In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)

Trinity Term

[2018] UKSC 27

On appeal from: [2017] NICA 42

In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland)

before

Lady Hale, President

JUDGMENT GIVEN ON

7 June 2018

Heard on 24, 25 and 26 October 2017

Appellant	Respondent (1)
(NIHRC)	(Department of Justice)
Nathalie Lieven QC	Tony McGleenan QC
Laura McMahon BL	Paul McLaughlin BL
David Blundell	Emma McIlveen BL

Commission)	Office, Department of
Finance and Personnel)

Respondent (2)

(Attorney General for

Northern Ireland)

John F Larkin QC

Attorney General for NI

Martin Chamberlain QC

Denise Kiley BL

(Instructed by Office of The Attorney General for

Northern Ireland)

Interveners

Counsel details

Instructed by

LADY HALE:

1. This has proved an unusually difficult case to resolve. Not only are the substantive issues, relating to the compatibility of abortion law in Northern Ireland with articles 3 and 8 of the European Convention on Human Rights (the ECHR or the Convention), of considerable depth and sensitivity; but there is also the procedural issue raised by the Attorney General for Northern Ireland, who challenges the standing of the Northern Ireland Human Rights Commission (NIHRC) to bring these proceedings. The court is divided on both questions, but in different ways.

2. On the substantive compatibility issues, a majority - Lord Mance, Lord Kerr, Lord Wilson and I - hold that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 of the Convention, insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality. Lady Black agrees with that holding in the case of fatal foetal abnormality. Lord Kerr and Lord Wilson also hold that it is incompatible with the right not to be subjected to inhuman or degrading treatment, guaranteed by article 3 of the Convention. Lord Reed and Lord Lloyd-Jones hold that the law is not incompatible with either article 8 or article 3.

3. On the procedural issue, a majority - Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones - hold that the NIHRC does not have standing to bring these proceedings and accordingly that this court has no jurisdiction to make a declaration of incompatibility to reflect the majority view on the compatibility issues. A minority - Lord Kerr, Lord Wilson and I - hold that the NIHRC does have standing and would have made a declaration of incompatibility.

4. In these unusual circumstances, it is not possible to follow our usual practice and identify a single lead judgment which represents the majority view on all issues. We have therefore decided to revert to the previous practice of the appellate committee of the House of Lords and print the judgments in order of seniority. It is for that reason only that my judgment comes first. Far more substantial judgments on all issues follow from Lord Mance and Lord Kerr.

Introduction

5. The substantive questions in this case are legal issues - specifically related to the implementation in UK law, by the Human Rights Act 1998 (HRA), of the ECHR, which in turn has to be interpreted in the light of other international treaties to which the UK is a party, in this case the United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) and the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD). Moral and political issues, important though they undoubtedly are, are relevant only to the extent that they are relevant to the legal issues which have to be resolved.

6. The starting point for any discussion of the legal issues has to be the right of all human beings, male and female, to decide what shall be done with their own bodies. This right has long been recognised by the common law: it is the reason why consent is needed for invasive medical treatment however well-intentioned: see

Montgomery v Lanarkshire Health Board (General Medical Council intervening)

[2015] AC 1430. It is also recognised by the ECHR: see Pretty v United Kingdom

(2002) 35 EHRR 1, where it was said that “the notion of personal autonomy is an

important principle underlying the interpretation of its guarantees” (para 61). For

many women, becoming pregnant is an expression of that autonomy, the fulfilment of a deep-felt desire. But for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will there can be few greater invasions of their autonomy and bodily integrity.

7. The point is vividly made in Professor Thomson’s famous article (“A Defence of Abortion”, reprinted in R M Dworkin (ed), The Philosophy of Law):

“You wake up in the morning and find yourself back to back in

bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night

the violinist’s circulatory system was plugged into yours, so

that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you,

‘Look, we’re sorry the Society of Music Lovers did this to you

- we would never have permitted it had we known. But still, they did it, and the violinist is now plugged into you. To unplug

you would be to kill him. But never mind, it’s only for nine

months. By then he will have recovered from his ailment, and

can be safely unplugged from you’.”

There can be no doubt that the grossest invasion of your legal rights has taken place: the question is whether you are now under a legal duty to endure that invasion for the next nine months.

8. By definition we are here considering the cases of women and girls who either did not want to become pregnant at all, or having experienced the joy of a wanted pregnancy, have reached the agonising conclusion that because of the foetal abnormalities, they do not wish to carry the pregnancy to term. There will of course be women who decide that they do wish to continue the pregnancy despite the circumstances. Any woman or girl who finds herself in such a situation and wants an abortion will have made her own moral choice, often a very difficult moral choice. The question is whether others, many of whom will never be placed in that situation, are entitled to make a different moral choice for her, and impose upon her a legal obligation to carry the pregnancy to term.

9. The present law, contained in sections 58 and 59 of the Offences Against the Person Act 1861, an Act of the UK Parliament, and section 25(1) of the Criminal Justice Act (NI) 1945, an Act of the Northern Ireland legislature, does impose that obligation upon her, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health. Indeed, it does more than that. It has, as the United Nations Committee on the Elimination of Discrimination against

Women has recently pointed out, a “chilling effect” upon clinicians, who are

reluctant to discuss the options for fear of being thought to “aid, abet, counsel or procure” an abortion which might be unlawful. It also discourages women who have

had abortions, lawful or unlawful, from seeking proper after-care, because of section 5 of the Criminal Law Act (NI) 1967: anyone who knows or believes that an offence has been committed and has information which might be of material assistance in securing the apprehension, prosecution, or conviction of the person who committed it, commits an offence if they fail without reasonable excuse to give that information to the police within a reasonable time. The Departmental Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland (March

2016) draws professionals’ attention to both these risks. The Royal Colleges of

Obstetricians and Gynaecologists, of Midwives and of Nursing described the 2013 draft as intimidating for women and for professionals and the CEDAW Committee

found that the finalised Guidance “perpetuates such intimidation” (Report of the

inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/GBR/1, published 23 February 2018, para 18).

10. This being the state of the law in Northern Ireland, it is not suggested that this Court can strike it down or interpret it out of existence. The only question is whether it is incompatible with either article 3 or article 8 of the ECHR and whether the Court both can and should declare it so. The first question, therefore, is whether the NIHRC has standing to bring these proceedings.

Standing

11. This is an arid question, because there is no doubt that the NIHRC could readily have found women who either are or would be victims of an unlawful act under the Human Rights Act 1998 and either supported or intervened in proceedings brought by those women. The relevant sections of the Northern Ireland Act 1998, which established the Commission, are set out in full in paras 48, 49 and 50 of Lord

Mance’s judgment.

12. Under section 69(5) of the Northern Ireland Act 1998, the NIHRC may do two things: the first is to give assistance to individuals in accordance with section 70 (section 69(5)(a)). Section 70 applies to proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has brought or wishes to bring (section 70(1)(a)) or proceedings in which such a person relies or wishes to rely on such law or practice (section 70(1)(b)). This will clearly encompass, not only actions brought under section 7(1)(a) of the HRA, but also other proceedings in which a person wishes to rely on the HRA; the latter must include cases such as Ghaidan v Godin-Mendoza [2004] 2 AC 557, in which there was no suggestion of an unlawful act by a public authority but the court was being asked to construe certain provisions of the Rent Act 1977 compatibly with the Convention rights.

13. The second thing that the NIHRC may do is to “bring proceedings involving law or practice relating to the protection of human rights” (section 69(5)(b)). Unlike

section 69(5)(a), there is no cross-reference to another section of the Act which might limit the breadth of that power. Nevertheless, it is argued that the power is

limited by section 71, which is headed “Restrictions on application of rights”.

14. The first thing to notice about section 71 is that it is directed to sections 6(2)(c) or 24(1)(a) of the Northern Ireland Act (set out in para 51 of Lord Mance’s

judgment). Section 71(1) provides that nothing in those sections shall enable a

person to bring any proceedings on the ground that “any legislation or act” is

incompatible with the Convention rights or to rely on any of the Convention rights in any such proceedings unless he would be regarded as a victim of the legislation or act in the European Court of Human Rights in Strasbourg. Section 6(2)(c) provides that an Act of the Northern Ireland Assembly is outside its competence

(and thus “not law” under section 6(2)) if it is incompatible with any of the

Convention rights. Section 71(3) limits the scope of that prohibition. Section 24(1)(a) provides that a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the Convention rights. Section 71(4) similarly limits the scope of that prohibition. The aim of section 71(1) was thus to prevent private persons bringing proceedings to challenge Acts of the Assembly, subordinate Northern Irish legislation or executive acts unless they could claim to be victims. But, under section 71(2), the principal Law Officers of England, Northern Ireland and Scotland could bring such proceedings.

15. It is not clear why the original version of section 71(1) (set out in para 175 of Lord Kerr’s judgment) referred to section 69(5)(b), but it had the effect of preventing the NIHRC bringing proceedings to challenge “any legislation or act”, because the

NIHRC could never (or hardly ever) claim to be a victim of such legislation or act. That defect was recognised by the House of Lords in In re Northern Ireland Human Rights Commission [2002] NI 236 and the problem dealt with by deleting the reference to section 69(5)(b) in section 71(1) and expressly providing in section 71(2A) that the prohibition did not apply to the NIHRC. It is clear, therefore, that

the NIHRC has power to challenge “any legislation or act” without being its victim.

