Abortion in Northern Ireland: The Ewart Judicial Review Judgment

By Dr. Jane Rooney, Lecturer in Law (University of Bristol Law School)

NB: Abortion law in Northern Ireland is set to change on 22nd October 2019 if the suspended Northern Irish Assembly continues to not function on or after 21st October. This blog post contextualises and recognises the continued relevance of judicial review proceedings challenging the prohibition on abortion in Northern Ireland in cases of fatal foetal abnormality within a dynamic, multi-layered legal, political and social context.

On 3rd October 2019, the High Court of Justice in Northern Ireland decided that Northern Irish abortion law was incompatible with the Human Rights Act 1998 (HRA) insofar as it prohibited abortion in cases of fatal foetal abnormality (FFA). Justice Keegan decided to refrain from pronouncing on the remedy before hearing further submissions by the parties involved: she delayed the decision over whether to make a declaration of incompatibility (DOI) pending further submissions.[1]  This judicial review case follows a momentous year in activism, litigation, and legislative reform on abortion in Northern Ireland. The following provides context to the judgment, and a summary of the key reasoning employed. It then focuses on the DOI point which is yet to be concluded. A DOI should be made for two primary reasons. First, this remedy is warranted in the circumstances of the prohibition on abortion in cases of FFA. It can be distinguished from Nicklinson which introduced the idea that a DOI need not be made despite finding an incompatibility. Second, to proceed with refusing a DOI despite finding an incompatibility, and normalising Nicklinson, would have broader consequences for the human rights protection system in the UK.

Context

At the time of writing, abortion is a criminal offence in Northern Ireland under sections 58 and 59 of the Offences Against the Person Act 1861 (OAPA) and section 25 Criminal Justice Act (Northern Ireland) 1945 except when there is a ‘probability’ or ‘possibility’ of ‘real and serious [injury]…permanent or long term’.[2] Northern Irish women can access abortion services at a cost in the Republic of Ireland[3] and for free in England,[4] Scotland,[5] and Wales.[6] Those who do not have the financial means to travel or pay for services in the Republic of Ireland may carry out an abortion illegally within Northern Ireland but face a real risk of prosecution.[7]  Someone who aids, abets, counsels or procures an offence is liable on conviction to the same penalty as the principal.[8] Where a person has committed a relevant offence, it is the duty of anyone who knows or believes that a relevant offence has been committed and who has information which is likely to be of material assistance to report it within a reasonable time.[9]

On 24th October 2018, Sarah Ewart, a woman who had to travel to England for an abortion as a result of an FFA, was granted leave by the High Court of Justice in Northern Ireland to challenge the legality of Northern Irish abortion law insofar as it had negatively impacted upon her.[10]  This was in the wake of a UK Supreme Court (UKSC) decision on 7th June 2018, which found, obiter dicta, that abortion law in Northern Ireland was in violation of article 8 of the European Convention on Human Rights (ECHR), the right to private life, and therefore incompatible with the HRA, but only in cases of FFA and rape.[11] However, only an obiter dicta DOI was made under section 4 HRA, as it was found by the majority that the applicant, the Northern Ireland Human Rights Commission (NIHRC), did not have standing to bring the case on behalf of women affected by the legislative framework in Northern Ireland.[12] A DOI places no legal obligation on parliament to change legislation that is incompatible with human rights but practice demonstrates that parliament recognises its cogent political value. In response to a non-legally binding DOI, parliament usually legislates to change the incompatibility.[13] Lady Hale has stated that the obiter dicta DOI places the exact same political onus on Westminster parliament to legislate as a ratio decidendi DOI.[14] However, the lack of an affirmative DOI contributed[15] to reasons for central government failing to take affirmative action to implement the UKSC decision despite recognition by parliament that at least some change should take place. This is in recognition of the fact that abortion is not a devolved issue to the extent to which it is incompatible with human rights.[16] The Secretary of State for Northern Ireland refused to direct civil servants to clarify the existing provision of abortion in Northern Ireland and to rectify the UKSC findings of incompatibility despite the fact that the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 directed them to do so in the absence of a Northern Irish Assembly which has been suspended since 16th January 2017. Section 4 of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 states:

(1) In the absence of Northern Ireland Ministers to address the matters identified by recent, current and future court proceedings in relation to the human rights of the people of Northern Ireland, the Secretary of State must issue guidance to senior officers of all Northern Ireland departments which will specify how to exercise their functions in relation to—

(a) the incompatibility of the human rights of the people of Northern Ireland with the continued enforcement of sections 58 and 59 of the Offences against the Person Act 1861 with the Human Rights Act 1998…[17]

Since the UKSC litigation, attempts have been made for more far reaching reform: to repeal sections 58 and 59 OAPA via an Act of Parliament in the absence of the Northern Irish Assembly. First, an unsuccessful attempt through the Draft Domestic Violence Bill[18] and second, through the successfully passed Northern Ireland (Executive Formation etc) Act 2019 (NIEF), which garnered cross-party support, 327 votes to 64 in Westminster.

