By Dr Jane Rooney, Lecturer in Law (University of Bristol Law School).
In its much-awaited decision on Northern Irish abortion laws, a majority in the UK Supreme Court dismissed the appeal brought by the Northern Ireland Human Rights Commission (the Commission) on the basis that it lacked standing to bring legal proceedings [In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27]. Kathryn McNeilly, Fiona Bloomer, and Claire Pierson explain the context and implications of the ruling here. Despite agreement ‘that the current law in Northern Ireland on abortion is disproportionate and incompatible with Article 8 of the [European] Convention’ on Human Rights (see UK Supreme Court press release), the Commission had no standing and therefore the Supreme Court could not make a declaration of incompatibility under section 4 of the Human Rights Act and their statements on rights violations were obiter dicta.
This blog considers the Supreme Court’s adjudication on standing. It argues for a literal interpretation of the Northern Ireland Act 1998 and Human Rights Act 1998 (HRA) to argue that, contrary to the UK Supreme Court’s majority judgment, the Commission is empowered under the Northern Ireland Act to bring proceedings in cases of an unlawful act of a public authority and for review of the compatibility of Northern Irish primary legislation with the European Convention on Human Rights (the Convention).
The Northern Ireland Human Rights Commission and its standing
The Commission was established by section 68 of the Northern Ireland Act 1998 having been identified in Strand Three of the Multi-Party Agreement in the Belfast or Good Friday Agreement which provided for a new power-sharing government between Nationalist and Unionist parties. Section 69(1) of the Northern Ireland Act sets out the role of the Commission as including review of the adequacy and effectiveness of Northern Irish laws and practice relating to the protection of human rights. Section 69(5) enables the Commission to ‘bring judicial proceedings involving law or practice relating to the protection of human rights’ (s69(5)(b)), and thus strengthens its role as guardian of human rights in Northern Ireland.
The Northern Ireland Act does not require the Commission to be a victim to bring human rights proceedings
In its original formulation, section 71(1) of the Northern Ireland Act used to state that ‘[n]othing in section 6(2)(c), 24(1)(a) or 65(5)(b) shall enable a person’ to bring court proceedings alleging incompatibility of legislation with the Convention, or rely on the Convention (e.g. if a public authority commits an unlawful act contrary to the Convention), unless they are a ‘victim for the purposes of Article 34’ of the Convention. Sections 6 and 24 of the Northern Ireland Act concern the primary and secondary legislative powers of the Northern Irish Assembly and ministerial departments respectively. Sections 6(2)(c) and 24(1)(a) establish that the Assembly and Northern Ireland executive cannot legislate incompatibly with the Convention.
Section 71 therefore confirms that private persons have to be a victim, in accordance with article 34 of the Convention, to challenge the compatibility of primary and secondary legislation with ‘human rights’ or an unlawful act of a public authority, as well as to facilitate the Commission in bringing a case on their behalf. Section 71(1) in this formulation never meant, therefore, that the Commission had to be a victim in order to bring human rights proceedings to a court. The Commission is a public authority and public authorities are not victims under the Human Rights Act. The Commission is not empowered under the Northern Ireland Act to bring proceedings as a victim. It may only bring court proceedings on behalf of those who need assistance under section 69(5).
However, section 71 has, in the past, been interpreted as meaning that the Commission needs to be a victim in order to bring human rights proceedings under section 69(5)(b). It then had to be amended in order to avoid ambiguity and clarify that the Commission did not need to be a victim to bring human rights proceedings to challenge a public authority act or to challenge compatibility of legislation with the Convention. The change was instigated by Lord Slynn’s misunderstanding of the provision in In Re Northern Ireland Human Rights Commission [2002] NI 236 HL, where Lord Slynn misread section 69(5)(b), stating that the Commission must show that the Commission is a victim under article 34 of the Convention in order to have standing to challenge compatibility of legislation with the Convention. Lord Hobhouse dissented acknowledging that ‘the provision of assistance to unrepresented or inadequately represented parties or acting for victims of human rights infringements is already expressly dealt with in s 69(5), s 70, and s 71’ (para 72). Lord Chief Justice Morgan, in the Court of Appeal judgment on the legality of abortion laws in Northern Ireland brought by the Commission [ In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review [2017] NICA 42] agreed that Lord Hobhouse was ‘plainly right’ (para 8). The Commission had to demonstrate it was acting on behalf of a person who could maintain victim status in accordance with the provisions and rules of the Convention and European Court of Human Rights (Lord Chief Justice Morgan [2017] NICA 42 para 9) but it did not need to be a victim itself.