16. Sections 71(2B) and (2C) go on to deal with the Commission’s instituting or intervening in “human rights proceedings”. Section 71(2B)(a) makes it clear that the

Commission itself need not be a victim “of the unlawful act to which the proceedings

relate”. But section 71(2B)(c) provides that the Commission “may act only if there

is or would be one or more victims of the unlawful act”. By section 71(2C) “human

rights proceedings” means proceedings under section 7(1)(b) of the HRA or under

section 69(5)(b) of the Northern Ireland Act. Section 7(1)(b) refers to claims that a public authority has acted or proposes to act incompatibly with a Convention right, which claims may be relied on in any legal proceedings, but only if the person making the claim is or would be a victim of the unlawful act. Construing the

subsection as a whole, the reference to “proceedings under section 69(5)(b)” must

mean proceedings brought by the NIHRC claiming that a public authority has acted or proposes to act incompatibly with a Convention right. It then makes perfect sense for section 71(2B)(c) to provide that the NIHRC can only bring proceedings in respect of an unlawful act if there is or would be a real victim of such an act.

17. But we know that the Human Rights Act provides two different methods of seeking to ensure compliance with the Convention rights. One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful act in other proceedings, pursuant to section 7(1) of the HRA. The other is to challenge the compatibility of legislation under sections 3 and 4 of the HRA, irrespective of whether there has been any unlawful act by a public authority. This may be done in proceedings between private persons, as in Wilson v First County Trust (No 2) [2004] 1 AC 816 and Ghaidan v Godin-Mendoza. But it may also be done in judicial review proceedings brought by person with sufficient standing to do so. A current example is Steinfeld v Secretary of State for Education [2017] 3 WLR 1237, where the provisions in the Civil Partnership Act 2004 limiting civil partnerships to same sex couples are under challenge. The NIHRC clearly has standing to bring such proceedings by virtue of section 69(5)(b).

18. In my view, therefore, section 71(2B) and (2C) are dealing only with proceedings brought by the NIHRC, or interventions by the NIHRC in proceedings brought by others, in respect of claims that a public authority has acted or proposes to act unlawfully. Not surprisingly it requires that there be an identifiable victim of such an unlawful act. But it does not apply to or limit the general power of the NIHRC to challenge the compatibility of legislation of any sort under sections 3 and

4 of the HRA. This would be clearer still if the words “if any” were inserted after “unlawful act” in section 71(2B)(c), but it is in my view clear that “the unlawful act”

means “the unlawful act alleged in the proceedings”, so it does not apply where no

such unlawful act is alleged. For the reasons given by Lord Kerr, it would be very

surprising if it did limit the NIHRC’s power to bring such a challenge. It is to my

mind clear that the Equality and Human Rights Commission in Great Britain, albeit

operating under different legislation (set out in para 63 of Lord Mance’s judgment),

does have that power, so there can be no objection in principle.

Article 8

19. I propose first to address the compatibility of Northern Ireland abortion law with article 8 of the ECHR, because it is common ground that the current law is indeed an interference with the right of pregnant women and girls to respect for their private lives which is guaranteed by article 8(1). The question is whether in terms

of article 8(2) it is justified because it is “in accordance with the law and is necessary

in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others”. In answering the second part of that question,

it is now customary to ask whether the measure in question has a legitimate aim, is rationally connected to that aim, and is a proportionate means of achieving it. For the reasons given by Lord Kerr and Lord Mance, I agree that such interference is not justified, but would like to make a few points of my own.

20. Although the current state of the law has been criticised for its lack of clarity - and is certainly not as clear as is the law in the rest of the UK - it is no more uncertain than many other areas of the law which rely upon the application of particular concepts - in this case a risk to life or of serious and prolonged or permanent injury to physical or mental health - to the facts of a particular case. It is

also sufficiently accessible to those affected by it for the interference to be “in

accordance with the law” for this purpose.

21. It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn - it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman - that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under the both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two.

22. Where there is no consensus of opinion among the member states of the European Union, the Strasbourg court will usually allow individual member states

a wide (though not unlimited) “margin of appreciation” when undertaking such

balancing exercises. In A, B and C v Ireland (2010) 53 EHRR 13, the majority of the Grand Chamber of the Strasbourg court took the unusual step of holding that the

margin of appreciation allowed to Ireland had not been “decisively narrowed”,

despite the existence of a consensus amongst a substantial majority of the contracting States allowing abortion on wider grounds than those allowed under Irish law (which was and, for the time being at least, remains even narrower than the law in Northern Ireland). The majority felt able to do this because the prohibition

was based on the “profound moral views of the Irish people as to the nature of life”

and women had the right “to lawfully travel abroad for an abortion with access to

appropriate information and medical care in Ireland” (para 241). The minority (of

six) pointed out that this was the first time that the court had disregarded a European

consensus on the basis of “profound moral views” and considered it a “real and

dangerous new departure”, even assuming those views were still well embedded in

the conscience of the Irish people (para O-III11).

23.       Two of the women in the A, B and C case were seeking abortions on what

were described as “health and well-being grounds”: the majority found no violation.

The third was concerned that continuing her pregnancy might endanger her life

because she had cancer: the Court found a violation of the State’s positive obligation

to secure effective respect for her private life because there was no accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland.

24. The position in this case is quite different. In the first place, there is no evidence that the profound moral views of the people of Northern Ireland are against allowing abortion in the three situations under discussion here. Quite the reverse. There is a remarkably consistent series of public opinion polls showing majority support for abortion in these circumstances. The most recent survey was a serious academic study, more rigorous than a conventional opinion poll (the results of the

Northern Ireland Life and Times Survey are set out in para 110 of Lord Mance’s

judgment). This evidence cannot be lightly dismissed when the argument is that profound moral views of the public are sufficient to outweigh the grave interference with the rights of the pregnant women entailed in making them continue their pregnancies to term even though they, by definition, have reached a different moral conclusion - no doubt, for many, an agonising one.

25. In the second place, we are dealing with three very different situations from those with which the A, B and C case was concerned, situations in which it cannot seriously be contended that a pregnant woman has a duty to carry the pregnancy to term. In the case of rape, not only did she not consent to becoming pregnant, she did not consent to the act of intercourse which made her pregnant, a double invasion of her autonomy and the right to respect for her private life. In this connection, it is worth noting that the Sexual Offences (Northern Ireland) Order 2008 labels two offences rape: article 5 makes it the offence of rape intentionally to penetrate, inter alia, a vagina with a penis where the woman does not consent and the man does not reasonably believe that she consents; article 12 makes it the offence of rape of a child intentionally to penetrate a person under 13 with a penis, irrespective of consent or a belief in consent; both offences carry a maximum of life imprisonment.

Article 16 is labelled “Sexual activity with a child” and makes it an offence for a

person of 18 or older intentionally to touch another person where the touching is sexual and that other person is either under 16 and the toucher does not reasonably believe that she is 16 or over or she is under 13. If the touching involves penetration of a vagina with a penis, the offence carries a maximum sentence of 14 years imprisonment. Thus the only difference between the article 16 offence and the article 12 offence is that, if the child is 13 or over but under 16, no offence is committed if the penetrator reasonably believed that she was 16 or over. Consent or reasonable belief in consent does not feature in either offence. Thus it is conclusively presumed in the law of Northern Ireland that children under 16 are incapable of giving consent to sexual touching, including penetration of the vagina by a penis. It is difficult, therefore, to see any reason to distinguish between the offences under article 12 and article 16 for the purpose of this discussion, nor indeed to exclude pregnancies which

would be the result of an offence under article 16 were it not for the penetrator’s

reasonable belief that the child was 16 or over: she is still deemed incapable of
giving a real consent to it.

26. The claim refers only to “rape” and “incest” (as well as foetal abnormality) but there is no longer any offence labelled “incest” in Northern Ireland law. There

is, however, an offence under article 32 of the 2008 Order labelled “Sexual activity with a child family member” which follows the same pattern as article 16: it covers

sexual touching of a child whom the toucher knows or can reasonably be expected to know is related in the defined ways; if the child is 13 but under 18 the toucher must not believe that she is 18 or over; no such exception applies if the child is under

13; the offence carries a maximum penalty of 14 years’ imprisonment if the touching

involves penetration, inter alia, of the vagina. Article 68 creates an offence labelled

“Sex with an adult relative: penetration” and article 69 creates an offence of

consenting to such penetration. Thus the criminal law covers (in substance) the same ground as was previously covered by the law of incest. I see no reason to exclude pregnancies which are the result of the offences created by articles 16, 32 and 68 from this discussion. Nor do I see any reason to treat child pregnancies resulting from penetration by a relative any differently from child pregnancies arising in other circumstances. Adult pregnancies are different, because there may have been genuine consent to the penetration. But the giving of that consent is itself an offence, and so the law should not treat it on the same footing as a real consent. Furthermore, as Lord Mance has convincingly demonstrated, there is good evidence that most intra-familial sexual relationships are abusive. And once again, by definition we are discussing a woman who does not consent to the pregnancy: she has made a conscious choice that she does not wish to continue with it.

27.       These are all, therefore, situations in which the autonomy rights of the

pregnant woman should prevail over the community’s interest in the continuation of

the pregnancy. I agree, for the reasons given by Lord Kerr and Lord Mance, that in denying a lawful termination of her pregnancy in Northern Ireland to those women and girls in these situations who wish for it, the law is incompatible with their Convention rights. I agree with Lord Mance, in particular, that relying on the possibility that she may be able to summon up the resources, mental and financial, to travel to Great Britain for an abortion if anything makes matters worse rather than better. This conclusion is reinforced by the recent Report of the CEDAW Committee. This contains a helpful discussion of the difficulties of travelling out of Northern Ireland for abortion, which it concludes is not a viable solution (paras 25 to 32).

