Les Allamby highlights the importance of human rights law in challenging morally contentious legislation in Northern Ireland.
The Northern Ireland Human Rights Commission challenged adoption legislation under ECHR articles 8 and 14. The High Court and, on appeal, the Court of Appeal upheld the legal challenge.
One of the overlooked features of life in Northern Ireland is that moral issues long resolved by the legislature elsewhere in the UK remain contentious politically and as a result become subject to court action. Four specific areas have been before the courts recently: the prohibition on unmarried and same-sex couples from being considered as adoptive parents; a lifetime ban on men who have had sex with men from donating blood; the absence of provision for gay marriage; and the prohibition on abortion except in very narrow circumstances. This article sets out the current state of play on all these issues, which provide ample evidence of the continuing value of the Human Rights Act 1998 (HRA).
The Adoption (Northern Ireland) Order 1987 SI No 2203 (NI 22) effectively prevented unmarried couples (including same-sex couples) from being considered as adoptive parents. The Northern Ireland Human Rights Commission (NIHRC) challenged the legislation under articles 8 (right to family and private life) and 14 (freedom from discrimination) of the European Convention on Human Rights
(ECHR). The case was taken in the NIHRC’s own name under its statutory powers contained within the Northern Ireland Act 1998.
The High Court and, on appeal, the Court of Appeal upheld the NIHRC’s legal challenge and also dismissed an argument from the Attorney General for Northern Ireland that the commission couldn’t take such a challenge without a victim (Re application by NIHRC  NICA 37
). The Court of Appeal drew on the House of Lords case Re G (children)  UKHL 43
, which held that the (then) restriction of consideration for adoptive parents to married couples engaged ECHR rights and was irrational, disproportionate and unjustified. The court decided it was bound by that decision and that, under X and others v Austria App No 19010/07, 19 February 2013
, the European Court of Human Rights made clear that there is a heavy onus on the state to justify differential treatment of unmarried gay couples, and further there was no rationale for excluding couples who are in a civil partnership from being considered as adoptive parents.
The Department of Health (DoH) in Northern Ireland subsequently amended guidance to allow unmarried heterosexual and same-sex couples to be considered as adoptive parents. However, the legislation remained unchanged as successive health ministers from the Democratic Unionist Party refused to countenance modernising the legal framework for adoption. Following a change of minister after the 2016 Northern Ireland Assembly election, the Sinn Féin minister launched a public consultation on a draft Adoption and Children (Northern Ireland) Bill, which included provision to reflect the Court of Appeal judgment. The consultation closes on 10 April 2017. The current political status, with elections in March 2017, means the future of the bill remains uncertain.
In 1981, a lifetime ban on blood donation from men who have sex with other men was introduced throughout the UK in response to the HIV/AIDS crisis. The ban was reduced to one year in England, Scotland and Wales in November 2011, but an equivalent change was not introduced in Northern Ireland. A judicial review was successfully launched against the DoH in 2013 and subsequently appealed to the Court of Appeal. The appeal raised a number of matters including: whether the issue fell to the minister responsible for the department or the Secretary of State for Health’s responsibilities; whether the lifetime ban was contrary to European law; and the High Court’s conclusion that the minister’s decision was predetermined by his Christian beliefs and infected with apparent bias.
In March 2016, the Court of Appeal held (Re application by JR65 for judicial review  NICA 20
) that the minister in the DoH was the responsible decision-maker but that the decision should have been brought to the attention of the Northern Ireland Executive, and should be made by the minister on an informed and proportionate basis. The court also held that the minister’s decision was not based on bias and a majority held that the maintenance of a permanent deferral was not contrary to EU law.
Following the judgment, the health minister announced, after consultation with the Executive, that the lifetime ban would be lifted and replaced with a 12-month prohibition. The leave application to the Supreme Court against the judgment proceeded no further.
Same-sex marriage became legal on 29 March 2014 in Britain; in Ireland it was introduced in November 2015, following a referendum where 62 per cent voted in favour of legalising it. In Northern Ireland, motions in favour of same-sex marriage have come before the Assembly on five occasions. The first four failed on a narrow majority. The most recent vote in November 2015 succeeded by 53 to 52 votes but was blocked by the Democratic Unionist Party issuing a petition of concern, a Northern Ireland constitutional device that requires cross-community support of both designated nationalists and unionists in the Northern Ireland Assembly. In December 2015, two challenges were heard together in the High Court. The first was against the Northern Ireland Department of Finance and Personnel (as it then was) on the grounds that the absence of same-sex marriage was contrary to ECHR article 8. The second challenge was a more nuanced one from a gay couple who had married in England and wished to clarify their family rights on returning to Northern Ireland. Judgment was reserved in both cases and remains outstanding.
Termination of pregnancy
The Abortion Act 1967 was not extended to Northern Ireland. Instead, the law in Northern Ireland is governed by Offences Against the Person Act 1861 ss58 and 59, and Criminal Justice Act (Northern Ireland) 1945 s25, which covers child destruction.