Sarah Ewart’s litigation is a response to the UKSC decision. The NIHRC failed on standing and therefore no remedy was granted. The UKSC ruled the NIHRC could not bring a case on behalf of victims but could only aid and assist their applications. Nevertheless, it unanimously decided that the prohibition on abortion in cases of FFA was incompatible with article 8.[19] Ms Ewart decided to bring her case in search of the remedy of a DOI, arguing she had standing because she was a victim of the prohibitive laws.

The Judgment: Incompatibility and Standing

In confirming the UKSC decision that prohibition of abortion in cases of FFA was incompatible with article 8 ECHR, Justice Keegan relied on the most conservative justification put forward in the UKSC by Lady Black stating that ‘where the unborn child cannot survive…there is no life outside the womb to protect’…in these circumstances ‘the life of the foetus…cannot…be sufficient to outweigh the intrusion upon the autonomy of the pregnant woman’.[20] The main issues addressed in the judgment were standing and whether to grant declaratory relief.

Justice Keegan notes that Lord Mance, delivering the majority judgment in the UKSC decision, found that an applicant could only challenge legislation under sections 3 and 4 HRA, in tandem with a claim of being subject to an unlawful act in breach of human rights under sections 6 and 7 HRA.[21] She notes that Ms Ewart did not claim she had been subject to an unlawful act. Ms Ewart claimed to be a victim on two grounds: she had to travel to England to get an abortion for an FFA, and there was an increased risk that she would be put in an identical position in the future because she had received medical advice that she would be more susceptible to an FFA following her experience. Justice Keegan delicately distinguishes Lord Mance’s reasoning by stating that it was in the context of deciding whether the NIHRC, a National Human Rights Institution, should have standing, that it was decided that a claim could not be brought by a victim to merely challenge legislation that impacted or potentially impacted the applicant. She emphasises his statement that: ‘parliament [has] left it to claimants with a direct interest in establishing the interpretation or incompatibility of primary legislation’… ‘an actual or potential victim of an unlawful act’.[22] She correctly[23] uses European Court of Human Rights (ECtHR) jurisprudence to determine whether Ms Ewart is a victim for the purposes of establishing standing, which clearly provides[24] that a potential victim of an lawful act due to the existence of a legislative scheme has standing. She cites in particular the following: ‘it is open to the applicants to contend that a law violates their rights, in the absence of an individual measure of implementation, if they belong to a class of people who risk being directly affected by the legislation or if they are required either to modify their conduct or risk being prosecuted.[25] She concluded that Ms Ewart ran the risk of being directly affected by the legislation and had to modify her behaviour in that she could not have medical treatment in Northern Ireland without a risk of criminal prosecution. Importantly, Justice Keegan commented that taking the position that an unlawful act was required for an applicant to have standing in the current circumstances:

throws up the prospect that some other young woman faced with this type of situation would be required to come forward and pursue litigation at a time when she would undoubtedly be faced with the trauma and pain associated with her circumstances. I cannot see that this would serve any benefit or that it would be right to ask another woman to relive the trauma these events undoubtedly cause.[26]

The ruling is a welcome correction of Lord Mance’s assessment of standing and represents the position taken by Lady Hale and Lord Kerr in Re NIHRC.

Declaration of Incompatibility

The High Court refrained from making a DOI despite finding that the prohibition of abortion in cases of FFA was incompatible with human rights. The judge noted that the HRA provides merely that a judge ‘may’ make a DOI if legislation is incompatible with the ECHR[27] but is under no obligation or duty to do so citing the Nicklinson case as authority.[28] It is argued here that a DOI should be made for two primary reasons. First, the present case can and should be distinguished from the unique circumstances of Nicklinson which introduced the idea that a DOI need not be made despite finding an incompatibility. Second, to proceed with refusing a DOI despite finding an incompatibility would have wider deleterious effects on human rights protection in the UK and undermine the balance struck in the HRA between human rights protection and democratic legitimacy.