28. The third type of case with which we are concerned, that of foetal abnormality, does have to be separated into cases where the foetus suffers from a fatal abnormality, one which will cause death either in the womb or very shortly after delivery, and other serious abnormalities. Both share the feature that the pregnancy may have been very much wanted by the woman, and her partner, and the news of the abnormality will have been doubly devastating. But in the case of fatal foetal abnormality, there can be no community interest in obliging the woman to carry the pregnancy to term if she does not wish to do so. There is no viable life to protect. It is, of course, essential that the diagnosis be as accurate as possible, but we have the evidence of Professor Dornan that, before the law was clarified in

Family Planning Association of Northern Ireland v Minister for Health, Social

Security and Public Safety [2004] NICA 39; [2005] NI 188, abortions were offered in such cases and there was a high level of accuracy in the diagnosis. Travelling to Great Britain is even more difficult in such cases, as the problem is often detected comparatively late in the pregnancy, at 18 to 20 weeks, which leaves very little time to make the arrangements and there may be no counselling offered on what the options are. If the woman does manage to travel, not only will she have all the trauma and expense associated with that, but also serious problems in arranging the repatriation of the foetal remains.

29. Serious foetal abnormality is a different matter. The CEDAW committee has obviously had some difficulty in reconciling its views on the legalisation of abortion, which it systematically recommends in all cases (Report, para 58), with the views of the United Nations Committee on the Rights of Persons with Disabilities. Thus the CEDAW Committee states (Report, para 60):

“The Committee interprets articles 12 and 16, clarified by GR

Nos 24 and 28, read with articles 2 and 5, to require States parties to legalise abortion, at least in cases of rape, incest, threats to the life and/or health (physical or mental) of the

woman, or severe foetal impairment.”

The Committee has not taken the view it does of the legalisation of abortion because there is an express provision to that effect in the Convention: it has taken the view that it is the inescapable conclusion from the rights which the Convention does recognise. Article 12 requires State parties to eliminate discrimination against women in the field of health care, in order to ensure equality between men and women in access to health care services. Article 16 requires the same in relation to family relations, including the right to decide freely and responsibly on the number and spacing of children. Article 2 is a general prohibition of discrimination against women and requires positive steps to achieve equality between men and women. Article 5 requires, inter alia, the elimination of practices based on the inferiority or superiority of either of the sexes or on stereotypical roles for men and women.

30.       However (Report, para 62):

“In cases of severe foetal impairment, the Committee aligns

itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities. While the Committee consistently recommends that abortion on the ground of severe foetal impairment be available to facilitate reproductive choice and autonomy, States parties are obligated to ensure that

women’s decisions to terminate pregnancies on this ground do

not perpetuate stereotypes towards persons with disabilities. Such measures should include the provision of appropriate social and financial support for women who choose to carry

such pregnancies to term.”

31.       Accordingly, the CEDAW Committee recommended to the UK that it adopt

legislation legalising abortion “at least” where there is a threat to the pregnant

woman’s physical or mental health; rape or incest; and severe foetal impairment,

including fatal foetal abnormality “without perpetuating stereotypes towards

persons with disabilities and ensuring appropriate and ongoing support, social and

financial, for women who decide to carry such pregnancies to term” (para 85). As

already stated, the guarantees contained in the ECHR should be interpreted in the light of other relevant international human rights instruments. Some may think that

the CEDAW Committee’s recommendations strike the right balance, but I recognise

and understand that others may think that they do not give sufficient weight to the

valuable and rewarding lives led by many people with serious disabilities.

Article 3

32. Article 3 differs from article 8 in several ways. First, the right not to be subjected to torture or inhuman or degrading treatment or punishment is absolute - it is not to be balanced against any other rights, including the right to life of people whose lives might be saved if, for example, a prisoner were tortured in order to discover their whereabouts. Second, therefore, the treatment complained of has to

reach what is referred to as a “minimum level of severity” but which actually means

a high level of severity in order to attract the prohibition. Third, although the motive with which the treatment is inflicted may be relevant, the principal focus is upon the effect upon the victim.

33. I have no doubt that the risk of prosecution of the woman, and of those who help her, thus forcing her to take that risk if she procures an illegal abortion in Northern Ireland, or to travel to Great Britain if she is able to arrange that, constitutes

“treatment” by the State for this purpose. It is the State which is subjecting her to

the agonising dilemma. I also have little doubt that there will be some women whose suffering on being denied a lawful abortion in Northern Ireland, in the three situations under discussion here, will reach the threshold of severity required to label

the treatment “inhuman or degrading”.

34. This is another respect in which article 3 is unlike article 8. In every case where a woman is denied a lawful abortion in Northern Ireland which she seeks in the three situations under discussion, her article 8 rights have been violated. But it cannot be said that every woman who is denied an abortion in such circumstances will suffer so severely that her rights under article 3 have been violated. It depends upon an intense focus on the facts of the individual case which the article 8 question, at least in the three cases under discussion, does not. This is not a situation, as it is under article 8, where the operation of the law is bound to produce incompatible results in every case. But neither is it a situation where the law can always be operated compatibly with the Convention rights if the public authority takes care to act in a way which respects those rights. Rather, it is a situation in which the law is bound to operate incompatibly in some cases. I have sympathy for the view expressed by Lord Kerr that the risk of acting incompatibly with article 3 rights is such as to engage the positive obligation of the state to prevent that risk materialising; but it is unnecessary to decide the point, in the light of my conclusion that the present law is incompatible with article 8 in the three respects discussed above.

Remedy

35. I have reached the following conclusions (i) that the NIHRC does have standing to challenge the legislation in question here; (ii) that, in denying a lawful abortion in Northern Ireland to a woman who wishes it in cases of rape, incest and fatal foetal abnormality, the law is incompatible with article 8 of the Convention; and (iii) that it will also operate incompatibly with article 3 of the Convention in some cases.

36. I agree, for the reasons given by Lord Kerr, that the incompatibility with article 8 cannot be cured by further reading down of section 58 of the Offences against the Person Act 1861 under section 3 of the HRA. Should we therefore make a declaration of incompatibility under section 4 of the HRA? I understand, of course, the view that this is a matter which should be left entirely to the democratic judgment of the Northern Ireland Assembly (or the United Kingdom Government should direct rule have to be resumed). But I respectfully disagree for several reasons.

37. First, although the Strasbourg court was prepared to accord Ireland a wide measure of appreciation in the A, B and C case, that was, as the minority pointed out, most unusual. It cannot be guaranteed that the Strasbourg court would afford the United Kingdom the same margin of appreciation in this case, given that public opinion in Northern Ireland is very different from assumed public opinion in Ireland at the time of the events in A, B and C. In any event, even if it did, that does not answer the question. It means only that the United Kingdom authorities have to decide what is, or is not, compatible with the Convention rights.

38. Second, this is not a matter on which the democratic legislature enjoys a unique competence. It is a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject. It falls within the principle accepted by the House of Lords in In re G (Adoption: Unmarried Couple) [2009] AC 173 and indeed by the majority of this Court in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657.

39. Third, Parliament has expressly given the higher courts the power to rule upon the compatibility or incompatibility of legislation with the Convention rights.

Parliament did not say, when enacting section 4 of the HRA, “but there are some

cases where, even though you are satisfied that the law is incompatible with the

Convention rights, you must leave the decision to us”. Parliamentary sovereignty is

respected, not by our declining to make a declaration, but by what happens if and

when we do. Parliament has three options. First, it may share the court’s view and approve a “fast track” remedial order under section 10 of the HRA, which is

appropriate if the matter is quite simple and easy to solve. Second, it may share our view and pass an Act of Parliament to put things right, which is appropriate if the matter is not simple and easy to solve, and complex arrangements have to be put in

place. Third, it may do nothing. This could be because it disagrees with court’s view,

and prefers to wait and see what view is eventually taken by the European Court of Human Rights. Or it could be because it is inclined to leave matters as they are for

the time being. The “do nothing” option is no doubt more attractive if the matter is

one which Strasbourg would regard as within the UK’s margin of appreciation. It is

at this point that the democratic will, as expressed through the elected
representatives of the people, rules the day.

40.       All that a declaration on incompatibility does, therefore, is place the ball in

Parliament’s court. This is not a case like Nicklinson in which the matter was already

before Parliament and the issues were not as clear cut: the case had changed from one of active euthanasia to one of assisted suicide in the course of its progress through the courts. In this case, if the court has reached a firm conclusion that the law is incompatible there is little reason not to say so, particularly where, as here, the UK has already been advised that the law is in breach of its international human rights obligations under another treaty.

41.       I would therefore have allowed this appeal and made a declaration

accordingly, but in the light of the majority’s view of the standing of the NIHRC to

bring these proceedings it must follow that we have no jurisdiction formally to

declare the majority’s view. But, as Lord Mance explains in para 135 that does not

mean that it can safely be ignored.

LORD MANCE:

Summary

Attorney General for Northern Ireland (“the respondents”), the Northern

Ireland Human Rights Commission (“the Commission”) challenges the

compatibility of the law in Northern Ireland with articles 3 and 8 of the

European Convention on Human Rights (“the Convention rights”), insofar as

that law prohibits abortion in cases of fatal and other foetal abnormality, rape
and incest.

(b) The respondents raise an initial objection to the challenge, that it is outside the Commission’s competence (in the sense of power) to institute

abstract proceedings of this nature (an actio popularis). I deal with this issue in paras 47 to 72. The courts below considered that the Commission had competence. The Supreme Court concludes by a majority, consisting of Lord Reed, Lady Black, Lord Lloyd-Jones and myself, that the objection is well- founded and that the courts below were wrong on this issue.

