Abortion law in Northern Ireland Contents

5Responsibility under international human rights obligations

52.In relation to abortion in Northern Ireland, the Committee on the Elimination of Discrimination Against Women is among a number of UN treaty bodies which have made findings of human rights breaches. These bodies include the UN Human Rights Committee,70 the Committee on Economic, Social and Cultural Rights71 and the Committee on the Rights of the Child.72

Convention on the Elimination of all forms of Discrimination Against Women

53.The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) is a global treaty on women’s rights. It was adopted by the UN General Assembly in 1979 and has now been ratified by 189 out of 193 member states of the UN. The UK signed CEDAW in 1981 and ratified it in 1986. The CEDAW Convention is binding on the UK as a matter of International Law. The CEDAW Committee looks at how those binding rights are respected and applied in the domestic context. The UK has also signed up to the Optional Protocol which gives individual women and groups the right to complain directly to the body which monitors the treaty, the Committee on the Elimination of Discrimination Against Women, a body of 23 experts on women’s human rights.

54.A number of CEDAW Articles are relevant to abortion, in particular Article 12 which requires State parties to eliminate discrimination against women in health care, including in relation to family planning.73 General Recommendation 35 of the CEDAW Committee includes forced pregnancy and the criminalisation of abortion within the meaning of violence against women.74 Access to abortion is addressed by the Committee on the Elimination of Discrimination Against Women which has made findings in relation to abortion in Northern Ireland in its recent examinations of the UK.75

55.We have received evidence which states that the Convention does not mention abortion and there are therefore no compliance issues. Marion Woods of Life Northern Ireland said in her oral evidence; “How can we be outside the remit of the Convention? We are not. It never mentions abortion, only the Committee does, and they are unelected representatives and independent, none of which have come from the UK or Ireland.”76

56.In 2010, an application was made under the Optional Protocol to CEDAW by Alliance for Choice, Family Planning Association and Northern Ireland Women’s European Platform (NIWEP) alleging that the UK was in violation of women and girls’ rights under the Convention owing to the restrictive access to abortion in Northern Ireland. This resulted in an inquiry by the CEDAW Committee and a report published in March 2018. The CEDAW Committee found:

(a) Grave violations of rights under the Convention considering that its criminal law compels women in cases of severe foetal impairment, including FFA, and victims of rape or incest to carry pregnancies to full term, thereby subjecting them to severe physical and mental anguish, constituting gender-based violence against women; and

(b) Systematic violations of rights under the Convention considering that the UK deliberately criminalises abortion and pursues a highly restrictive policy on accessing abortion, thereby compelling women to: carry pregnancies to full term; travel outside NI to undergo legal abortion; or self-administer abortifacients.77

57.The CEDAW Committee made the following recommendations relating to the legal and institutional framework:

Repeal sections 58 and 59 of the Offences against the Person Act, 1861 so that no criminal charges can be brought against women and girls, qualified health care professionals and others; and
Adopt legislation to expand grounds to legalise abortion at least in the following cases: Threat to the pregnant woman’s physical or mental health without conditionality of “long-term or permanent” effects; rape and incest; and severe foetal impairment, including FFA, 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.78

58.The CEDAW Committee also recommended that the UK put a moratorium on the application of criminal laws and adopt evidence-based protocols for healthcare professionals, among a number of other recommendations on sexual and reproductive health rights and services.

59.The CEDAW Committee has recently published its Conclusions and Observations following its eighth periodic review of the UK’s compliance with the Convention, in which it; “urges the State party [the UK] to implement, without further delay, the recommendations contained in the Committee’s report following its inquiry under article 8 of the Optional Protocol to the Convention.”79

60.The Northern Ireland Office says in its written submission that, while the UK Government recognises that it remains responsible for compliance with its international obligations under international law, it is for the devolved administrations to ensure compliance in relation to devolved matters. It says:

This is enshrined in domestic law and the memorandum of understanding. The UK Government does not believe that the current situation in Northern Ireland should dislodge that principle, particularly in circumstances where the Government is working towards the restoration of devolved government in Northern Ireland. The UK Government will keep this position under review in light of its international and domestic obligations, and in light of any relevant emerging legal judgments, as appropriate.80

61.Legal experts discussed the status of the CEDAW Committee’s report in the oral evidence session on 27 February 2019. Roger Kiska of the Christian Legal Centre told us it was “fallacious” to suggest that nations that prohibited abortion would allow themselves to be bound by a UN Committee. He said, “The committee themselves are not lawyers. They are not judges. It is not a court. It is a periodic review. It is a non-binding document. The underpinning of this discussion is just misleading.”81

62.However, Caoilfhionn Gallagher QC argued that it was wrong to see CEDAW as being non-binding international law and to treat domestic law as entirely separate because they interact: “Its findings are not binding but it is, very importantly, taken into account by the European Court of Human Rights in Strasbourg and by our courts domestically. As a matter of domestic law, CEDAW is relevant when you are looking at [European] convention rights.”82

63.The UK Government says that it will provide a substantive response to the CEDAW Committee’s findings and recommendations once the Northern Ireland Assembly is re-established to authorise and approve the response.83

64.The UN Committee on the Elimination of Discrimination Against Women covered a wide range of issues in its report including law, access to services, education and sexual and reproductive rights. The UN Committee found that there were ‘grave’ violations in relation to cases of severe foetal impairment, including FFA, and rape or incest, and ‘systematic’ violations in the criminalisation of abortion and highly restrictive access which compels women to a) carry pregnancies to full term; b) travel outside of Northern Ireland to undergo legal abortions or c) self-administer with abortion pills.

65.The UK Government needs to set out a clear framework and timeline to address the breaches of women’s rights in Northern Ireland under the CEDAW Convention that have been identified by the UN Committee on the Elimination of Discrimination Against Women if there is no government in Northern Ireland to take this action.

