Abortion law in Northern Ireland: Appetite for reform remains unsated
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Marc Bloomfield
Les Allamby outlines developments in the law on abortion in Northern Ireland, which, despite changing attitudes, are moving at a painfully slow pace.
It is essential to a woman’s equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.
Ruth Bader Ginsburg at her nomination confirmation hearing for the Supreme Court, July 1993.
The year 2018 was a momentous one for legal reform of a woman’s right to abortion in both parts of Ireland. This article focuses on Northern Ireland, where the issue of legal reform remains unresolved
On 25 May 2018, Ireland voted by a two-to­one majority to repeal the Eighth Amendment to the Constitution, which had effectively given equal rights to women and the unborn and cemented the country’s restrictive law on abortion. The repeal paved the way for the Health (Regulation of Termination of Pregnancy) Act 2018, permitting abortion in the first 12 weeks of pregnancy and later in cases where a woman’s life is at risk, there is a danger of serious harm to her health and in cases of fatal foetal abnormality. Meanwhile in Northern Ireland, the case for reform has focused on human rights-based legal challenges and public policy debates.
The law in Northern Ireland
Northern Ireland law on abortion stems from Offences Against the Person Act (OPA) 1861 ss58 and 59 and Criminal Justice Act (NI) 1945 s25. In essence, obtaining or assisting a woman to obtain an abortion is a criminal offence attracting up to a life sentence save in very limited circumstances. The exceptions derived from common law are where continuing a pregnancy would be a risk to the life of the woman or she would face serious and long­term harm to her physical and mental health.1See Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 39 at paras 47–96 and R v Bourne [1939] 1 KB 687. Guidance to clinicians, nursing staff and others on how to interpret those exceptions became a legal battle in itself, occupying the courts for almost a decade.
Elsewhere, the UN international human rights treaty monitoring bodies have consistently criticised Northern Ireland’s criminalisation of abortion. In particular, in February 2018, the Committee on the Elimination of Discrimination against Women published the results of its inquiry into Northern Ireland’s law.2Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: report of the committee, CEDAW/C/OP.8/GBR/1, 23 February 2018. See also, for example, UN Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/6, 14 July 2016 at para 62 and UN Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/5, 12 July 2016 at para 65. The inquiry concluded that the current law was both a grave and a systematic violation of women’s human rights under the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The committee’s report recommended the repeal of OPA 1861 ss58 and 59 and, alongside decriminalisation, the adoption of laws to provide legal abortion in cases where there is a threat to the woman’s physical or mental health, a severe foetal impairment and in cases of pregnancy caused by rape or incest.
The UK government, in its response, rejected the conclusions of grave and systematic violations of rights under CEDAW but promised a substantive response to the findings once devolved government was restored in Northern Ireland. It noted that judgment was awaited on a Supreme Court legal challenge and the publication of a joint Department of Health (DoH) and Department of Justice (DoJ) report on the law and termination in cases of fatal foetal abnormality (see below).3Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: observations of the United Kingdom, CEDAW/C/OP.8/GBR/2, 23 February 2018.
The legal challenges
The Northern Ireland Human Rights Commission (NIHRC) took a judicial review in its own name, arguing that the failure to provide abortion in cases of serious malformation of the foetus, including fatal foetal abnormality, and pregnancies due to sexual crimes was contrary to the European Convention on Human Rights, in particular articles 3 (freedom from torture, inhuman and degrading treatment), 8 (right to private life) and 14 (freedom from discrimination). A declaration of incompatibility was sought under the Human Rights Act 1998. The DoJ and the Attorney General for Northern Ireland opposed the application. Both also challenged the right of the NIHRC to take the case without a victim. A number of organisations also intervened, both in support of and in opposition to the application.
In November 2015, the High Court upheld the challenge on article 8 grounds in cases of fatal foetal abnormality and for victims of sexual crimes on grounds of impugning a woman’s right to bodily integrity and autonomy. The right of the NIHRC to take the case under its own powers was confirmed and a declaration of incompatibility was granted (Re application for judicial review by Northern Ireland Human Rights Commission [2015] NIQB 96). The judgment was appealed and cross-appealed to keep all issues in play. In June 2017, the Court of Appeal upheld the appeal, ruling that the issue was primarily a matter for the Northern Ireland Executive and Assembly. However, it accepted that the NIHRC had the powers to take the case in its own name (Attorney General for Northern Ireland and Department for Justice v Northern Ireland Human Rights Commission [2017] NICA 42).
The Supreme Court heard the subsequent appeal in October 2017 and gave judgment in June 2018 (Re application by Northern Ireland Human Rights Commission for judicial review [2018] UKSC 27). In its judgment, by a majority of four to three, the Supreme Court held that the NIHRC did not have standing to pursue the case in its own name without a victim. However, most unusually, the court decided nonetheless to address the substantive questions before it. By five to two (Lady Hale, Lord Kerr, Lord Mance, Lord Wilson and Lady Black), the Supreme Court held that the law in Northern Ireland was incompatible with article 8 in cases of fatal foetal abnormality and by four to three (Lady Hale, Lord Kerr, Lord Mance and Lord Wilson) in cases of pregnancy caused by rape or incest. Two judges (Lord Kerr and Lord Wilson) held the law in these circumstances amounted to inhuman and degrading treatment under article 3, while others did not accept that the threshold had been met in the absence of being able to consider an individual woman’s particular circumstances.
Lord Mance, in the conclusion to his judgment, encapsulated where that left matters in holding:
… the present legislative position in Northern Ireland is untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest. My conclusions about the commission’s lack of competence to bring these proceedings means that there is however no question of making any declaration of incompatibility. But the present law clearly needs radical reconsideration. Those responsible for ensuring the compatibility of Northern Ireland law with the convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act (para 135).