(c) It follows that the Supreme Court has no jurisdiction to give any relief in respect of the challenge to Northern Ireland abortion law. But that challenge has 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 Commission had competence to pursue the challenge.

(d) I would have concluded, without real hesitation at the end of the day, that the current state of Northern Ireland law is incompatible with article 8 of the 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: see paras 73 to 134. That conclusion, obiter in my case, is of the essence of the judgments of the three members of the Court (Lady Hale, Lord Kerr and Lord Wilson) who (dissenting) would have held that the Commission had competence. Lady Black would (obiter) reach the same conclusion as I do with regard to fatal foetal abnormality, but not rape or incest. Lord Kerr and Lord Wilson would go further than I would have done and hold that the current law in Northern Ireland law is also incompatible with article 3 of the Convention rights as regards fatal foetal

abnormality, rape and incest. Lady Hale’s view on this point appears in paras

28 to 30 of her judgment.

(e) With that summary, I will turn to introduce the proceedings more fully. However, those who may at the outset wish to have an idea of the distressing cases to which the Commission has drawn attention in the context of its challenge can look at once at paras 84 to 90 below.

Introduction

43.       This is an appeal in proceedings for judicial review commenced by the

Northern Ireland Human Rights Commission (“the Commission”) on 11 December

2014. By their Order 53 statement, the Commission sought general relief, unrelated

to any particular set of facts, consisting of:

a.	A declaration “pursuant to section 6 and section 4” of the Human

Rights Act 1998 (“the HRA”) that sections 58 and 59 of the Offences against

the Person Act 1861 (“the 1861 Act”) and section 25 of the Criminal Justice

Act (NI) 1945 (“the 1945 Act”) are incompatible with articles 3, 8 and 14 of

the European Convention on Human Rights so far as “they relate to access to

termination of pregnancy services for women with pregnancies involving a

serious malformation of the foetus or pregnancy as a result of rape or incest”;

b.	A declaration that, notwithstanding the provisions of the above

sections, “women in Northern Ireland may lawfully access termination of

pregnancy services within Northern Ireland in cases of serious malformation

of the foetus or rape or incest”;

c.	A declaration that “the rights of women in Northern Ireland with a

diagnosis of serious malformation of the foetus or who are pregnant as a result

of such rape or incest” are breached by the above sections; and/or

d.	such further or other relief as the Court might think appropriate.

44. The declarations sought to focus on three broad situations: serious malformation of the foetus; rape; and incest. In this judgment, I shall divide the first into fatal foetal abnormality and serious (but not fatal) foetal abnormality. The expert evidence before the judge indicated that doctors are well capable of identifying cases of fatal foetal abnormality, that is cases where the foetus will die in the womb or during or very shortly after birth. As to rape, it was made clear during the course of submissions before the Supreme Court, that the Commission, when commencing these proceedings, had in mind situations in which, because a child was under the age of 13, consent cannot in law be given, but had not focused on, for example, sexual offences (not described in law as rape) committed against children aged 13 or more, but under the age of 16. I return to this aspect in paras 73 and 131 below. As to incest, there was again no detailed examination of the offence(s) in question. There is no longer any offence called, in law rather than colloquially, incest. Since 2008, the relevant law is found in articles 32 to 36 and 68 to 69 of the Sexual Offences (Northern Ireland) Order 2008, mirroring sections 25 to 29 and 64 to 65 of the Sexual Offences Act 2003 in England and Wales. These articles introduce a very wide range of penetrative offences involving related persons, but it is only those which can lead to pregnancy which are presently relevant. In this

context, article 32 contains offences under the head “Sexual activity with a child family member”. This is capable of commission where the child family member (B)

is either under 18, and is someone who the person committing the offence (A) does not reasonably believe to be 18 or over, or is under 13. The relevant family relationships are defined in section 34, and the maximum punishment on conviction on indictment of an offence involving penetration of the vagina is up to 14 years.

Article 68 contains the offence of “Sex with an adult relative: penetration”, which

may, inter alia, be committed when a person aged 16 or over (A) penetrates the

vagina of (B) aged 18 or over. Article 69 contains the offence of “Sex with an adult relative: consenting to penetration”, which may be committed where A (aged 18 or

over) penetrates the vagina of B (aged 16 or over) with B’s consent. Articles 68 and

69 have their own definition of the prohibited relationships, and the maximum sentence on conviction of indictment is in each case up to two years. For convenience, I shall in this judgment continue to use the colloquial term incest to refer to all three offences, although it is clear that the legislator has identified a significant general difference between offences under article 32 involving a child family member on the one hand and offences under articles 68 and 69 involving adults. I shall consider the position in respect of incest in greater detail in paras 127 to 131 below.

1. In support of its Order 53 statement, the Commission’s Chief Commissioner,

Mr Les Allamby, swore an affidavit, confirming that the Commission’s case was

made pursuant to section 4 of the HRA and based on alleged incompatibility with Convention Rights of the sections identified above of both the 1861 and the 1945 Acts. In other words, it treated both Acts as primary legislation. On that basis, it is not clear on what basis it could have been thought that any relief could be granted beyond that identified in sub-para (1). Just conceivably, sub-paras (2) and (4) may have been framed to cover the possibility of a more expansive interpretation of the Bourne exception (deriving from R v Bourne [1939] 1 KB 687), along the lines which the Lord Chief Justice accepted in the Court of Appeal: para 79. Be that as it may be, while the 1861 Act is clearly primary legislation, the same cannot in my opinion be said of the 1945 Act. The 1945 Act was an Act of the Parliament of Northern Ireland, established by the Government of Ireland Act 1920. In terms of the HRA, it constitutes subordinate, rather than primary, legislation: see the definitions in section 21 of the HRA, and in particular paragraph (c) in relation to

“subordinate legislation”. For present purposes, this point may not prove significant,

since it is unclear what section 25 of the 1945 Act adds, at least in law, to sections
58 and 59 of the 1861 Act. Brice Dickson’s Law in Northern Ireland, para 7.17,

instances the 1945 Act as one of a number introduced in the face of jury reluctance to convict of existing offences with greater overtones of evilness in the same areas.

46.       Before the Supreme Court, the first issue is whether it was within the

Commission’s competence to seek the relief identified in sub-paragraph 43 above,

that is a general declaration of incompatibility in relation to primary legislation of the United Kingdom Parliament. This issue is raised both in direct response to the

Commission’s claim and pursuant to devolution questions referred to the Supreme

Court under section 33 of the Northern Ireland Act 1998 (“the NI Act 1998”) by the

Attorney General for Northern Ireland by notice dated 18 January 2017. The devolution questions which have been referred ask, in summary, whether the Commission was empowered to institute human rights proceedings or seek a declaration of incompatibility other than as respects an identified unlawful act or acts.

1. Only if it was within the Commission’s competence to issue proceedings for

the relief claimed, could the court make any declaration of incompatibility, even if incompatibility was otherwise established. The second issue, arising strictly only if the Commission had such competence, is whether any incompatibility is established. Both Horner J and the Court of Appeal held that the Commission had such competence. Having so held, Horner J went on to conclude that there was incompatibility, but only in so far as it is an offence to procure a miscarriage (a) at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality, or (b) up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest. The Court of Appeal, in three differently reasoned judgments, concluded that there was no incompatibility. The respondents, the Department of Justice and the Attorney General for Northern Ireland, appeal on the first issue, while the Commission appeals on the second issue.

The Commission’s competence to seek the relief claimed

1. Logically, the issue of the Commission’s competence should be taken first,

and I propose to do so, although in the event it will also be appropriate to express
views on the issue of incompatibility, which has been fully argued.

49. The Commission is a body corporate created by section 68 of the NI Act 1998. It was accepted by the House of Lords in In re Northern Ireland Human Rights Commission [2002] NI 236 that it only has such powers as are conferred on it by

statute, though these can “clearly include such powers as may fairly be regarded as

incidental to or consequential upon those things which the legislature has

authorised”: ibid, p 243C. The relevant statutory provisions in the current legislation

define the Commission’s functions as follows:

“69.	The Commission’s functions.

(1) The Commission shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.

(2) The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving -

(a)	its effectiveness;

(b) the adequacy and effectiveness of the functions conferred on it by this Part; and

(c) the adequacy and effectiveness of the provisions of this Part relating to it.

(3) The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights -

(a) as soon as reasonably practicable after receipt of a general or specific request for advice; and

(b)	on such other occasions as the Commission

thinks appropriate.

(4) The Commission shall advise the Assembly whether a Bill is compatible with human rights -

(a) as soon as reasonably practicable after receipt of a request for advice; and

(b)	on such other occasions as the Commission

thinks appropriate.

(5)	The Commission may -
(a) give assistance to individuals in accordance with
section 70; and
(b) bring proceedings involving law or practice relating to the protection of human rights.

(6) The Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland; and for this purpose it may undertake, commission or provide financial or other assistance for -

(a)	research; and
(b)	educational activities.

(7) The Secretary of State shall request the Commission to provide advice of the kind referred to in para 4 of the Human

Rights section of the Belfast Agreement …

(8A)	The Commission shall publish a report of its findings on

an investigation.

(8) For the purpose of exercising its functions under this section the Commission may conduct such investigations as it

considers necessary or expedient …

(9)	The Commission may decide to publish its advice and

the outcome of its research …

(10) The Commission shall do all that it can to ensure the establishment of the committee referred to in paragraph 10 of that section of that Agreement.

