05:33, June 07 48 0 theguardian.com

2018-06-07 05:33:05
Northern Ireland abortion law clashes with human rights, judges say

The supreme court has dismissed the latest attempt to overturn Northern Ireland’s restrictive abortion laws but nonetheless concluded that they are incompatible with human rights.

By a narrow majority of four to three, justices at the UK’s highest court said it had no jurisdiction to consider the latest legal challenge because there was no actual or potential victim of an unlawful act involved in the case.

A majority of judges, however, went on to add that Northern Ireland’s abortion law was incompatible with the right to respect for private and family life as guaranteed by the European convention on human rights.

Four of the seven justices – Lady Hale, Lord Mance, Lord Kerr and Lord Wilson – said it was incompatible in prohibiting abortion in cases of rape and incest. A fifth, Lady Black, agreed with them that it was incompatible in cases of fatal foetal abnormality.

Although the decision is not a declaration of incompatibility – because the case has technically been dismissed – the judgment will add to the political pressure on the government and politicians in Northern Ireland to deal with the issue.

Delivering the judgment, Mance said: “The supreme court has no jurisdiction in these proceedings to give relief in respect of the challenge to Northern Ireland abortion law.

“The challenge to the compatibility of Northern Ireland law with the convention rights has however been fully argued and evidence has been put before the court about a number of specific cases. It would, in the circumstances, be unrealistic and unhelpful to refuse to express the conclusions at which I would have arrived had I concluded that the [Northern Ireland Human Rights] commission had competence to pursue the challenge.

“I would have concluded, without real hesitation at the end of the day, that the current Northern Ireland law is incompatible with article 8 of the [European human rights] convention insofar as it prohibits abortion in cases of fatal foetal abnormality, rape and incest but not insofar as it prohibits abortion in cases of serious foetal abnormality.” Three other judges agreed with him on that point, he added.

In his remarks, Kerr explained: “These findings do not represent a binding decision of the of the court. Technically, the findings are what are described as ‘obiter dicta’. In other words, the essential decision of the the court … is that the appeal is dismissed and no formal declaration of incompatibility has been made.”

In relation to incest cases, Kerr said: “To require in every instance a girl or woman to carry to term a foetus which was the consequence of exploitative and abusive behaviour and which is utterly abhorrent to her could not, we concluded, be considered as having struck the right balance between her rights and those of society.”

In terms of rape cases, the judge concluded: “A woman is potentially responsible for the child once born under a relationship which may continue for the rest of her life. For these reasons, we concluded that the blanket ban on abortion in cases of rape was plainly disproportionate.”

In terms of cases involving serious, but not fatal, foetal abnormalities, Kerr said the court unanimously said that it was compatible with human rights. He said: “Many children born with disabilities, even grave disabilities, lead happy, fulfilled lives. In many instances they enrich and bring joy to their families and those who come into contact with them. Moreover the difficulty in devising a confident and reliable definition of serious malformation we regarded as a potent factor against a finding of incompatibility.”

Kerr added: “In the course of these proceedings ... three enormously brave women gave unsparing accounts of their experiences of having to deal with a pregnancy where they knew that their babies were doomed to die, either shortly after birth or indeed before birth. No one who heard those accounts could fail to be moved by the courage of those women. Nor could they fail to have profound sympathy with the terrible ordeal which they had to endure.”