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. (more…)

Standing of the Northern Ireland Human Rights Commission in the UK Supreme Court Abortion Decision

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). (more…)