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Quashing the declaration, and concluding that the Court should not intervene, the Court held that the issues were matters for the Northern Ireland Assembly to decide upon.

Background

The initial application before Mr Justice Horner was brought by the Northern Ireland Human Rights Commission (NIHRC) seeking a declaration that the abortion legislation in NI – Sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 – are incompatible with article 8 of the European Convention on Human Rights (ECHR) insofar that it is an offence:

In November 2015, Justice Horner held that the abortion legislation in NI breached Article 8 of the ECHR by failing to provide an exception to the prohibition on abortion in these cases and made an Order declaring the legislation to be incompatible with the UK’s obligations under the Human Rights Act 1998.

Court of Appeal

The AG and the DOJ against the Order.

NIHRC cross appealed and contended that the abortion legislation is also incompatible with Articles 3 and 14 read with Article 8 of the ECHR and that appropriate declarations should be made in cases of serious foetal abnormality.

In relation to the issue of Standing which was contested by the AG, the Court of Appeal concluded that NIHRC had standing to pursue the proceedings both based on an alleged unlawful act and by way of an incompatibility challenge to the legislation.

The Court considered the leading authority in domestic case law on the meaning of the word “unlawful” in sections 58 and 59 of the Offences Against the Person Act 1861 to be R v Bourne 1KB 687,

This case established that the Offences Against the Person Act 1861 gave a significant degree of protection to the foetus but that protection was qualified when in competition with the rights of the mother.

Article 8 ECHR

Article 8 provides for the right to respect for private and family life; it is a qualified right and is subject to exceptions that are in accordance with law and necessary in a democratic society, for the protection of morals, or for the protection of the rights and freedoms of others.

The AG and DOJ placed considerable reliance on the decision of the ECtHR in A, B and C v Ireland in which the court held that the Article 8 rights of the women were engaged but the interference by the State was justified as being “in accordance with the law and necessary in a democratic society for one of the legitimate aims”.

The ECtHR had afforded the Republic of Ireland a wide margin of appreciation on the protection of the rights of the unborn due to the “profound moral views of the Irish people as to the nature of life” and the right to life being guaranteed under the Irish Constitution from the date of conception.

The Lord Chief Justice

The Lord Chief Justice, Sir Declan Morgan did not consider that A, B and C v Ireland was of decisive advantage to the appellants as the overriding principle was that each jurisdiction has a wide margin of appreciation in determining such sensitive legal and moral issues and the judgment cannot be interpreted as requiring such protection for women. Further, there was a need for judicial restraint in dealing with issues of moral and political judgment.

The Lord Chief Justice considered that it was within the remit of the court to look at the Bourne judgment to determine whether the phrase “for the purpose of preserving the life of the mother” could be interpreted in a reasonable sense in today’s circumstances.

Lord Justice Gillen

Lord Justice Gillen did not agree with the Lord Chief Justice’s approach to interpreting the legislation and Bourne to permit abortions to be lawful in specific circumstances; stating that it was “institutionally inappropriate and a reach too far for this Court to change the effect of the relevant legislation and its interpretation in Bourne”.

The real issue in this case, for Justice Gillen, arose out of Article 8(2) of the ECHR which set out the circumstances in which the State can interfere with the exercise with a person’s Article 8 rights.

Lord Justice Gillen said the difficulties of a court making such a conclusion without the benefit of the widespread input and consultation which the legislative and executive branches of government had already taken; and would be bound to continue to undertake, were enormous.

He concluded that this was a matter of extraordinary complexity and moral entanglement on which views have shifted over the decades, and was not for the Court to decide.

Lord Justice Weatherup

Lord Justice Weatherup also disagreed with the Lord Chief Justice’s view that the legislation may be interpreted in a manner that would permit the additional grounds for termination of pregnancy by redefining the meaning of “unlawful” in the Offences Against the Person Act 1861 and held that it was for the Assembly to determine whether to amend the legislation.

The essential question was whether the interference is an unjustified interference under Article 8.2; and the burden was on the State to provide justification for the restrictions imposed.

Lord Justice Weatherup went on to consider how this affected the proposed grounds for termination as expressed by NIHRC (fatal foetal abnormality, pregnancy resulting from rape or incest, and serious malformation of the foetus). In respect of the termination of pregnancy in the case of serious malformation of the foetus, Lord Justice Weatherup said he would be inclined to the provisional view that this may not amount to a breach of the right to respect for private life as the restriction may be capable of justification where it advances the public interest in preventing discrimination against disability.

Conclusion

The Court of Appeal allowed the appeal by the AG and concluded that the Court should not intervene and that it was a matter for the Assembly to decide.