(11)	In this section -
(a) a reference to the Assembly includes a reference to a committee of the Assembly;
(b) ‘human rights’ includes the Convention rights.”

50.       Section 70 of the NI Act reads:

“70.	Assistance by Commission.
(1)	This section applies to -
(a) proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or
(b) proceedings in the course of which such a person relies, or wishes to rely, on such law or practice.

(2) Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to proceedings to which this section applies, the Commission may grant the application on any of the following grounds -

(a)	that the case raises a question of principle;

(b) that it would be unreasonable to expect the person to deal with the case without assistance because

of its complexity, or because of the person’s position in

relation to another person involved, or for some other
reason;

(c) that there are other special circumstances which

make it appropriate for the Commission to provide
assistance.

(3) Where the Commission grants an application under subsection (2) it may

(a)	provide, or arrange for the provision of, legal
advice;
(b)	arrange for the provision of legal representation;
(c)	provide any other assistance which it thinks

appropriate.

(4) Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from the person in certain

circumstances.”

51.       Section 71 reads as follows:

“71.	Restrictions on application of rights.
(1)	Nothing in section 6(2)(c) or 24(1)(a) shall enable a

person -

(a) to bring any proceedings in a court or tribunal on

the ground that any legislation or act is incompatible
with the Convention rights; or

(b) to rely on any of the Convention rights in any such proceedings unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights.

(2) Subsection (1) does not apply to the Attorney General, the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, the Advocate General for Scotland or the Lord Advocate.

(2A)	Subsection (1) does not apply to the Commission.

(2B) In relation to the Commission’s instituting, or

intervening in, human rights proceedings -

(a) the Commission need not be a victim or potential

victim of the unlawful act to which the proceedings
relate,

(b) section 7(3) and (4) of the Human Rights Act

1998 (c 42) (breach of Convention rights: sufficient
interest, &c) shall not apply,

(c) the Commission may act only if there is or would be one or more victims of the unlawful act, and

(d) no award of damages may be made to the

Commission (whether or not the exception in section
8(3) of that Act applies).

(2C)	For the purposes of subsection (2B) -
(a) ‘human rights proceedings’ means proceedings
which rely (wholly or partly) on -

(i)        section 7(1)(b) of the Human Rights Act

1998, or

(ii)       section 69(5)(b) of this Act, and

(b) an expression used in subsection (2B) and in

section 7 of the Human Rights Act 1998 has the same
meaning in subsection (2B) as in section 7.

(3)	Section 6(2)(c) -
(a) does not apply to a provision of an Act of the Assembly if the passing of the Act is, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, not unlawful under subsection (1) of that section; and
(b) does not enable a court or tribunal to award in respect of the passing of an Act of the Assembly any damages which it could not award on finding the passing of the Act unlawful under that subsection.
(4)	Section 24(1)(a) -
(a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section; and
(b) does not enable a court or tribunal to award in respect of an act any damages which it could not award on finding the act unlawful under that subsection.
(5)	In this section ‘the Convention’ has the same meaning

as in the Human Rights Act 1998.”

52. Sections 6(2)(c) and 24(1)(a), to which reference is made at the start of

section 71 address the legislative competence of, respectively, the Northern Ireland
Assembly and of Northern Irish Ministers and departments, as follows:

“6.	Legislative competence.

(1) A provision of an Act is not law if it is outside the legislative competence of the Assembly.

(2) A provision is outside that competence if any of the following paragraphs apply -

(a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland;

(b) it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters;

(c)	it is incompatible with any of the Convention
rights;
(d)	it is incompatible with EU law;

(e) it discriminates against any person or class of

person on the ground of religious belief or political
opinion;

(f)	it modifies an enactment in breach of section 7.

(3) For the purposes of this Act, a provision is ancillary to other provisions if it is a provision -

(a) which provides for the enforcement of those

other provisions or is otherwise necessary or expedient
for making those other provisions effective; or

(b)	which is otherwise incidental to, or consequential

on, those provisions; …

…

24.       EU law, Convention rights, etc.

(1) A Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act -

(a)	is incompatible with any of the Convention
rights;
(b)	is incompatible with EU law;

(c) discriminates against a person or class of person on the ground of religious belief or political opinion;

(d) in the case of an act, aids or incites another

person to discriminate against a person or class of
person on that ground; or

(e) in the case of legislation, modifies an enactment in breach of section 7.

(2) Subsection (1)(c) and (d) does not apply in relation to any act which is unlawful by virtue of the Fair Employment and Treatment (Northern Ireland) Order 1998, or would be unlawful but for some exception made by virtue of Part VIII of

that Order.”

53.       Sections 6, 7 and 8 of the HRA provide as follows:

“6.	Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)	Subsection (1) does not apply to an act if -
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3)	In this section ‘public authority’ includes -
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature;

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4)

…

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6)	‘An act’ includes a failure to act but does not include a

failure to -

(a)	introduce in, or lay before, Parliament a proposal

for legislation; or

(b)	make any primary legislation or remedial order.

7.         Proceedings.

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) ‘appropriate court or tribunal’

means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.

(4)	…
(5)	Proceedings under subsection (1)(a) must be brought

before the end of -

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal

considers equitable having regard to all the
circumstances,

but that is subject to any rule imposing a stricter time limit in

relation to the procedure in question.

(6)	In subsection (1)(b) ‘legal proceedings’ includes -
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or
tribunal.

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in

the European Court of Human Rights in respect of that act. …

8.         Judicial remedies.

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -

(a) any other relief or remedy granted, or order

made, in relation to the act in question (by that or any
other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just

satisfaction to the person in whose favour it is made.

(4)	In determining -
(a) whether to award damages, or (b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of

compensation under article 41 of the Convention. …”

54. The Commission relies on section 69(5)(b) of the NI Act 1998 for its power to bring these proceedings. But proceedings relying wholly or partly on section

69(5)(b) constitute, under section 71(2C)(a)(ii), “human rights proceedings” and are

subject therefore to the restrictions (taking this word from the heading of section 71) in section 71(2B). Under section 71(2B)(a), the Commission need not itself be a

victim or potential victim “of the unlawful act to which the proceedings relates” and,

consistently with this, section 71(2B)(b) provides that sections 7(3) and (4) of the HRA do not apply. But section 71(2B) contains a number of pointers to the fact that the legislature contemplated that human rights proceedings, for the purposes of section 71(2B), are proceedings which relate to an unlawful act. That contemplation

can be seen in the reference in section 71(2B)(a) to “the unlawful act to which the proceedings relate”. The provision in section 71(2B)(c) that “the Commission may

act only if there is or would be one or more victims of the unlawful act” reflects the

same contemplation. It is also consistent with the provision in section 71(2B)(d) that no award of damages may be made to the Commission, whatever the position would be under section 8(3) of the HRA, since section 8 addresses the possibility of an

award of damages as a remedy available in relation to an “act (or proposed act)

which the court finds is (or would be) unlawful”.

55.       The other type of proceedings which, under section 71(2C)(a)(i) constitute

“human rights proceedings” for the purposes of section 71(2B) and (2C), consists of

proceedings in which a person who “is (or would be) a victim of the unlawful act”

pursuant to section 7(1)(b) of the HRA relies on a Convention right. Section 71(2C)(a)(i) does not refer to section 7(1)(a), which provides that a person who claims that a public authority has acted or proposes to act in a way made unlawful by section 6(1) of the HRA may bring proceedings against the authority. It does not follow that its reference to section 7(1)(b) covers only situations where a Convention right is relied on by way of defence, rather than as the basis of a claim. Section 7(1)(b) is wide enough to cover both. This type of proceedings will by definition

involve the Commission “intervening” in, rather than “instituting”, the proceedings

within the opening words of section 71(2B). In this context, section 71(2B) reflects and regulates the existence of the incidental or consequential power which the House of Lords held the Commission to possess in In re Northern Ireland Human Rights Commission: see para 66 below.

56.       The Commission will, in contrast, be acting pursuant to its power under

section 69(5)(b) to “bring proceedings involving law or practice relating to the

protection of human rights”, when it institutes human rights proceedings within the

opening words of section 71(2B). The upshot under section 71(2B) and (2C) is that, where the Commission is intervening in human rights proceedings, the person instituting the proceedings must be an actual or potential victim of an unlawful act, and, where the Commission is itself instituting human rights proceedings, it need not be, but there must be an actual or potential victim of an unlawful act to which the proceedings relate.

57. By section 71(2C)(b), an expression used in subsection (2B) and in section 7 of the HRA has the same meaning in the former as in the latter. Section 7(1) of the HRA refers to section 6(1) of the HRA for the concept of an unlawful act, and that subsection provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. But the subsection is expressly stated, by

section 6(2), not to apply to (in summary) an authority’s act which was (a) compelled

by a provision of primary legislation or which was (b) to give effect to or enforce one or more provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with Convention rights. Further, by section 6(6), an act does not include a failure to introduce, or lay before Parliament a proposal for legislation or make any primary legislation.

1. It follows that the Commission’s powers under sections 69 and 71 of the NI

Act 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with

the Convention Rights. Neither the Westminster Parliament’s enactment of, nor its or the Northern Irish legislature’s failure to repeal or amend, the 1861 Act can

constitute an “unlawful act” under sections 6 and 7 of the HRA: see the preceding

paragraphs of this judgment. Such proceedings would not therefore involve any suggestion of an unlawful act within the meaning of section 7 of the HRA or, therefore, of section 71 of the NI Act. The Lord Chief Justice of Northern Ireland thought that this conclusion could be avoided by reading into section 71(2C)(a)(ii)

the additional words “in respect of unlawful acts” after “Act”: para 42. This would

leave section 69(5)(b) completely unconstrained and unregulated by section 71 as regards proceedings not relying on any unlawful act. That is by itself implausible. But, more fundamentally, there is neither a need nor any basis for any such words to be read into section 71.

