Northern Ireland’s strict abortion laws are incompatible with human rights legislation and need “radical reconsideration”, the UK’s highest court has urged.
A majority of a seven-strong panel of Supreme Court justices ruled the Northern Ireland Human Rights Commission (NIHRC) had no legal standing to bring its challenge against the abortion law.
But, by a majority, the judges also strongly expressed their opinion that the current laws are incompatible with article 8 of the European Convention on Human Rights (ECHR) – the right for respect for private and family life.
Deputy Supreme Court president Lord Mance said the present law “clearly needs radical reconsideration” and that the opinion of the court – while not legally binding – “cannot safely be ignored”.
Lord Mance said in a lengthy written ruling: “I am, in short, satisfied that the present legislative position in Northern Ireland is untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest.
“Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act.”
Giving his opinion, Lord Kerr praised three “enormously brave women” who gave “unsparing accounts” of having to deal with a pregnancy where they knew their babies were “doomed to die”.
He said: “No-one who heard those accounts could fail to be moved by the courage of those women.
“Nor could they fail to have profound sympathy with the terrible ordeal which they had to endure.”
The judge said the court had to carry out a “dispassionate analysis” of the difficult legal issues, but that the “nature of their suffering and the trauma of their experiences were by no means irrelevant” to the court’s decision.
He said that, where it is clear a foetus is suffering from a fatal abnormality, there is “no justification” in inflicting on the mother the “appalling prospect” of having to carry it to term.
The judge added: “Put simply, the balance cannot come down in favour of a law which imposes that experience on a woman.
“Quite apart from other considerations, the imposition of such a law fails to give any weight to the personal autonomy of a woman and her freedom to control her life.”
He also said the blanket ban was “disproportionate” in cases of rape and incest, adding: “To require in every instance a girl or woman to carry to term a foetus which was the consequence of exploitative and abusive behaviour and which is utterly abhorrent to her could not, we concluded, be considered as having struck the right balance between her rights and those of society.”
The justices said that because of their decision on the standing of the NIHRC, the Supreme Court “has no jurisdiction” in the proceedings to make a declaration of incompatibility.
Explaining why the commission did not have power to bring the case, Lord Mance said: “In summary, the present proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it.”
During proceedings in October last year, the NIHRC told the court the current law criminalises “exceptionally vulnerable” women and girls and subjects them to “inhuman and degrading” treatment.
A QC representing the commission argued that human rights were being breached, with those affected being forced to go through “physical and mental torture”.
The Supreme Court was asked to rule that a prohibition on abortions where a pregnancy arises from rape or incest, or “involves a serious foetal abnormality”, is unlawful.
Contesting the appeal, the Stormont Executive’s senior legal adviser, Attorney General John Larkin QC, said Northern Ireland’s criminal law on abortion is a matter for the “democratic judgment” of the legislature.
The legislature, he said, “has struck the proportionate balance required for the protection of the rights of women and unborn children”.
Submissions were also made at the Supreme Court by a number of bodies, including seven of the UK’s leading reproductive rights organisations, Humanists UK, Bishops of the Roman Catholic Dioceses in Northern Ireland, the Society for the Protection of Unborn Children and Amnesty International.
Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland.
Abortion is illegal except where a woman’s life is at risk or there is a permanent or serious danger to her mental or physical health.
Anyone who unlawfully carries out an abortion could be jailed for life.
The Northern Ireland Assembly voted in February 2016 against legalising abortion in cases of fatal foetal abnormality and rape or incest.
The debate on Northern Ireland’s restrictions on abortion has intensified after citizens in the Irish Republic voted by a landslide last month to liberalise the state’s laws.
An emergency debate on the issue was held in the House of Commons on Tuesday.
The UK Government has resisted calls to step in and legislate amid the ongoing powersharing impasse in Northern Ireland, insisting that any decision on abortion in the region has to be taken by locally elected politicians at Stormont.