NI: Court unable to read abortion law as European Convention compliant



Following his full judgment on 30 November, Horner J of the Northern Ireland High Court of Justice has found that it is not possible to read Northern Ireland’s abortion law in a way that is compatible with the European Convention on Human Rights.

The Judge had invited further submissions on the issue of whether it would be an abuse to prosecute in respect of the two exceptional categories identified in the judgment, namely abortion as a result of fatal foetal abnormality, or abortion as a result of rape or incest.

He also invited further submissions on whether it would be possible to read the abortion law in a way that is Convention compliant, pursuant to section 3 of the Human Rights Act.

In his follow-up judgment, the Judge noted with irritation that some counsel had used the opportunity to adduce further evidence and arguments on issues that had already been determined.

In light of apparent confusion, it was clarified that fatal foetal abnormality was not a medical term, but a shorthand used to cover conditions which made survival outside the womb impossible.

Further, it was clarified that sexual crime as defined in the judgment included only rape or incest.

Having made these observations, the Judge found that the issue of prosecution would have to be considered again in another court, having heard detailed arguments.

He then moved to consider section 3(1) of the Human Rights Act, which requires courts to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights so far as it is possible to do so.

He noted the White Paper, “Rights Brought Home” and its observation that “courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself was so clearly incompatible with the Convention that it is impossible to do so”.

The Judge cited the case of Ghaidan v Godin-Mendoza 2 AC 557, in which the House of Lords analysed section 3 in detail.

Citing Attorney General’s Reference (No 4 of 2002) 1 AC 264 as providing a useful summary of the Ghaidan judgment, it was found that “the interpretative obligation under section 3 is a very strong and far reaching one… a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course.”

However, declarations could be made when “an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation”.

The Judge found that there was near unanimity amongst the parties that the Court would not be able to read the relevant provisions of Northern Ireland’s abortion legislation in a way that was compatible with the European Convention.

He therefore made a declaration of incompatibility, inviting the parties to agree the terms of the declaration. The final order will be issued today.

  • by Rachel Killean for Irish Legal News