59. A reading of section 71 as a whole makes clear that it was envisaged as establishing a limited jurisdiction. Section 71(1) identifies the requirement of victimhood to be satisfied by any person challenging legislation of the devolved Assembly or subordinate legislation or other acts of the devolved administration which are unlawful in terms of sections 6 and 7 of the HRA. Further, sections 71(3) and (4) make express that section 71(1) is not intended to embrace proceedings challenging legislation of the devolved Assembly or subordinate legislation or an act of the devolved administration which is, by virtue of section 6(2) of the HRA, not unlawful for the purposes of sections 6(1) and 7 of the HRA. It is in other words clear that no-one can claim to be an actual or potential victim in relation to any such devolved or subordinate legislation or devolved act if it was compelled by or done to give effect to or to enforce provisions of primary legislation.

60.       The exclusion of the Commission from section 71(1) is simply the prelude to

the Commission’s powers to institute or intervene in proceedings, but this is

carefully limited to situations where there is or would be an unlawful act, of the kind identified in section 7 of the HRA. It is likewise clear that the Commission cannot either institute or intervene in proceedings where neither it nor anyone else can claim to be an actual or potential victim of an unlawful act, because the situation falls within section 6(2) of the HRA. In these circumstances, it is, as I have said, implausible to suppose that Parliament by the NI Act 1998 at the same time intended the Commission to be able to institute or intervene in proceedings where the complaint was that primary legislation of the United Kingdom Parliament was itself incompatible with the Convention rights, without either referring to this or imposing any restriction on the circumstances. It would amount to carte blanche to the Commission, without having to establish any standing or interest other than its general interest in promoting and protecting human rights, to bring any proceedings it thought fit to establish the interpretation and/or incompatibility of primary legislation under section 3 and/or 4 of the HRA. This would contrast incongruously with the express and careful delimitation by Parliament of its capacity to institute or intervene in proceedings where - and only where - a specific unlawful act is in question under sections 6 and 7.

61. It is wrong to approach the present issue on the basis of an assumption that it would be anomalous if the Commission did not have the (apparently unlimited) capacity suggested to bring proceedings to establish the interpretation, or incompatibility with Convention rights, of any primary Westminster legislation it saw as requiring this for the better protection of human rights. The issue is one of statutory construction, not a priori preconception. It is in fact no surprise, in my view, that Parliament did not provide for the Commission to have capacity to pursue

what would amount to an unconstrained actio popularis, or right to bring “abstract”

proceedings, in relation to the interpretation of United Kingdom primary legislation in some way affecting Northern Ireland or its supposed incompatibility with any Convention right. On the contrary, it is natural that Parliament should have left it to claimants with a direct interest in establishing the interpretation or incompatibility of primary legislation to initiate proceedings to do so; and should have limited the

Commission’s role to giving assistance under sections 69(5)(a) and 70 and to

instituting or intervening in proceedings involving an actual or potential victim of
an unlawful act as defined in section 7 of the Human Rights Act 1998.

62.       True it is that sections 3 and 4 of the HRA are not made expressly subject to

the “victimhood” requirement which affects sections 6 and 7: R (Rusbridger) v

Attorney General [2004] 1 AC 357, para 21, per Lord Steyn; though they must undoubtedly be subject to the usual rules regarding standing in public law proceedings. However, a capacity to commence general proceedings to establish the interpretation or incompatibility of primary legislation is a much more far-reaching power than one to take steps as or in aid of an actual or potential victim of an

identifiable unlawful act. Further, Parliament’s natural understanding would have

reflected what has been and is the general or normal position in practice, namely that sections 3 and 4 would be and are resorted to in aid of or as a last resort by a person pursuing a claim or defence under sections 7 and 8: see Lancashire County Council v Taylor [2005] EWCA Civ 284; [2005] 1 WLR 2668, para 28, reciting

counsel’s submission, and paras 37-44, concluding that, to exercise the court’s

discretion to grant a declaration to someone who had not been and could not be

“personally adversely affected” would be to ignore section 7. This being the normal

position, it is easy to understand why there is nothing in section 71 to confer (the apparently unlimited) capacity which the Commission now suggests that it has to pursue general proceedings to establish the interpretation or incompatibility of primary legislation under sections 3 and/or 4 of the HRA, in circumstances when its capacity in the less fundamental context of an unlawful act under sections 6 and 7 is expressly and carefully restricted.

63.       In instructive written submissions by the Equality and Human Rights

Commission (“EHRC”) for England and Wales and Scotland as intervener, the

EHRC invites comparison with the legislation which governs it, and suggests that it would be incongruous if there were a distinction between the position in England, Wales and Scotland on the one hand and Northern Ireland on the other. Sections 9 and 30 of the Equality Act 2006 provide as follows in relation to the EHRC:

“9(1) Human rights

The Commission shall, by exercising the powers conferred by this Part -

(a)	promote understanding of the importance of

human rights,

(b)	encourage good practice in relation to human
rights,
(c)	promote awareness, understanding and

protection of human rights, and

(d) encourage public authorities to comply with

section 6 of the Human Rights Act 1998 (c 42)
(compliance with Convention rights).

…

30.       Judicial review and other legal proceedings

(1) The Commission shall have capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function.

(2) The Commission shall be taken to have title and interest in relation to the subject matter of any legal proceedings in Scotland which it has capacity to institute, or in which it has capacity to intervene, by virtue of subsection (1).

(3) The Commission may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c 42) (breach of Convention rights); and for that purpose -

(a) the Commission need not be a victim or potential

victim of the unlawful act to which the proceedings
relate,

(b) the Commission may act only if there is or would be one or more victims of the unlawful act,

(c)	section 7(3) and (4) of that Act shall not apply,
and

(d) no award of damages may be made to the

Commission (whether or not the exception in section
8(3) of that Act applies);

and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section.

(4)	Subsections (1) and (2) -
(a) do not create a cause of action, and
(b) are, except as provided by subsection (3), subject to any limitation or restriction imposed by virtue of an enactment (including an enactment in or under an Act of the Scottish Parliament) or in accordance with the
practice of a court.”

64. These provisions are different from those in the NI Act 1998, in both its original form and the form in which it was amended in 2007. It is open to argument under section 30(1) of the 2006 Act that the EHRC is given general capacity to initiate proceedings relevant to any matter in connection with which the Commission has a function, and that section 30(3) is merely regulating one particular kind of such proceedings. I need express no view on the correctness of

this argument. Even if it were correct, the mere perception that it might be “welcome and entirely sensible”, as the EHRC put it, if both the Northern Ireland Commission

and the EHRC had the same powers cannot help construe different statutory schemes
enacted at different times in different terms and without reference to each other.

65. For these reasons, I conclude that sections 69 and 71 are incapable of conferring on the Commission power to institute or intervene in proceedings in so far as the complaint relates to the suggested incompatibility of primary legislation of the United Kingdom Parliament, namely the 1861 Act, with one or more of the Convention rights scheduled to the HRA.

338. The distinction between absolute and qualified rights is fundamental to the operation of the Convention. The absolute rights reflect unconditional moral imperatives which are owed to individuals simply as human beings: not to kill them other than in certain specific situations, not to torture them, not to subject them to inhuman or degrading treatment, and not to hold them in slavery. Although the content of these rights is nuanced, and they might even be said to be subject, in substance, to certain qualifications, they are not in principle amenable to balancing against other interests. There is no scope for their being restricted by democratic policy choices. They are not issues on which the Convention accepts that there is

scope for democratic debate. The court’s task is not to assess the proportionality of

murder, torture or enslavement, but to secure that the right to be protected against
such treatment is respected.

339. There is therefore, in principle, no room for the European Court of Human Rights to defer to the judgement of national authorities on the question whether conduct is in breach of the substantive, negative, obligations imposed by an absolute provision such as article 3: the question falls outside the scope of the principle of subsidiarity. The threshold for finding a breach of article 3 is correspondingly high: the court has repeatedly emphasised that ill-treatment has to attain a minimum level of severity before it can be regarded as falling within the ambit of the article. The same high threshold applies when article 3 is applied by national courts. Thus, under article 3, there is in principle no scope for constitutional deference to the judgement of democratic institutions, but it is only where the stringent requirements of the article are satisfied that the courts will adopt such an uncompromising approach.

340. The qualified rights are essentially different. They belong to individuals as social beings, and are subject to such limitations as are justifiable in the society in

which they live. The Convention’s acceptance that they are subject to restrictions

that are “necessary in a democratic society” - not just in any democratic society, but

specifically in the particular society in question - opens the door to democratic policy choices. The Convention accepts that there is room for reasonable minds to differ as to the policy which should be adopted. The role of the court is to determine whether the restrictions imposed in a particular case are justifiable on one of the permissible grounds, generally by applying a test of proportionality.

341. The European Court of Human Rights can thus recognise the legitimacy of decision-making at the national level, when applying a qualified provision such as article 8, and acknowledge that a judgement as to the restrictions which can appropriately be imposed in a given society is in principle best made by the authorities of that country. National courts can equally respect the judgements made by the democratic institutions of their society, applying the principle of proportionality in a manner which reflects the constitutional principle of the separation of powers.