Distinguishing Nicklinson

Nicklinson concerns the law on end-of-life decision-making. It examines the compatibility of the offence of assisted suicide (section 2 of the Suicide Act 1961), with article 8 right to respect for private life, to facilitate someone to make decisions about when and how to end their own life. The majority, 7-2, decided that a DOI should not be made. Of that majority, three justices, Lord Neuberger, Wilson, and Mance, ruled that there was an incompatibility – section 2 of the Suicide Act 1961 was a disproportionate interference with the article 8 right – but they would not make a DOI.[29] Two judges, Lady Hale and Lord Kerr, dissented, issuing a DOI. The other four members of the majority deferred to parliament in deciding whether there existed an incompatibility. There were four justifications put forward by Neubeger/Wilson/Mance in Nicklinson for not making a DOI despite finding an incompatibility. They were:

  1. The difficult, controversial, and sensitive nature of the issue;[30]
  2. The need for the legislature to decide whether, and how, to amend s 2;[31]
  3. The fact that Parliament was actively considering the issue;[32]
  4. Issuing a DOI would be ‘an unheralded volte-face’ from the previous Pretty[33]

Ewart JR decision can be distinguished from Nicklinson taking each of the criteria (not necessarily in order):

An ‘unheralded volte-face’ from the 2001 Pretty judgment: In Pretty the House of Lords unequivocally ruled out a ‘right to die’ and a majority found article 8 ECHR was not engaged at all in issues relating to end-of-life decision-making. In its appeal to Strasbourg, article 8 ECHR was found to be engaged but that there was no violation.[34] The House of Lords’ position, up until Nicklinson, continued to be that prohibiting assisted suicide was not a violation of article 8.[35] Nicklinson represented a major shift in the substantive reasoning of the House of Lords on end-of-life decisions, with five judges finding there was a violation of article 8. In contrast, the UKSC had never before pronounced on the legality of prohibition on abortion in cases of FFA before the Re NIHRC decision. When it did, it unequivocally stated it was incompatible with human rights. The Northern Irish High Court Justice needs to follow the decision of the UKSC. Finding a violation of article 8 in cases of FFA does not represent an ‘unheralded volte-face’ from precedent.

The need for the legislature to decide whether, and how, to amend [the incompatible provision]/Parliament actively considering the issue/difficult, controversial and sensitive nature of the issue

In the case of Nicklinson, Parliament was still debating the Assisted Dying Bill at the time of judgment. The legislation was considered extremely contentious and was subsequently rejected by MPs 118-330 votes. In contrast, Parliament overwhelmingly voted in favour (327 to 64) of liberalising abortion in Northern Ireland through the NIEF. Section 9 NIEF imposes an obligation to implement the full range CEDAW[36] recommendations. While the complete decriminalisation of abortion is contentious, legalising abortion in cases of FFA has amassed unambiguous support amongst people in Northern Ireland, as evidenced in multiple recent polling,[37] and amongst its MLAs. Stormont voted against legalising abortion in cases of FFA on 10 February 2016, despite support from Sinn Fein, the Ulster Unionist Party, and Alliance. This was in favour of setting up a working group that could consider more carefully how this would be implemented, rather than disagreeing in principle with legalising abortion in these cases. The working group on Fatal Fetal Abnormality released its report in April 2018 and set out clear guidance on reform.[38]

In terms of how the law should be reformed, this should not feature in a decision as to whether an existing legal framework is compatible with human rights. It places a disproportionate burden on the applicant.[39] However, if one accepts that a lack of information on what reform would look like is a Nicklinson criteria for denying a DOI, Ewart JR case does not meet it.  The UK Government Guidance for Healthcare Professionals in Northern Ireland on Abortion Law and Terminations of Pregnancy in the Period 22 October 2019 to 31 March 2020 in relation to the Northern Ireland (Executive Formation etc) Act 2019 provides the new legal position from 22 October to 31 March 2020 (‘the interim period’): termination of pregnancy in cases of FFA is legal. It provides information regarding duties on conscientious objectors. There is not ambiguity as to what the alternative scheme would look like. This guidance was published after the 3rd October judicial review decision, on 7th October. The circumstances of the Ewart JR decision are incomparable to Nicklinson if one looks at the criteria which justified no DOI in the latter.