Regardless of the fact that the original formulation clearly meant that the Commission had to represent a victim rather than be a victim, the Justice and Security (Northern Ireland) Act 2007 was introduced, as devolved primary legislation, to amend section 71 of the Northern Ireland Act to avoid confusion. Reference to Section 69(5)(b) was deleted in section 71 so that it read: ‘[n]othing in section 6(2)(c) or section 24(1)(a) shall enable a person’ to bring court proceedings. Further the 2007 Act inserted section 71(2A) which provided that in ‘instituting’ or ‘intervening’ in ‘human rights proceedings’ the ‘Commission need not be a victim or potential victim of the unlawful act’ (s72(2B)(a)). Further, sections 7(3) and (4) of the Human Rights Act 1998, which require that the applicant needs to be a victim in order to launch judicial review of legislation ‘shall not apply’ in cases brought by the Commission (s71(2B)(b)). The ‘Commission may act only if there is or would be one or more victims of the unlawful act’ (s71(2B)(c)). ‘Human rights proceedings’ means proceedings which rely ‘wholly or partly’ on first, section 7(1)(b) of the HRA: complaining about a public authority’s unlawful acts under section 6 of the Human Rights Act (s71(2C)(a)(i)). Second ‘human rights proceedings’ can mean proceedings brought under section 69(5)(b) of the Northern Ireland Act: the Commission can bring proceedings involving law (incompatibility of legislation) or practice (an unlawful act of a public authority) relating to the protection of human rights.
The UK Supreme Court Decision
Lord Mance delivered the lead majority judgment and stated that section 71(2B) indicated that the Commission only had standing to challenge an unlawful act of a public authority and could not challenge compatibility of legislation under this provision (Lord Mance, para 54). Lord Mance picked out the phrases in section 71(2B) that stated ‘unlawful act’ to support this assertion. In doing so he ignored section 71(2B)(c) which refers to requirements for bringing proceedings relating to judicial review of legislation and more crucially the provision which section 71 was seeking to clarify: section 69(5)(a) which enables the Commission to bring human rights proceedings in relation to law and practice. By denying the Commission a role in bringing human rights proceedings for judicial review of primary legislation he limited section 71 powers to bringing proceedings for unlawful acts of public authorities.
Section 71(2C)(b) Northern Ireland Act requires Section 71(2B) Northern Ireland Act to be interpreted compatibly with section 7 of the Human Rights Act. Section 7 sets out the procedure when an individual brings an application against a public authority for an ‘unlawful act’. The definition of ‘unlawful act’ is set out in section 6(2) Human Rights Act. Under section 6(2) of the Human Rights Act, a public authority action cannot be challenged if the action was done in compliance with primary legislation that is allegedly Convention incompatible. In its application to the UK Supreme Court, the Commission identified the unlawful act as the Department of Justice, its minister and the health service failing to provide health care to pregnant women including access to abortion services to terminate pregnancy in cases of fatal foetal abnormality and incest.
Lord Mance found that the lack of provision of reproductive care was as a result of the public authorities following primary legislation. This did not constitute an ‘unlawful act’ under section 6(2) Human Rights Act, and therefore section 7 Human Rights Act, and therefore section 71(2B) Northern Ireland Act. He ignored references to review of legislation in section 69(5)(b) and section 71(2C), denying the Commission standing to fulfil one of its most important roles in challenging compatibility of legislation with the Convention. Lord Mance denied the literal interpretation of the Northern Ireland Act by adopting an à la carte approach to its provisions. Lord Kerr argues that section 71(2B) empowers the Commission to challenge the compliance of legislation with human rights (para 179) and that Lord Mance’s reading is incorrect.
Lord Mance was concerned that enabling the Commission to bring proceedings challenging legislation’s compatibility with the Convention would be in effect an actio popularis, enabling any individual to challenge a law without the requirement of having been directly affected by it and thus open the floodgates to applications under the Human Rights Act (para 62). This is incorrect for two reasons. First, the Commission is required to identify individuals who were directly affected by an unlawful act allegedly in violation of Convention rights under section 6 of the Human Rights Act or legislation incompatible with the Convention. The victims were identified and their circumstances described in great detail by Lord Kerr in that decision ([2018] UKSC 27, paras 136-147). Further the exceptional nature of the Commission is set out in the Northern Ireland Act. Second, this concern fails to recognise the exceptional role of the Northern Irish Commission and the authority of the Northern Ireland Act in consolidating the devolved constitutional settlement.
