Northern Ireland Abortion Challenge Heard in High Court

Following the Supreme Court decision in Re Northern Ireland Human Rights Commission [2018] UKSC 27 – in which the Northern Ireland Human Rights Commission brought proceedings challenging the then restrictive law on termination of pregnancy in Northern Ireland – the UK parliament enacted the Northern Ireland (Executive Formation etc) Act 2019 (the “2019 Act”) in July 2019. Amongst other things, this required enactment of an abortion regime that complied with domestic and international human rights standards. This was put into place by the Westminster government in the Abortion (Northern Ireland) Regulations 2020 (the “Abortion Regulations”), which essentially adopted the regime already available in England and Wales for Northern Ireland. The 2019 Act also imposed a duty on the Secretary of State to ensure a human rights-compliant regime was “implemented” in Northern Ireland “expeditiously”. The Abortion Regulations came into force on 31 March 2020. Notwithstanding the existence of a comprehensive abortion regime set out in law, the Department of Health and Executive Committee in Northern Ireland have failed to commission and fund abortion services. This has meant that the Health and Social Care Trusts in Northern Ireland have implemented limited abortion services using funds borrowed from other parts of their budgets. Those resources have become stretched over the last 9 months. The effect is that there is no abortion service for those women who are 10-weeks pregnant or more. In addition, there have been periods where some of the Trusts have been unable to provide any abortion services (i.e. before 10-weeks’ gestation) meaning that women living in those areas, including NAH who is a witness in these proceedings, have had to travel to England during the pandemic to obtain abortion services or obtain abortion pills from unregulated providers over the internet. The Human Rights Commission is, therefore, challenging: (a) the failure of the UK government to ensure expeditiously the existence of abortion services in all public health facilities in Northern Ireland, contrary to section 9 of the 2019 Act; and, (b) the failure of the NI Department of Health and Executive Committee to commission and fund an abortion service, contrary to Article 8 ECHR. Permission was granted for the challenge in February 2021. Subsequently, the Secretary of State made the Abortion (NI) Regulations 2021, giving him the power to direct the First Minister, deputy First Minister, a Northern Ireland Minister or Department to take action for the purposes of implementing a human rights-compliant abortion service. The Secretary of State has not yet used this power but has said he will do so if concrete progress has not been made by the summer recess. The hearing begins today in Belfast and will last two days. David Blundell QC and Yaaser Vanderman are acting for the Northern Ireland Human Rights Commission. Press reports of the challenge can be found on the BBC, the Guardian, the New York Times, and ITV News.

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