Nicklinson: Corruption of balance between Human Rights protection and democratic accountability in HRA

On the question of whether declaratory relief should be granted Justice Keegan stated, ‘[t]he political consideration of FFA is also relevant to the legal issue in this case’.[40] Nicklinson is relied upon as the sole authority for the presumption that political considerations re-enter judicial reasoning again after confirmation that law is incompatible with the substantive right. It is worth noting that in its approach to finding an incompatibility while denying a DOI, Nicklinson is of weak precedential authority. Four justices considered it was outside their institutional capacity to rule on compatibility, deferring to parliament. Two justices found an incompatibility and made a DOI (Lady Hale and Lord Kerr). Only three of the justices took the exceptional route of ruling that the law was incompatible with human rights and then refused to make a DOI. The decision is often read as merely finding no incompatibility in the circumstances.[41]

The HRA aims to strike an appropriate balance between democratic legitimacy and the rule of law. Section 3 HRA imposes an obligation on the courts to read ‘so far as it is possible to do so’ primary and secondary legislation in conformity with rights: the courts ‘must’ do this. Section 4 HRA states that a court ‘may’ make a DOI when legislation is incompatible with HRA and cannot fulfil their section 3 obligation. Section 4’s ‘may’ could be construed, on a literal reading, as permissive rather than granting the court a discretionary power to grant or withhold a DOI when an incompatibility is found. This is so in two respects. First, the section 4 power is unique. Not even the European Communities Act 1972 was as forthcoming as the HRA in enabling a court to pronounce on the compatibility of Acts of Parliament with the UK’s international obligations. It was not until Factortame (No 2) that it was confirmed that the court could disapply legislation that was incompatible with EU law. The HRA on the other hand states that the court can make a declaration of incompatibility. Further, while the court ‘must’ try to read legislation compatibly with human rights under section 3, if it is unable to do so it ‘may’ revert to section 4.[42]  This is a much more convincing reading of section 4 than that put forward in Nicklinson and Ewart JR. More so when one considers the legal effect of a section 4 declaration.

In criticising the Nicklinson judgment for not making a DOI, Elizabeth Wicks reiterates the legal and constitutional significance of a court-made DOI.[43] First, she argues the Nicklinson approach implies that a ‘section 4 declaration usurps the role of Parliament whereas in reality it is a power explicitly given to the courts by Parliament’.[44]  Second, a DOI is only declaratory and refers the matter back to parliament. Third, she reiterates the point made above that the discretion granted to courts in issuing a DOI is only relative to the inability to read the legislation, as it is, as compatible with human rights.[45] Fourth, she points out that parliament has the option of doing nothing in response to a DOI. Within the dynamic of section 3 and 4 it is evident that Parliament was ever mindful of the balance between empowering courts to protect rights whilst preserving the democratic legitimacy of laws.

Articles 8-11 of the ECHR are expressly qualified rights and aim to balance considerations of individual interests against the interests of the democratic society as a whole. In the adjudication of the substantive right, the court balances the interference and negative ramifications of a measure against public values such as ‘public morality’, ‘public order’, or national security considerations. This balancing exercise was conducted by the UKSC in Re NIHRC in determining whether abortion laws imposed a disproportionate interference on an individual in cases of FFA. It took into account public opinion and the harm suffered by the applicant. It found the law did impose a disproportionate interference. In this way, the adjudication of the substantive right offers further due deference to parliament and the executive. If the judge overcomes those substantive hurdles in the merits, then it tips the balance inappropriately away from individual rights protection towards the executive in an illegitimate fashion to then invoke ‘moral sensitivity’ or ‘political difficulty’ at the point of denying a remedy despite finding an incompatibility.

Colm O’Cinneide pinpoints the potential negative practical ramifications of this approach: ‘the potential problem with this line of reasoning is that it opens the way for breaches of Convention rights to be denied any remedy’ even a DOI.[46]

The reason why the judge in Ewart JR may have deferred pronouncing on the remedy is because of the ticking clock towards the 21 October 2019 deadline. On that date the NIEF which decriminalises abortion in Northern Ireland will come into effect. Policing and prosecution of abortion related offences will be prohibited. Perhaps the High Court finds it is unnecessary, in this context, to make a DOI: reform has arrived. But it is necessary – the applicant deserves a remedy and the future is uncertain. An unequivocal declaration is important in case the new law fails to be enforced or regresses or in case the Northern Irish Assembly decides to reform during the interim period and hinder the implementation of the new law. Perhaps there is a concern that it would have been premature to make a DOI without waiting to see if the Assembly reconvened before the 21st October deadline. Perhaps there is not full acceptance of the legitimacy of the new reforms from Westminster and that if there is a chance for the Assembly to intervene the court should wait. These points are highly speculative. Neither consideration was articulated in the judgment and neither is relevant to whether a DOI should be made.

