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. 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…)
By Marc Johnson, Lecturer in Law (Truman Boddon Law School)
Brexit has been a source of emotionally-charged debate. One point which has received plenty of attention is the sovereignty of Parliament and its relationship with EU membership. It is often explained that the EU’s ability to make laws (which can apply in the UK) is some form of forfeiture of sovereignty. However, this statement has a number of shortcomings, not least that it ignores the election of Members of the European Parliament by the UK, providing (at least to some degree) a democratic mandate to the European Parliament. I will use Schrödinger’s cat to suggest that sovereignty can be present in multiple places and remain intact, allowing the normal operation of both the UK Parliament and European Parliament, without offending a nuanced view of sovereignty. In order to do this, one must cast aside the orthodox views of sovereignty and start with a pragmatic and philosophical approach to Parliamentary Sovereignty as it today. Brexit is akin to lifting the lid of Schrödinger’s box to observe the actual state of sovereignty at a specific point in time, but in doing so it reduces the observers to that of a quantitative measurer, and asks ‘is it dead or alive’ – when, in fact, reality is far more complex than this. (more…)
By Miss Rose Slowe LLM, Senior Research Fellow (University of Bristol Law School).
With the Supreme Court having ruled on 24 January 2017 that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU has revolved around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the Government’s negotiation position. This post puts forward the hypothesis that such debates may be irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable (Prof Syrpis).
In R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5, the Supreme Court rejected the Government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50. Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration. (more…)