Thursday, 7 June 2018

Abortion and Northern Ireland ~ Supreme Court 7th June 2018

This morning the Supreme Court handed down judgment in the challenge from Northern Ireland to the law on abortion.  The proceedings were brought by the Northern Ireland Human Rights Commission (NIHRC) which was created, and has the powers give to it by, the Northern Ireland Act 1998 (as amended).  The court held, by a majority of 4 to 3, that the NIHRC did not have the legal right (standing) under the 1998 Act to bring the proceedings.  For this reason the court could not give a legally binding ruling on the substantive questions of the incompatibility of abortion law in Northern Ireland.

Nevertheless, the court had heard argument relating to incompatibility with Convention Rights and the justices undertook a comprehensive examination of the subject and expressed opinion on it.  Technically the opinion is not binding - it is obiter dicta - but, on any view, it has to be taken immensely seriously by those with power to legislate on these matters.  The court's opinion was that:

By a majority of 5 to 2 - In cases of fatal foetal abnormality - the law was incompatible with Article 8

By a majority of 4 to 3 - the law was also incompatible with Article 8 in cases where the pregnancy resulted from rape or incest.

A majority (4) would not have made a declaration that the law of Northern Ireland is incompatible with Article 3.  Two of the Justices would have made a declaration.  Lady Hale did not consider it necessary to decide this issue given her view on Article 8.

See the Court's Judgment and Summary.

For some discussion on this cse see Joshua Rozenberg at Law Society Gazette 18th June.


  1. Do you have an opinion on the oft-commented observation of barrister Jon Holbrook regarding the increasing power of the judiciary to make decisions that are better made by elected politicians? Usually through the "rights" industry.

  2. Jon Holbrook

    As I understand it, Mr Holbrook is critical of an aspect of Lady Hale's judgment. I need to read all of the judgments before expressing any view. However, it is crucial to note one point. Suppose that the Commission had actually had status to bring the challenge. In that event the court could have made declarations of incompatibility with Convention Rights. However, those declarations do not, in law, require the government to do anything. The decision whether to take legislative action continues to rest with Ministers and Parliament. This is the scheme of the Human Rights Act 1998.