Conclusion

While an end of October deadline for a potential ‘no-deal’ Brexit did little to motivate the Northern Irish Assembly to reconvene, despite a British border on the island of Ireland being a central subject of contention in the Brexit negotiations, the decriminalisation of abortion October deadline has provoked renewed political support for trying to get the assembly ‘up and running’.[47] The introduction of same sex marriage by the NIEF on the same date does not seem to have provoked the same tenor of response. The remaining uncertainty around the future of abortion reform in Northern Ireland throws into light the importance of human rights litigation in moving forward.

[1] In the Matter of an application by Sarah Ewart for Judicial Review 3/10/2019 (Ewart JR). Please note, the version of the judgment available to the author is subject to minor editorial changes prior to its official publication. The press summary is available here: ‘Court Delivers Abortion Legislation Judgment’ (Judicial Communications Office, 3rd October 2019) <https://judiciaryni.uk/sites/judiciary/files/decisions/Summary%20of%20judgment%20-%20Court%20Delivers%20Abortion%20Legislation%20Judgment.pdf> last accessed 15th October 2019.

[2] The Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety and others [2004] NICA 37. See further: Fiona Bloomer and Eileen Fegan, ‘Critiquing recent abortion law and policy in Northern Ireland’ (2013) 34(1) Critical Social Policy 109.

[3] Northern Irish women will be allowed to access abortion in Republic (Belfast Telegraph 15 November 2018) available at https://www.belfasttelegraph.co.uk/news/northern-ireland/northern-irish-women-will-be-allowed-to-access-abortion-in-republic-37533308.html

[4] Northern Ireland women to get free abortions in England (BBC News 29 June 2017) https://www.bbc.co.uk/news/uk-politics-40438390

[5] Functions of Health Boards (Scotland) Amendment Order 2017 (SSI 2017/304) 21st September 2017; Functions of Health Boards (Scotland) Order 1991, article 2 paragraph (2A)

[6] ‘Abortion – Women who live in Northern Ireland’ (NHSDirect Wales) available at <https://www.nhsdirect.wales.nhs.uk/encyclopaedia/a/article/abortionwomenwholiveinnorthernireland> last accessed 15th October 2019.

[7] See e.g. Amnesty International UK, ‘Northern Ireland: woman who bought abortion pills for daughter in court to challenge prosecution’ (20th September 2018) available at https://www.amnesty.org.uk/press-releases/northern-ireland-abortion-pills

[8] Accessories and Abettors Act 1861, s 8; Criminal Law Act (Northern Ireland)1967, s 9.

[9] Criminal Law Act (Northern Ireland) 1967, s 5.

[10] In the Matter of an Application by Sarah Ewart for leave to apply for Judicial Review [2018] NIQB 85 at [2].

[11] In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27 (Re NIHRC).

[12] For the argument that this was incorrectly decided see: Jane M Rooney, ‘Standing and the Northern Ireland Human Rights Commission’ (2019) 82(3) MLR 525. The Women and Equalities Committee has stated that this situation needs to be rectified immediately – the NIHRC needs to have standing in these cases: para 82 https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2017/abortion-northern-ireland-17-19/

[13] See e.g. Ministry of Justice report Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011-12, September 2012 available at http://www.justice.gov.uk/downloads/publications/policy/moj/responding-human-rightsjudgments.pdf

[14] NIHRC 2018 (n 6) paras 39-41. See further Lady Hale, ‘Devolution and The Supreme Court – 20 Years On’ on 14th June 2018.

[15] See representations made by then Secretary of State for Northern Ireland, Karen Bradley, in oral evidence to the Women and Equalities Committee inquiry into abortion law in Northern Ireland: Women and Equalities Committee, Oral Evidence: Abortion Law in Northern Ireland, HC 1584.

[16] See s 6(2)(c) and s 24(1)(a) Northern Ireland Act 1998; Women and Equalities Committee, ‘Abortion law in Northern Ireland’, 25th April 2019 paras 52-77. Available at <https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2017/abortion-northern-ireland-17-19/> last accessed 15th October 2019.

[17] Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, s 4(1) (a).

[18]  See further, Joint Committee on the Draft Domestic Abuse Bill, First Report of Session 2017-2019, 14th June 2019 available at <https://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-domestic-abuse-bill/> last accessed 15th October 2019.

