Landmark Chambers

News

Supreme Court finds Northern Irish ban on abortion in cases of rape, incest and fatal foetal abnormality in breach of Article 8

DATE: 08 Jun 2018

In one of its most significant constitutional judgments, the Supreme Court has found the Northern Irish ban on abortion in cases of rape, incest and fatal foetal abnormality to be in breach of Article 8 of the European Convention on Human Rights. The ban is the result of the operation of sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945.

The appellant, the Northern Irish Human Rights Commission, challenged the ban as incompatible with Articles 3, 8 and 14 read with Article 8, in cases of rape, incest and serious foetal abnormality. The case raised two key issues: the substantive issue of compatibility with Convention rights, and the procedural issue of standing. The Court held, by a 4-3 majority, that the Commission did not have standing to bring the underlying claim because of the absence of an actual or potential victim in the claim. However, it nonetheless concluded, again by a 4-3 majority, that the current law was in breach of Article 8 in cases of rape, incest and fatal foetal abnormality.

Lady Hale, Lord Mance, Lord Kerr and Lord Wilson were in the majority on the substantive issue on Article 8. Lord Reed, Lady Black and Lord Lloyd-Jones were in the minority. Lord Kerr and Lord Wilson would also have found the ban to be in breach of Article 3 in the same cases. Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones were in the majority on the procedural issue of standing. Lady Hale, Lord Kerr and Lord Wilson were in the minority.

For the judgment, see here. For press coverage of the judgment, see here and here.

David Blundell represented the appellant, the Northern Ireland Human Rights Commission, as junior counsel.