Legal reform and public opinion
The DoJ issued a consultation document in 2014 seeking reform in cases of fatal foetal abnormality and views on whether changes should be extended to victims of rape and incest.4The criminal law on abortion: lethal foetal abnormality and sexual crime – a consultation on amending the law by the Department of Justice, DoJ, 8 October 2014. Following the consultation, the DoJ decided that the law should be changed in cases of fatal foetal abnormality only. The Northern Ireland Executive blocked this. Amendments to a Justice Bill from individual members of the Northern Ireland Assembly to introduce provision to allow for termination in cases of fatal foetal abnormality and for victims of sex crimes were defeated in February 2016.
Just before the debate on the amendments, the (then) minister of health, Simon Hamilton of the DUP, agreed to establish a joint working group within the DoJ and the DoH on the impact of the law in cases of fatal foetal abnormality. The working group’s report was completed but not published before the Supreme Court hearing. It found that health professionals both were unable to fully meet their duty of care to their patients and felt the current situation to be professionally untenable.5Report of the Working Group on Fatal Fetal Abnormality: healthcare and the law on termination of pregnancy for fatal fetal abnormality – proposals to the minister of health and the minister of justice, 11 October 2016, DoJ/ DoH, 25 April 2018.
As the NIHRC’s legal challenge unfurled, and with uncanny timing, matters developed through Westminster. On 29 June 2017, the day before judgment was given in the Court of Appeal, the government, in response to a backbench amendment led by Stella Creasy MP, announced that women from Northern Ireland would no longer be charged for abortions received in England. In the week of the Supreme Court hearing, on 23 October 2017, the government announced that this support would extend to paying for travel and accommodation on a means-tested basis. Similar arrangements to provide free treatment are also now in place in Scotland and Wales.
The case for legal reform is supported by public opinion. In 2016, the Northern Ireland Life and Times Survey sought views on abortion law (see Attitudes to abortion in Northern Ireland, Research Update No 115, ARK, June 2017). In the circumstances canvassed, public opinion has moved towards a more permissive view on legal reform over time. The findings of the survey are summarised in the table below (see also page 2 of the research update).
Views on legality of abortion
In cases of:
Definitely or probably should be legal (per cent)
Definitely or probably should not be legal (per cent)
Don't know (per cent)
Fatal foetal abnormality
81
16
4
Serious abnormality where a baby may not survive beyond birth
73
23
5
Rape or incest
78
19
4
Where there is a serious threat to a woman's physical or mental health
76
18
6
Where a woman wants an abortion because she does not want to have children
34
60
6
Note: total percentages exceed 100 in some instances due to rounding up.
Findings from the 2016 Northern Ireland Life and Times Survey
Where are we now?
The issue of criminalisation remains a real and practical one. In 2016, a young woman was prosecuted after remains of afterbirth were found by a flatmate who reported her to the police. As a result, she was prosecuted, convicted and received a three-month suspended sentence. In November 2018, a High Court challenge was heard against the decision of the Public Prosecution Service to prosecute the mother of a 15-year-old who gave her daughter abortion pills to induce a termination after she became pregnant when in an abusive relationship. In February 2019, Sarah Ewart, a woman who intervened in the NIHRC’s case and gave affidavit evidence of her experience of being pregnant with a fatal foetal abnormality, had her individual challenge to the existing law in cases of fatal foetal abnormality heard. In both cases, judgment is awaited.
In 2017, 861 women travelled from Northern Ireland to England or Wales to obtain an abortion6Abortion statistics, England and Wales: 2017, Department of Health and Social Care, June 2018; revised December 2018. (figures are not available for Scotland) while in 2017/18, 32 women underwent medical abortion in Northern Ireland.7Northern Ireland termination of pregnancy statistics 2017/18, Department of Health, 23 January 2019. According to local family planning organisations, the former figure is an underestimate, as many women do not give Northern Ireland addresses when travelling. Women on Web figures show that the number of women from both Northern Ireland and Ireland using its web-based service almost trebled between 2010 and 2015.8Women in North turn to abortion pills as number going to England drops’, Irish Times, 8 December 2017.
The Women and Equalities Committee, chaired by Maria Miller MP, is holding an inquiry into abortion law in Northern Ireland and the NIHRC gave evidence at the end of February. The NIHRC has also given evidence to the British/Irish Parliamentary Assembly Committee D, chaired by Lord Dubs, which has launched its own inquiry. The prospect of a cross-bench-supported amendment to a bill going through parliament to reform the law in Northern Ireland remains a real one.
Later this year, the CEDAW committee will issue its concluding observations on the UK government’s adherence to the convention, and the law on abortion and its impact will again loom large in its report. The NIHRC’s position remains that the law in Northern Ireland is incompatible with human rights and needs reforming alongside the decriminalisation of abortion.
The absence of a Northern Ireland Executive and Assembly (now into its third year) means the ball is firmly in the court of the Westminster parliament. The momentum for change is inexorable; the timing, vehicle and nature of the legal reform remains to be seen. In the meantime, the issue of abortion will continue to be exported to Britain and now Ireland, and the situation in Northern Ireland will remain incompatible with international and domestic human rights standards.
 
1     See Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 39 at paras 47–96 and R v Bourne [1939] 1 KB 687. »
6     Abortion statistics, England and Wales: 2017, Department of Health and Social Care, June 2018; revised December 2018. »
7     Northern Ireland termination of pregnancy statistics 2017/18, Department of Health, 23 January 2019. »
8     Women in North turn to abortion pills as number going to England drops’, Irish Times, 8 December 2017. »

About the author(s)

Les Allamby - author
Les Allamby is the chief commissioner of the Northern Ireland Human Rights Commission.