[19] While a majority found the prohibition of abortion in cases of rape and incest incompatible with human rights, Lady Justice Black dissented on this point.

[20] Re NIHRC (n 11) para 371.

[21] Ibid para 61. For criticism of this approach see Lord Kerr and Lady Hale judgments and Rooney (n 12).

[22]Ibid para 61.

[23] HRA, s7(7): ‘a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 ECHR if proceedings were brought in the ECtHR’.

[24] Ewart JR (n 1) citing Norris v Ireland (1989) 13 EHRR 186; Ramadan v Malta (2016) ECHR App. No. 76136/12.

[25] Ibid para 54, 57, citing Sejdic v Bosnia Herzegovina (2009) 28 BHRC 201, which is in turn citing Burden v UK (2008) 24 BHRC 709 paras 33-34.

[26] Ibid para 62.

[27] Ibid para 74 citing HRA, ss 4(2) and (4).

[28] R (Nicklinson) v Ministry of Justice [2014] UKSC 38.

[29] Nicklinson should be distinguished from other cases where the judges pronounced obiter dicta on the incompatibility of a legal measure with human rights but ultimately found against the applicant on legal grounds. See e.g. Re NIHRC (n 11); R (Chester) v Secretary of State for Justice [2013] UKSC 63.

[30] Ibid para 111.

[31] Ibid para 114.

[32] Ibid para 116.

[33] Ibid para 116 citing R (Pretty) v Director of Public Prosecutions [2001] UKHL 61.

[34] Pretty v UK (2002) 35 EHRR 1.

[35] Gross v Switzerland (App. No. 67810/10) 14 May 2013; R (Debbie Purdy) v Director of Public Prosecutions [2009] UKHL 45 (HL).

[36] Report of the inquiry 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 19 July 2017, CEDAW/C/OP.8/GBR/1.

[37] Northern Ireland Life and Times Survey 2018: 90% of people agreed or strongly agreed that a woman should never go to jail for an abortion and 79% agreed or strongly agreed that there were circumstances where a woman should have access to an abortion; 81% of people surveyed believed abortion in cases of FFA should be legal: Ulster University reveals attitudes to abortion in Northern Ireland (16th June 2017) available at https://www.ulster.ac.uk/news/2017/june/ulster-university-research-reveals-attitudes-to-abortion-in-northern-ireland last accessed 15th October 2019.

[38] Report of the working group on Fatal Fetal Abnormality, ‘Healthcare and the Law on Termination of Pregnancy for Fatal Fetal Abnormality’ published on 25th April 2018 available at <https://www.health-ni.gov.uk/publications/report-working-group-fatal-fetal-abnormality last accessed 15th October 2019> last accessed 15th October 2019.

[39] See e.g. Stevie Martin, ‘Declaratory Misgivings: Assisted Suicide in a post-Nicklinson context’ (2018) Apr Public Law 209, 214.

[40] Ewart JR (n 1) paras 40-43.

[41] Martin (n 39) 210 citing T v SOS for Justice//Conway [2017] EWHC 2447 (admin).

[42] See further, Aileen Kavanagh, ‘The elusive divide between interpretation and legislation under the Human Rights Act 1998’ (2004) OJLS 259.

[43] Elizabeth Wicks, ‘The Supreme Court Judgment in Nicklinson: One Step Forward on Assisted Dying; Two steps back on Human Rights’ (2014) 23(1) Medical Law Review 144, 153-155.

[44] Ibid 153.

[45] Ibid 154.

[46] Colm O’Cinneide, ‘Human Rights and the UK Constitution’ in Jowell and Cinneide (eds), The Changing Constitution (9th edn, Oxford: OUP, 2019) 86.

[47] See e.g. Ralph Hewitt, ‘O’Loan calls on Smith to recall Northern Ireland Assembly ahead of abortion law change’ (Belfast Telegraph, 15th October 2019) available at https://www.belfasttelegraph.co.uk/news/northern-ireland/oloan-calls-on-smith-to-recall-northern-ireland-assembly-ahead-of-abortion-law-change-38597134.html ‘DUP backs O’Loan on Assembly recall ahead of abortion law change’ (Belfast Telegraph, 15th October 2019) https://www.belfasttelegraph.co.uk/news/northern-ireland/dup-backs-oloan-on-assembly-recall-ahead-of-abortion-law-change-38597705.html; Julian Smith MP, Northern Ireland Office https://twitter.com/NIOgov.

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