this issue determined the outcome on the day.
A majority of the court thought the Commission’s powers under s69 and s71 of the Northern Ireland Act 1998 do not include instituting proceedings where the only complaint is primary legislation compatibility with the European Convention. Lord Mance, in his judgement, said that the, ‘present proceedings were not instituted by any unlawful act or any actual or potential victim of it.’
Three of the judges disagreed. Lady Hale argued that the Human Rights Act provides ‘two methods to ensure compliance with Convention Rights.’ One is for victims to bring proceedings in respect of an unlawful act, the other is to bring proceedings via judicial review, ‘irrespective of whether there has been any unlawful act.’ She says, earlier in her judgement, that ‘there is no doubt that the NIHRC could have readily found women who are either are or would be victims of an unlawful act under the Human Rights Act.’
It is obvious, from reading the judgement, that this aspect of the case provoked a lot of debate among the judges. Lady Hale says the question of whether the Commission needs a ‘potential victim’ is an ‘arid question.’ In his judgement Lord Kerr says the judges who believe the NIHRC doesn’t have standing are, ‘departing from well established authority.’
This is already provoking debate. Some believe it is unfair to expect a human rights organisation to have to wait for a potential victim before acting.
It is a disappointing position for the NIHRC to be in after years of going through the courts. The case was lost on a technicality. As it stands today, the law remains the same.
The human rights aspect of the judgement will be poured over by law students in future. It is a bittersweet read for campaigners. So much of it is, ‘look what could have happened.’ Nonetheless, this aspect of yesterday’s judgement is significant.
By a majority of five to two, the court believes that the law in Northern Ireland relating to fatal fetal abnormality is incompatible with Article 8 of the European Convention. By a majority of four to three it believes that the law regarding rape and incest is also incompatible with the same article. A majority did not believe the current law was incompatible with Article 3. Two judges did and one, Lady Hale, declined to comment. Lord Reed gives a conservative judgement with regard to human rights and says he would not make a declaration. He does remark that the difficulty with the current case is that it doesn’t allow the court to examine individual circumstances.
Our MLAs should note, with interest, the conversation about the Northern Ireland Assembly. Discussions in the Chamber are included as part of the judgement. Some of the judges think the Assembly is not entirely opposed to reform. Lord Mance doesn’t believe opinion polls should prevail over the legislature. Lord Kerr believes that, in the absence of any firmly expressed view, the court should have no regard to the views of the Assembly when deciding if the law is compatible under Article 8.
The court would have made a declaration of incompatibility if it had not been for the technical issue with the NIHRC.
There is a risk in relying on comments that are obiter dicta. If another case makes it way to the Supreme Court, the panel of judges will probably be different. The current judgement twists and turns with each of the judges taking different views on different aspects of human rights law.
Our politicians can’t sugar coat this though. Our laws have been condemned in the highest court in the United Kingdom, our treatment of women and pregnant people laid bare. Some of the judgements, Lord Kerr’s in particular, are powerful and damning.
Lord Mance, in his judgement, states that the
‘law treats the pregnant woman as a vehicle who must…be expected to carry a foetus to birth, whatever the other circs, and whatever her wishes, as long as this experience does not end her life or ruin her health.’
Lord Kerr, in his judgement, says:
‘It is not less than that they cede control of their bodies to the edict of legislation passed (in the case of the 1861 Act) more than 150 years ago and (in the case of the 1945 Act) almost 75 years ago. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country. They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire……..What is that, if it is not humiliation and debasement?’
These comments are not legally binding, but they vindicate of the position of the NIHRC, activists and campaigners. The law with regard to abortion in Northern Ireland is as Lord Mance says, ‘untenable’ and requires, ‘radical reconsideration.’ The judgement will give activists greater confidence to push Westminster to legislate for abortion reform in Northern Ireland. Parliament has some wiggle room because no declaration of incompatibility was issued. It would be wrong for the legislature to do nothing.
Lord Mance, in his judgement, believes that the outcome of any future litigation is ‘inevitable.’ It is only a matter of time before we finally get a declaration of incompatibility. Women like Sarah Ewart shouldn’t have to do the heavy lifting . The question is not if Northern Ireland’s abortion laws will change, but when.
Sarah is a writer and lawyer from Belfast.