342. It follows that the extent, in practice, to which elements of social and ethical policy are taken out of the hands of national democratic processes and determined by judges depends on how stringently absolute provisions of the Convention, such as article 3, are applied by both the European and national courts, and on how much respect they pay to the judgement of national democratic institutions when applying a proportionality analysis to restrictions of qualified rights such as that recognised in article 8.

343. At the European level, increasing emphasis has been placed on the critical role of national legislatures in defining human rights protection within the scope of the qualified rights. Increasing attention has therefore been paid to the question whether a legislative measure has been based on considered debate, including consideration of the impact of the measure on the Convention right in question, and of the necessity of the interference: see, for example, Donald and Leach,

Parliaments and the European Court of Human Rights (2016), and Spano, “The

European Court of Human Rights: Subsidiarity, Process-Based Review and Rule of

Law” (2018) HRLR 1. Parliamentary processes are regarded as especially important

where the question involves the assessment of moral or ethical issues falling squarely within the scope of democratic debate, or where the legislative policy adopted reflects a historical tradition of giving legal effect to a particular conception of social or moral life.

344. At national level, it is equally important that the courts should respect the importance of political accountability for decisions on controversial questions of social and ethical policy. The Human Rights Act and the devolution statutes have altered the powers of the courts, but they have not altered the inherent limitations of court proceedings as a means of determining issues of social and ethical policy. Nor have they diminished the inappropriateness, and the dangers for the courts themselves, of highly contentious issues in social and ethical policy being determined by judges, who have neither any special insight into such questions nor any political accountability for their decisions.

Abortion law and Convention rights

345. In interpreting the Convention in cases concerned with abortion, the European Court of Human Rights has demonstrated its awareness of the sensitivity of this topic and the extent to which it is better suited to determination by national authorities. It has never interpreted the Convention as requiring contracting states to introduce laws permitting abortion, either generally or in relation to particular categories of pregnancy.

346. In its most recent consideration of the issue, in the case of A, B and C v Ireland (2010) 53 EHRR 13, the Grand Chamber rejected complaints by two Irish women that the prohibition on abortion in Ireland (a more restrictive prohibition than in Northern Ireland), by effectively compelling them to travel elsewhere if they wished to terminate their pregnancy, with similar consequences to those described in the present case, had violated their rights under articles 3 and 8 (the third applicant raised somewhat different issues relating to her specific situation). The court accepted that travelling abroad for an abortion was both psychologically and physically arduous for each of the applicants, and that it was also financially burdensome. Nevertheless, it pointed out that ill-treatment must attain a minimum level of severity if it was to fall within the scope of article 3, and concluded that the facts alleged did not disclose a level of severity falling within the scope of the article. The complaint under article 3 was found to be manifestly ill-founded.

347. In relation to article 8, it was argued on behalf of the first and second applicants, as in the present case, that it had not been shown that the restrictions were effective in achieving the aim pursued: the abortion rate for women in Ireland was similar to states where abortion was legal since Irish women chose to travel abroad for abortions in any event. Even if the restrictions were effective, the first and second applicants questioned how the Irish state could maintain the legitimacy of their aim given the opposite moral viewpoint espoused by human rights bodies worldwide. They also suggested that the current prohibition on abortion in Ireland no longer reflected the views of the Irish people, arguing that there was evidence of greater support for broader access to legal abortion. It was pointed out that the financial burden of travel impacted particularly on poor women and their families. It was also emphasised that women experienced the stigma and psychological burden of doing something abroad which was a serious criminal offence in their own country. The extent of the prohibition on abortion in Ireland also stood in stark contrast to the more flexible regimes for which there was a clear European and international consensus. Reliance was placed, in that regard, on a range of international materials, including material produced by CEDAW. There was in addition said to be a lack of assistance by doctors, due to the chilling effect of a lack of clear legal procedures combined with the risk of serious criminal and professional sanctions.

348. In response, the European Court of Human Rights referred to its previous case law finding that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life. It referred to its finding in Vo v France (2004) 40 EHRR 12 that it was neither desirable nor possible to answer the question of whether the unborn was a person for the purposes of article 2 of the Convention, so that it would be equally legitimate for a state to choose to consider the unborn to be such a person and to aim to protect that life. In

relation to the balancing exercise required by article 8, the court observed that “the

state authorities are, in principle, in a better position than the international judge to give an opinion, not only on the exact content of the requirements of morals in their

country, but also on the necessity of a restriction intended to meet them” (para 232).

It continued:

“There can be no doubt as to the acute sensitivity of the moral

and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish state in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under article

8 of the Convention.” (para 233)

349. This broad margin of appreciation was not decisively narrowed by the consensus among other contracting states towards allowing abortion on broader grounds than under Irish law (a consensus which, the court said, made it unnecessary to look further to international trends and views):

“Of central importance is the finding in the above cited Vo case,

referred to above, that the question of when the right to life

begins came within the states’ margin of appreciation because

there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably

interconnected, the margin of appreciation accorded to a state’s

protection of the unborn necessarily translates into a margin of appreciation for that state as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most contracting parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this

consensus cannot be a decisive factor”. (para 237)

350. The court noted that the state’s margin of appreciation was not unlimited. It

emphasised, however, that the law in Ireland was the product of considered
democratic debate:

“From the lengthy, complex and sensitive debate in Ireland as

regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well-being

reasons but allows women, in the first and second applicants’

position who wish to have an abortion for those reasons, the

option of lawfully travelling to another state to do so.” (para

239)

The court also placed some emphasis on the fact that the prohibition of abortion in Ireland was accompanied by measures designed to assist certain categories of women in obtaining access to abortion facilities elsewhere:

“On the one hand, the Thirteenth and Fourteenth Amendments

to the Constitution removed any legal impediment to adult women travelling abroad for an abortion and to obtaining information in Ireland in that respect. Legislative measures were then adopted to ensure the provision of information and counselling about, inter alia, the options available including abortions services abroad, and to ensure any necessary medical treatment before, and more particularly after, an abortion. The importance of the role of doctors in providing information on all options available, including abortion abroad, and their obligation to provide all appropriate medical care, notably post- abortion, is emphasised in CPA [Crisis Pregnancy Agency]

work and documents and in professional medical guidelines.”

(ibid)

351. In those circumstances, although the court accepted that the process of travelling abroad for an abortion was psychologically and physically arduous, especially for women in impoverished circumstances, and also accepted that it might be the case that the prohibition on abortion was to a large extent ineffective in protecting the unborn, in the sense that a substantial number of women took the option of travelling abroad for an abortion, nevertheless the first and second

applicants’ complaints under article 8 were rejected. “Having regard to the right to

lawfully travel abroad for an abortion with access to appropriate information and

medical care in Ireland”, the court did not consider that the prohibition in Ireland of

abortion for health and well-being reasons, based as it was on the profound moral views of the Irish people as to the nature of life and as to the consequent protection to be accorded to the right to life of the unborn, exceeded the margin of appreciation accorded to the Irish state. The prohibition consequently struck a fair balance

between the women’s right to respect for their private lives and the rights invoked

on behalf of the unborn.

1. The third applicant’s complaint under article 8, which succeeded, concerned

a different issue (the absence of a procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life of her pregnancy), and is of no relevance to the present case.

The present case

353. In the light of the European court’s relatively recent judgment in A, B and C, it appears to me to be impossible to hold that the legislation in force in Northern Ireland is incompatible with article 3. In that regard, I again agree with the reasoning of Lord Mance. As he states, even when one takes into account that the present case focuses on pregnancies where the foetus is abnormal or has been conceived as the result of a sexual offence, it is apparent that the great majority of Northern Irish women wishing to terminate their pregnancy in such circumstances are able to do so by travelling elsewhere. The consequences are similar to those with which A, B and C was concerned, and do not meet the threshold for a violation of article 3.

354. Some individual cases have been put forward in which it is said that the women in question were unable to travel abroad as a result of the failure of health professionals to provide them with appropriate assistance and advice, and endured harrowing experiences as a consequence. It may be that such cases, if established in individual applications, would be found to involve a violation of article 3. But, disturbing though those cases are, the possibility that there might be a violation of article 3 in an individual case cannot warrant a declaration that the legislation, as such, is incompatible with article 3. If a breach of article 3 were established in an individual case, the court might grant declaratory relief, but the terms of the relief would reflect the circumstances which had led to the violation. Whether it was appropriate to grant a declaration that the legislation itself was incompatible, because it could not be given effect in a manner which was compliant with article 3, would depend on a close examination of the facts of the case, and of the role which the legislation had played in bringing about the violation.

355. In relation to article 8, I agree with Lord Mance that no declaration of incompatibility should be made, but I have reached that conclusion for somewhat different reasons. I would emphasise at the outset a point which this court has made

on several occasions, namely that “an ab ante challenge to the validity of legislation

on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights”: Christian Institute v Lord Advocate [2017] HRLR 19, para 88.

356. As in relation to article 3, the judgment in A, B and C appears to me to provide valuable guidance. The practical effect of the law in Northern Ireland, as in Ireland, is to require women to travel elsewhere if they wish to terminate their pregnancy. The general prohibition on termination for reasons other than a danger to life, or a danger of serious injury to health, is accompanied by guidance to doctors and other professionals on the information and advice which should be provided to women who wish to obtain a termination (Department of Health, Social Services and Public

Safety, “Guidance for Health and Social Care Professionals on Termination of

Pregnancy in Northern Ireland”, March 2016). That guidance advises health

professionals that they can provide women who cannot lawfully obtain an abortion in Northern Ireland with information about abortion services lawfully available in other jurisdictions, and about their freedom to travel there. It also advises health professionals about their responsibility to provide aftercare, counselling and other support services to women who have had a termination of pregnancy carried out outside Northern Ireland.

