On 29 June, the Court of Appeal in Northern Ireland handed down its judgment in Attorney General for Northern Ireland and Department of Justice v Northern Ireland Human Rights Commission  NICA 42
, allowing the appeals against a High Court decision ( NIQB 96
) that the law on abortion in Northern Ireland was contrary to the right to private and family life under article 8 of the European Convention on Human Rights.
All three judges noted that reforming the law was a matter for the Northern Ireland executive. In a crumb of comfort, the lord chief justice, Sir Declan Morgan, suggested providing a more expansive view of the common law developed in R v Bourne  1 KB 687, allowing for a termination in circumstances where a woman is a ‘physical and mental wreck’, which ‘requires the court to determine what is reasonably tolerable in today’s society. That is not to be defined by the values of the 1930s’ (para 79). The two other judges, Gillen and Weatherup LJJ, did not support this view. Weatherup LJ took a provisional view that the current law in Northern Ireland was contrary to article 8.
In an unusual move, the Court of Appeal invited an application for leave to the Supreme Court to be made immediately and indicated it would grant any application.
The Northern Ireland Human Rights Commission has applied for leave and will seek an expedited hearing, promising to ‘continue to seek a change to the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy locally in circumstances of serious malformation of the foetus, rape or incest, without being criminalised for doing so’. The human rights issues will almost certainly open up again the matters canvassed in R (Nicklinson and another) v Ministry of Justice  UKSC 38
as to where any line should be drawn between the courts and the executive on contested issues of morality.