Northern Ireland abortion law 'inhumane and degrading', Supreme Court told

Northern Ireland, unlike the rest of the UK, is not subject to the 1967 Abortion Act. Credit: PA

Northern Ireland's strict abortion law subjects women and girls to "inhuman and degrading" treatment and discriminates against them on grounds of sex, the UK's highest court has heard.

Northern Ireland, unlike the rest of the UK, is not subject to the 1967 Abortion Act, and the procedure remains illegal except if the woman’s life is at risk, or there is a permanent or serious danger to the mother’s mental of physical health.

Following earlier legal rulings in Northern Ireland, the Supreme Court in London will focus on the law that forbids abortion in cases of fatal foetal abnormality or where the pregnancy arises through rape or incest.

Currently in Northern Ireland, anyone that carries out an unlawful abortion faces life imprisonment.

Tuesday's submissions were made by Nathalie Lieven QC at the beginning of a three-day appeal brought by the Northern Ireland Human Rights Commission (NIHRC).

Ms Lieven argued on behalf of the commission that the prohibitions also amounted to an "unjustified" breach of their personal right to autonomy.

She also read evidence from three women relating to their experiences of being unable to have an abortion in Northern Ireland, despite fatal foetal abnormalities.

Ms Lieven described their "trauma and humiliation" and said they were forced to go through "physical and mental torture".

The NIHRC, which launched judicial review proceedings in 2014, argues that the current law's effect on women contravenes their rights under the European Convention on Human Rights (ECHR).

The Belfast High Court declared in 2015 Ireland’s criminal abortion law was incompatible with Article 8 of the ECHR, the right to respect for private and family life, because of the absence of exceptions in cases of fatal foetal abnormalities and pregnancies resulting from criminal offences.

That decision was overturned by in June of this year by three of Northern Ireland's most senior judges.

The appeal judges said the law in Northern Ireland should be left to the Stormont Assembly and not judges, saying that the complex moral and religious questions behind the issue should be determined by a legislature rather than a court.

The Northern Ireland Assembly voted in February last year against legalising abortion in cases of fatal foetal abnormality and rape or incest.

A fatal foetal abnormality means doctors believe an unborn child has a terminal condition and will die in the womb or shortly after birth.

Leading the panel of seven judges, Lady Hale, along with deputy Supreme Court president Lord Mance, are being asked to make findings on two issues:

  • Is the current legislation incompatible with Article 8 and other articles which provide protection from torture and inhuman or degrading treatment or punishment and from discrimination, including on the ground of sex?

  • Does the Northern Ireland Act 1998 entitle the NIHRC to bring the proceedings under the Human Rights Act 1998 to seek a declaration of incompatibility?

The Stormont Executive's senior legal adviser, Attorney General John Larkin QC, with the Justice Department, argue that the commission does not have legal power to bring the case and says it has failed to identify an unlawful act.

In written argument before the court, Ms Lieven said both the Attorney General and the Department for Justice "are at pains to suggest there is no jurisdiction" for the Supreme Court to consider the challenge, because of the commission's "lack of standing and a failure to identify an unlawful act".

She argued: "Neither suggestion is correct."

Referring to this year's ruling in the case by appeal judges, the QC said they had placed "considerable weight on the suggestion that it was inappropriate for the courts to intervene in an issue as sensitive as the law on termination of pregnancy, preferring instead to leave the matter to the legislative process".

She added: "But this is a process which has demonstrably failed to protect women's and girls' human rights."

The NIHRC's chief commissioner, Les Allamby, said in a statement: "This case has the opportunity to bring about a real change to the law on termination of pregnancy in Northern Ireland.

"The commission took legal action as we want women and girls in Northern Ireland to have the choice of accessing a termination of pregnancy locally in circumstances of serious malformation of the foetus, rape or incest, without getting a criminal record or facing going to prison."

He added that the case was of "great significance in the UK and internationally".

The hearing is due to last for three days.