357. In those circumstances, I am not persuaded that the issues arising under article 8 in relation to the law in Northern Ireland are in general materially different

from those considered in A, B and C, even if one confines one’s attention to women

undergoing a pregnancy where the foetus is abnormal or has been conceived as the result of a sexual offence. They are free to travel to England or Scotland, where they can have their pregnancy terminated free of charge in an NHS hospital, provided that the termination is lawful under the law in force there. They should be able to obtain advice about termination from health professionals in Northern Ireland, and they should receive whatever care they may require in Northern Ireland after the termination has been carried out.

358. Most of the arguments relied on by those who would hold the law in Northern Ireland to be incompatible with article 8 are the same as those rejected by the European court in A, B and C. Of course, to the extent that the law places restrictions on the availability of abortion, it treats the moral value of protecting the life of the

unborn as outweighing the woman’s personal autonomy and freedom to control her

own life. That is true of any restriction on abortion. Of course, the law applies even to those who do not share the ethical perspective which underpins it. That is the nature of law: it applies to everyone, whether they agree with it or not. It may be that the law is largely ineffective to protect the unborn, because the great majority of women who wish to have abortions do so anyway, travelling to England for that purpose. Nevertheless, a society cannot be bound under the Convention to permit behaviour which it considers morally repugnant, merely because a prohibition can be obviated. On the contrary, the fact that a prohibition imposed for moral reasons can be obviated may tend to support its proportionality, since it imposes less of a restriction in reality on those who do not share the moral values which underpin it.

359. As in relation to article 3, the court has been provided with accounts of individual cases which, if they were established in individual applications, would almost certainly demonstrate violations of article 8, due principally, it would appear, to shortcomings in the provision of advice and support by health care professionals. But the possibility that there might be violations of article 8 in some individual cases does not warrant a bald declaration that the legislation, as such, is incompatible with article 8.

360. The principal difference between this case and A, B and C is that it raises the question whether it is proportionate to treat the moral value of protecting the life of

the unborn as outweighing the woman’s personal autonomy in situations where the

foetus is abnormal or was conceived as the result of a sexual offence: an issue which arises in a particularly acute form in cases where the foetus suffers from a fatal abnormality. There is no doubt that such situations can result in emotional anguish for the women involved, and that there can be circumstances in which, if the woman is unable to obtain a termination of the pregnancy, its continuation may pose a serious risk to her health and well-being.

361. Nevertheless, the difficulty in the form of the present appeal is that it does not invite the court to investigate the facts of individual cases where Northern Irish women undergoing particular categories of pregnancy have been unable to obtain an abortion, and to decide whether they justify the conclusion that the legislation itself is incompatible with article 8. Instead, the court is invited, as an abstract exercise, to define categories of pregnancy in respect of which a termination must be legally available if the legislation is to be compatible with article 8. That approach requires the court to address a number of difficult issues: for example, whether to treat some categories of pregnancy differently from other pregnancies at all; whether, if so, to draw the line at foetuses with fatal abnormalities which will prevent their surviving until birth or for more than a short time after birth, or to include foetuses with serious but non-fatal abnormalities; whether to differentiate between healthy foetuses conceived as the result of sexual offences and other healthy foetuses; and whether, if so, to draw the line at foetuses conceived as the result of offences which were non-consensual, or to include those conceived as the result of consensual offences.

362. These are highly sensitive and contentious questions of moral judgement, on which views will vary from person to person, and from judge to judge, as is illustrated by the different views expressed in the present case. They are pre- eminently matters to be settled by democratically elected and accountable institutions, albeit, in the case of the devolved institutions, within limits which are set by the Convention rights as given effect in our domestic law.

363. A process of democratic consideration of these issues has begun in Northern Ireland and has not yet been completed, as a result of the breakdown of devolved government in January 2017. It is important that a review of these issues should be completed. It appears from the accounts of individual cases put forward in these proceedings that there is every reason to fear that violations of the Convention rights will occur, if the arrangements in place in Northern Ireland remain as they are. In those circumstances, these issues need to be discussed and determined in a democratic forum, which is where they pre-eminently belong.

364. In the meantime, the courts will have to deal with any individual cases which may come before them. But, in the present proceedings, there is no need for this court to pre-empt democratic debate on changes to the law or to the arrangements for the provision of health services, or, by determining the requirements of the Convention in advance of that debate, to take the matter out of the hands of democratically accountable institutions.

LADY BLACK:

The Commission’s competence to seek the relief claimed

365. I agree with Lord Mance that, for the reasons he gives, the Commission has no power to bring the present proceedings. From that it would follow that the questions referred by the Attorney General for Northern Ireland should be answered

in the negative and the Commission’s appeal dismissed.

366.     Despite this conclusion, I feel I should express my view as to the substance

of the Commission’s appeal, as other members of the court have done.

Article 3

1. I agree with Lord Mance’s view that, for the reasons that he sets out in paras

94 to 103 of his judgment, the Commission’s argument that the legislation in

Northern Ireland is incompatible with article 3 of the ECHR must be rejected.

Article 8: Generally

368. I also agree with what Lord Mance says about article 8 in the passage of his judgment commencing at para 104 and concluding at para 121, but I do not entirely share his view in relation to the compatibility of the legislation with article 8. He considers the law incompatible in cases where the pregnancy has resulted from rape or certain other sexual crimes, and in cases of fatal foetal abnormality, that is to say where the foetus cannot survive at all after birth or will die very shortly after delivery. I would only wish to express the view that the law is incompatible in cases of fatal foetal abnormality.

Article 8: Cases other than fatal foetal abnormality

369.     As to cases which do not concern fatal foetal abnormality, I find myself in

agreement with Lord Reed’s reasoning in relation to article 8. He has pointed out

the similarity between the arguments advanced unsuccessfully in A, B and C v Ireland, and those relied upon in the present case. Although it is important to note that A, B and C did not concern the particular categories of pregnancy with which we are concerned, it persuades me that, in relation to pregnancies where the foetus has a non-fatal abnormality or has been conceived as the result of a sexual offence, I must bring myself to accept two related propositions. First, notwithstanding the widespread consensus (in Europe and internationally) in favour of more flexible abortion regimes, it must be accepted that there may be room for different moral viewpoints. Secondly, it must be accepted that the balance between the protection of the life of the unborn child, the interests of society, and the rights of the pregnant woman may be struck in different ways. In these circumstances, and given the difficulty identified by Lord Reed as to where to draw the line in accommodating the categories of case with which we have been concerned, as well as the current lack of certainty about what moral views are presently held by the population of Northern Ireland, I do not feel that it would be appropriate at this stage to express a positive conclusion that the legislation itself is incompatible with article 8. In so saying, I also have in mind that, as Lord Mance says at para 92 of his judgment, other factors can play a part, in addition to the legislation itself, in producing adverse treatment of which complaint may be made. He points out that where one is able to examine the specific circumstances that have arisen, the cause of the impugned treatment may, in some cases, prove to have been not the applicable legislation itself, but rather the way that it was (mis)understood or (mal)administered. That is one of the reasons why an abstract challenge to legislation presents such a difficulty. In such circumstances, alleviating the hardship of women in the categories of case that we have been asked to consider, may involve a combination of amending the law and taking practical steps to ensure that proper information and support is available to the women concerned, countering what Lord Kerr has described (para 176) as the

“significant chilling effect” on women who wish to obtain an abortion and doctors

who might assist them. Given the diverse circumstances covered by the categories

upon which we have been asked to focus (as to which, see for example Lord Mance’s

discussion of the position in relation to sexual crimes, commencing at para 127 of
his judgment), the solutions require democratic debate.

370. However, Lord Reed has made observations about the worrying situation disclosed in the accounts placed before us, and about the need for the review that had been begun in Northern Ireland to be resumed and completed. I share his view about the importance of this and about the fact that there is every reason to fear that violations of the Convention rights of women in Northern Ireland will occur if arrangements there remain as they are.

Article 8: Fatal foetal abnormality

371. In relation to foetuses with fatal abnormalities, I would go further than Lord Reed does. I do not consider the present law in Northern Ireland to be compatible with article 8 of the ECHR in relation to this category of case. Where the unborn child cannot survive, in contrast to the other categories of pregnancy with which we are concerned, there is no life outside the womb to protect. In those circumstances, even if allowance is made for the intrinsic value of the life of the foetus, the moral and ethical views of society cannot, it seems to me, be sufficient to outweigh the intrusion upon the autonomy of the pregnant woman, and her suffering, if she is obliged to carry to term a pregnancy which she does not wish to continue. Furthermore, as Lady Hale points out, and as can be seen from the experiences of some of those whose circumstances were placed before the court, a problem such as this is often diagnosed comparatively late in the pregnancy. This is likely to make the process of termination more demanding for the woman than it would be at an earlier stage in the pregnancy, and to compound the problems that exist for any woman who has to travel abroad for the procedure, including by significantly restricting the time available for making arrangements to have the termination carried out in Great Britain so as to avoid it having to be carried out at an advanced stage of the pregnancy.

Foetus

has

fatal

58

23

abnormality and will not

survive birth

Foetus

has

serious

45

28

abnormality and may

not survive birth

Pregnancy due to rape or	54	24
incest
A woman has a serious	56	27
health condition and a doctor says she will die if she continues with the
pregnancy
A doctor says there is a	46	30
serious threat to the
woman’s physical or
mental health if she
continues	with	the
pregnancy