Abortion in Northern Ireland – High Court finds…

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. The effect is that there is no abortion service for those women who are 10-weeks pregnant or more except in the case of medical emergencies. 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 was 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, therefore, challenged: (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. In July 2021, the Secretary of State used this power in making the Abortion Services Direction 2021 directing the Department of Health and the Executive, amongst others, to take certain steps, including ensuring that comprehensive abortion services were available by 31 March 2022.

On 14 October 2021, the High Court found that the Secretary of State had breached his statutory duty to secure abortion in Northern Ireland expeditiously. It dismissed the Article 8 ECHR claim against the Minister for Health and the Executive Committee. In coming to his findings, the Judge stated:

The extent of the engagement between the Secretary of State and Department of Health was negligible; there was no evidence of any substantive engagement between April and September 2020. Even on 7 September 2020, the Secretary of State was told that Executive Committee agreement was highly unlikely “until legal action is brought against the SoS or Minister Swann”. The 2021 Regulations were not made, however, until 31 March 2021. He had, therefore, failed to act expeditiously to secure abortion services in Northern Ireland, in breach of his duty under s.9 of the 2019 Act.
The attitude of the Secretary of State changed significantly on receipt of the pre-action protocol letter from the NIHRC in November 2020.
There was a surprising delay on the part of the Minister of Health but, ultimately, he was not in breach of Article 8 ECHR; the pause in the commissioning process was justified in the exceptional circumstances of the COVID-19 pandemic.
As the Minister of Health had not yet provided the Executive with a paper on commissioning the full service, the claim against the Executive was dismissed. But given the evidence that the Executive would not make a decision on providing abortion services unless forced to do so by way of direction or judicial review, the Court stated that “those who are in public office, including the judiciary, must obey and apply the law. It should not be necessary for a court to mandate something by way of judicial review in circumstances where those in public office are not prepared to comply with their legal obligations because they disagree with the relevant law”.

This will not be the last we hear on this issue.

A further challenge was brought by the Society for the Protection of Unborn Children (“SPUC”) against the Abortion (NI) Regulations 2021 and the Abortion Services Direction 2021 on the following grounds: (a) they are unconstitutional for purporting implicitly to amend the Northern Ireland Act 1998; (b) they are ultra vires the enabling power in the Northern Ireland (Executive Formation etc) Act 2019; and (c) they breach Article 2(1) of the NI Protocol for violating the UN Convention on the Rights of Persons with Disabilities, given that they seek to enforce rules allowing abortion of fetuses with severe fetal abnormalities. The SPUC case was heard on 4-5 October 2021 and judgment is awaited.

Moreover, the Abortion Services Direction 2021 require the Department of Health to secure the comprehensive abortion services by 31 March 2022. This requires consideration and approval by the Executive. With only a few months left, it remains to be seen whether this date will be met.

David Blundell QC and Yaaser Vanderman acted for the Northern Ireland Human Rights Commission in the NIHRC case. Yaaser Vanderman is acting for the Northern Ireland Human Rights Commission in the SPUC case.

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