In effect, obtaining an abortion in Northern Ireland is a criminal offence carrying a maximum sentence in some circumstances of life imprisonment. Child destruction and assisting in the procurement of an abortion are also criminal offences. The common law allows for a lawful termination of pregnancy in circumstances where it is necessary to preserve the life of a woman or where there is a risk of a serious and adverse effect on a woman’s physical or mental health that is either long-term or permanent. Guidance on how to interpret the common law had been contested and subject to considerable litigation lasting almost 10 years (see Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety  NICA 37
and Re application by the Society for the Protection of Unborn Children for judicial review  NIQB 92
). Following prolonged correspondence with the Northern Ireland Department of Justice (DoJ), the NIHRC took a judicial review in its own name against the department, challenging the current failure to provide for lawful termination in cases of fatal foetal abnormality, including serious malformation of the foetus, and for victims of rape and incest. The action was based on the current law being contrary to ECHR articles 3 (prohibition of torture and inhuman and degrading treatment), 8 (the right to private and family life) and 14 (freedom from discrimination). In addition, the challenge cited a number of international human rights treaties including the UN Convention on the Elimination of All Forms of Discrimination Against Women
and the UN Convention on the Rights of the Child
where monitoring bodies had called for the decriminalisation of abortion and that access to terminations be granted in the circumstances canvassed by the NIHRC.
A number of interested parties provided supportive submissions, namely the Family Planning Association, Amnesty International, the Alliance for Choice and Sarah Ewart (a young woman who suffered a fatal foetal abnormality in pregnancy and who had to travel to England for a termination). The Northern Bishops, the Society for the Protection of Unborn Children and Precious Life provided written submissions opposing the application. The Attorney General for Northern Ireland also appeared as a party to oppose the application.
In November 2015, the High Court ruled in favour of the commission holding that the current law in respect of fatal foetal abnormality and victims of sexual crimes was contrary to article 8 and a woman’s right to personal autonomy (Re application by NIHRC for judicial review; re the law on termination of pregnancy in Northern Ireland  NIQB 96
). The court also held that a foetus has no legal status, with any status being inextricably linked to the rights of the woman. The court, however, rejected the claim that the current law was contrary to the ECHR in the case of serious malformation of the foetus and held that in cases of fatal foetal abnormality and sex crimes it was neither contrary to article 3 nor article 14.
The judge also upheld the NIHRC’s right to take the case in its own name without a victim. A declaration of incompatibility under the HRA was issued after the judge concluded it was not possible to read down the existing legislation to remedy the human rights breach.
The judgment was appealed by the DoJ and the Attorney General, and cross-appealed by the NIHRC to keep all the legal issues in play. The Court of Appeal heard the case in June 2016 and at the time of writing the judgment was due on 6 March 2017. Meanwhile, the Attorney General has sought notice to require the Court of Appeal to refer the devolution issue of whether the NIHRC can take the case in its own name to the Supreme Court. The commission has asked, instead, that the court exercises its powers not to stay proceedings. This matter now remains before the court. Whatever the outcome, the Court of Appeal has already acknowledged the likelihood of the whole case eventually reaching the Supreme Court.
During the life of the case, the DoJ issued a document
proposing to amend the law to allow for terminations in cases of fatal foetal abnormality and to consult on whether to extend this to victims of sex crimes. Following consultation, the department announced its intention to bring forward legislation covering fatal foetal abnormality only. The proposed legislation was unable to make it on to the Northern Ireland Executive’s agenda.
In early 2016, two private members’ bills were lodged to extend termination laws in Northern Ireland – both failed. David Ford, the former minister of justice from the Alliance Party, has introduced a further private members’ bill to allow lawful termination in cases of fatal foetal abnormality. The Abortion (Fatal Foetal Abnormality) Bill received its first reading on 6 December 2016.
New guidance on the law was issued in late 2016 by the DoH though no mention was made of the current legal challenge. The guidance itself had been the subject of litigation covering a period of almost 10 years (see above).
In April 2016, a young woman who had bought pills to induce an abortion was prosecuted and given a three-month sentence suspended for a year. Leave for judicial review was granted to challenge a decision to prosecute the mother of a 15-year-old girl who bought pills over the internet. The full hearing is due in May 2017.
The cases before the courts over the past few years illustrate what happens when a legislature is unable to effectively resolve moral issues. The pace of change is glacial in Northern Ireland; nevertheless, a number of opinion surveys suggest that the public’s attitudes are changing in favour of a more permissive approach to access to termination of pregnancy and to gay marriage in line with the challenges before the courts. The cases also demonstrate the value of the HRA in Northern Ireland and why human rights and equality, which underpin the Belfast Agreement, remain an important part of the everyday lives of people in Northern Ireland.