Following the Supreme Court decision in Re Northern Ireland Human Rights Commission  UKSC 27 – in which the 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. 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 Abortion Regulations came into force in 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 yet 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. The effect is that there is currently 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 meaning that women living in those areas have, therefore, had to travel to England to obtain abortion services or obtain abortion pills from unregulated providers over the internet.
The Human Rights Commission has, therefore, challenged: (a) the failure of the UK government to ensure the existence of abortion services in all public health facilities in Northern Ireland, contrary to section 9 of the Northern Ireland (Executive Formation etc) Act 2019; 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 has now been granted for the challenge and the full hearing has been listed for 26-27 May 2021.