NI High Court: Judge finds Secretary of State’s ‘negligible’ delay in securing access to abortion rights ‘dispiriting’

In these proceedings, brought partly on behalf of Amnesty International and Informing Choices NI, the applicant challenged the failure of:

• The Secretary of State for Northern Ireland, to ensure, pursuant to powers under the UK Parliament of the Northern Ireland (Executive Formation etc) Act 2019, that women are provided with abortion and post-abortion care in all public health facilities expeditiously and that relevant guidance is provided; and

• The Executive Committee and Minister of Health to agree, commission and fund abortion and post-abortion care in all public health facilities expeditiously and to provide relevant guidance.

The deponent, “NAH”, a woman in her mid-40s married with four children, was affected by the lack of abortion services available to her in Northern Ireland. As a result of the Covid travel restrictions, she was forced to resort to an unregulated abortion pill from the internet. In her own words, she was “lucky” to have the means to afford such a pill, although she still had to, “go through this without local clinical support and ready access to after‑care services if needed.”

The applicant was the Northern Ireland Human Rights Commission, a body corporate established pursuant to section 68 of the Northern Ireland Act 1998 with the functions of promoting, educating, litigating, reviewing and advising on human rights issues. 

The Applicant’s Case

The central submission on behalf of the applicant is that despite the clear obligation imposed by Parliament on the Secretary of State under the 2019 Act, and Article 8 ECHR, there is still no State organised abortion services available to pregnant women and girls in Northern Ireland in May 2021.

Any provision that has been provided is piecemeal, dependant on where a woman or girl may live, and whether they are less than 10 weeks pregnant.

The cause of this was attributed to:

(a)       The Secretary of State for failing to comply with his duty to ensure expeditiously that abortion services were available in Northern Ireland;

(b)       The Department’s refusal to take any real steps to prepare for the commissioning of, or take any other steps to secure the sustainability of, abortion services; and

(c)        The point-blank refusal of the Executive Committee to agree on, or even consider seeking agreement on, commissioning abortion services.

The Secretary of State

Under the 2019 act, the Secretary of State has an obligation, in that he “must ensure” certain abortion service recommendations are implemented in respect of Northern Ireland.

This duty, under section 9(7), must be carried out “expeditiously…recognising the importance of doing so for protecting the human rights of women in Northern Ireland.”

In considering whether the Secretary of State carried out this duty, the court considered the timeline of events. They noted that a significant amount of time had elapsed since the 2019 Act came into force – 19 months.

The court found that there appeared to be, “no effective engagement between the [Secretary of State] and the Department [of Health] on the implementation of abortion services between 1 April 2020 and 7 September 2020, a period of over 5 months.”

Further, it was argued that the Covid-19 pandemic, if anything, should have hastened the drive to implement these changes, because of the pandemic’s effect on freedom of travel. This issue was highlighted by the Minister of State’s call with the Minister of Health on 22 February 2021 when he stated: “Recognise the Covid situation, but that only highlights the need for services…”.

The court noted that ‘expeditiously’ is not a common legal or legislative term, and thus must be interpreted according to its ordinary meaning.

However, the court noted that there was “no evidence of any engagement” between 1 April 2020 and 7 September 2020 except for a single email on 17 June 2020 seeking to arrange a call, and that this level of engagement on the subject was “negligible”.

The court determined that the Secretary of State had failed in his duty to act.

Further determinations

A declaration that the Executive Committee and Minister of Health’s failure to make provision for abortion was a breach of Article 8 ECHR was dismissed. The court found that although the Executive Committee may “potentially” be subject to a judicial review for its exercise of certain functions, the proceeding here had not been formulated so as to bring such a discussion to the fore.

In relation to the Department of Health, the court was satisfied that the Department acted in accordance with its obligations to commission services in accordance with the Abortion (Northern Ireland) (No.2) Regulations 2020. Their delay was justified in the very exceptional and particular circumstances surrounding the Covid-19 pandemic.

The court also declined to make any Order of Mandamus against the Secretary of State.

Conclusion

The judge noted that throughout this period, the Secretary of State was aware of problems encountered by those seeking abortion services in Northern Ireland. It seemed to the court that the attitude of the Secretary of State changed significantly on receipt of the pre-action protocol letter from the applicant in this case.

Subject to political agreement with the Executive, the Department estimated that it may take a total of 8-12 months before a fully commissioned abortion service is available in Northern Ireland.

As a final point, judge noted that it was “dispiriting” to learn that those with the power to effect change would “not make a decision unless forced to do so by way of direction or judicial review”, simply where “they disagree with the relevant law”.