The Commission serves an exceptional democratic function in Northern Ireland. The Northern Ireland Assembly is often suspended (it has been suspended since January 2017) and a petition of concern can be triggered to block legislative reform. The petition of concern was used 115 times in the 2011-2016 session to block 31 bills including on marriage equality, welfare reform legislation, and abortion laws. The DUP has signed 86 petitions of concern. The power sharing arrangement has meant disenfranchisement of groups not represented along ethno-national lines. For example, the Northern Ireland Life and Times Survey has indicated that the opinion in Northern Ireland is in favour of reform of abortion laws.[1] In this survey, the majority of participants agreed that a woman should be able to access abortion in cases of rape or incest (78%), a child aged 15 years or younger should be able to access abortion (53%), a woman should never face criminal charges because of rape or incest (76%), and a woman should never go to prison for having an abortion (71%). Despite this opinion, the Abortion (Fatal Foetal Abnormality) Act (Northern Ireland) 2017 was rejected in the Northern Irish Assembly largely (but not entirely) along ethno-national lines.
The Northern Ireland Act recognises the challenges posed by the power sharing arrangement and accords the Commission powers to bring human rights proceedings in courts to overcome stalemate within the Assembly and executive that has deleterious effects on individual rights protection. Its facilitative role does not undermine the Human Rights Act. The Northern Ireland Act’s exceptional, devolved constitutional status needs to be recognised. Lord Kerr cites Lord Bingham in Robinson v Secretary of State for Northern Ireland [2002] NI 390 in this regard:
The 1998 [Human Rights] Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution… the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.
The Human Rights Act can be interpreted as consistent with the Northern Ireland Act. The Commission can still identify victims that are directly affected by the law to bring a claim challenging compatibility of legislation with the Convention as is arguably required by the Human Rights Act (for the argument that a free-standing action can be undertaken under sections 3 and 4 of the Human Rights Act without the identification of a victim see in the UK Supreme Court judgment Lady Hale, paras 17-18; and Lord Kerr, paras 183-190). Otherwise, a purposive interpretation of the Human Rights Act can help recognise the exceptional role of the Commission in Northern Ireland, and its importance in protecting against wide reaching human rights violations by enabling it to bring a free standing section 3 and 4 claim ([2018] UKSC 27, Lord Kerr para 203; [2017] NICA 42 Lord Justice Morgan, para 37-39. Both citing R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687).
Lord Mance’s obfuscation of a literal reading of the Northern Ireland Act 1998 successfully facilitates a procedural escape route to avoid having to make a declaration of incompatibility under section 4 of the Human Rights Act on the facts of the case and avoid judicial pressure for legislative reform.
Repeal of the 8th amendment placing the right to life of the foetus on a constitutional footing in the Republic of Ireland, the emergency debate called by Stella Creasy, Labour MP, on 5th June 2018 on legality of Northern Irish abortion laws in the UK Parliament, as well as Sinn Fein’s agreement to establish a British Irish Intergovernmental Conference to consolidate legislative change on abortion this week all signal that such a procedural escape route is unnecessary in the current political climate. This is notwithstanding the DUP’s reticence for legislative change.
The judgment represents a misunderstanding, and lack of regard, for the constitutional arrangement established by the Good Friday Agreement wherein the Commission was empowered with the right to bring judicial proceedings when human rights are stake, both in relation to the commission of an unlawful act by a public authority and judicial review of legislation. Lord Kerr is the only judge in the Supreme Court to consider the constitutional significance of a ruling finding against standing for the Commission, and reads both the Northern Ireland Act and Human Rights Act purposively to ensure that the mistake of denying standing to the Commission is not made. A literal interpretation of the Northern Ireland Act supports the proposition that the Commission should have standing and a purposive interpretation of the Human Rights Act ensures that its provisions are not used as an excuse to abdicate judicial responsibility in politically contentious cases.
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[1] Survey undertaken in 2016. 1,208 adults aged 18 years or over were interviewed. See also Fiona Bloomer et al, ‘Abortion as a Workplace Issue: A Trade Union Survey North and South of Ireland’ available here https://www.unison-ni.org.uk/sites/default/files/TU%20Abortion%20Report%20Oct9_Final_Final_Edit.pdf.