European Convention on Human Rights

66.The European Convention on Human Rights is a human rights treaty among the members of the Council of Europe, including the UK. In 1998, the UK incorporated the Convention into domestic law in the Human Rights Act.

67.In June 2018, the UK Supreme Court ruled on a case brought by the Northern Ireland Human Rights Commission (NIHRC). This was a challenge to the Northern Ireland Department of Justice and the Attorney General for Northern Ireland that abortion law in Northern Ireland is incompatible with the Convention under Article 3 (the prohibition of torture and of inhuman or degrading treatment), Article 8 (the right of everyone to respect for their private and family life) and Article 14 (the prohibition of discrimination) in relation to cases of: (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. The case was dismissed on procedural grounds raised by the Attorney General for Northern Ireland on the basis that the NIHRC did not have standing to bring a case in its own name (without an actual or perceived victim).

68.The Supreme Court did not make a declaration of incompatibility given that the case was dismissed on procedural grounds. Nonetheless, the majority of the Supreme Court expressed their opinion on the substance and took the view that the current law is incompatible with the right to respect for private and family life provided for under Article 8 of the European Convention on Human Rights. Lord Kerr said that, by a majority of five to two: “The court has expressed the clear view that the law of Northern Ireland on abortion is incompatible with article 8 of the Convention in relation to cases of fatal foetal abnormality and by a majority of four to three that it is also incompatible with that article in cases of rape and incest.” He added that while this was not a binding decision, “it must nevertheless be worthy of close consideration” by those who decide the law. Lady Hale, President of the Supreme Court, described the current legal position as; “untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest’.84

69.Giving evidence about the implications of the Supreme Court judgment, Les Allamby, Chair of the Northern Ireland Human Rights Commission, told us that “the water is more muddy than it would have been if there had been a declaration of incompatibility”. He went on to say:

It is most unusual for the Supreme Court, having decided you do not have standing, to then offer their views. Those views are advisory in legal terms, in my view, but they are significantly authoritative. It is the Supreme Court.85

70.Giving evidence about what should happen now in the absence of the Northern Ireland Assembly, Mr Allamby said it was for the Secretary of State to deal with the breach of human rights. He said that the Secretary of State could issue guidance and that, whilst even a declaration of incompatibility would not compel her to act, generally speaking the UK Government abides by declarations of incompatibility, although it is still a matter for Parliament.86

71.On the other hand, Roger Kiska of the Christian Legal Centre, in line with many submissions we have received from members of the public and others, said that Article 8 “confers no right to abortion.”87

72.The UK Government set out its approach to the human rights breaches identified by the Supreme Court. Secretary of State for Northern Ireland, Karen Bradley, told us that her focus was on getting the Northern Ireland Assembly and Executive restored and that that was the most appropriate way to deal with the matter.88 When we asked the Secretary of State at what point would the Government consider that a continued absence of the Assembly and Executive required the UK Government to act to address human rights breaches against women and girls in Northern Ireland, she said, “if there was a ruling in the European courts, that would be binding. A declaration of incompatibility [in the Supreme Court] would be highly persuasive.”89

73.Penny Mordaunt, Minister for Women and Equalities told us:

You have just heard this morning that when things like that have happened, when you have had a declaration, the UK Government have acted. It is a good question as to why we need something like that to happen. We have evidence of women’s lives being put in danger. If you have a situation where a 12-year-old girl who has been raped has to be accompanied by the Northern Ireland police to Liverpool in order to gather DNA evidence, there is something wrong.90

Remedying the breach of human rights in cases of rape or incest

74.We have heard evidence about how the breaches of human rights identified by the Supreme Court can be remedied in practice, particularly in the situation where a woman or girl’s pregnancy was as a result of rape or incest. This issue arose during the debates around abortion in the Republic of Ireland where the Joint Oireachtas Committee on the Eighth Amendment to the Constitution considered the difficulty in proving that the pregnancy was as a result of rape and the need to avoid retraumatising victims by requiring them to report the offence, in a context in which sexual offences are significantly under-reported for a range of reasons.91 Ms Gallagher argued that the route taken by the Joint Oireachtas Committee is an appropriate one; “That is to recognise that it is instead more appropriate to deal with the issue by permitting termination of pregnancy without a restriction as to reason, even if the core of the reason for many of you may be focused on those hard cases.”92

75.Les Allamby of the Northern Ireland Human Rights Commission agreed that it would be extremely difficult to remedy the breach by permitting abortion where the pregnancy was as a result of a sexual crime, but not impossible and noted that 25 member states of the Council of Europe have legislated in some way for termination and have done it in different ways for sexual crimes. Mr Allamby went on to note the additional difficulty in Northern Ireland because section 5 of the Criminal Law Act 1967 requires crimes to be reported to the police. He pointed to the Attorney General’s human rights guidance for prosecutors on section 5 in relation to rape disclosures in the context of social security claims which says that “the public interest points away from prosecuting the victims of rape or those to whom victims make disclosures of rape.”93 Mr Allamby also pointed to the Gillen Review which recommended repealing section 5, other than in cases concerning children or vulnerable adults.94

76.In the Republic of Ireland, the new law on abortion permits abortion without restriction up to a period of 12 weeks, following which it is permitted in restricted circumstances. Les Allamby noted that, “There is nothing to stop Northern Ireland going beyond human rights requirements. For us, the question is that they are not meeting their human rights requirements at the moment.”95

77.The European Convention on Human Rights (ECHR) provides a right to privacy and family life under Article 8. This has been incorporated into domestic law in the Human Rights Act 1998 and the UK Supreme Court identified that there had been a breach of women’s Article 8 rights in relation to cases of fatal foetal abnormality, rape and incest. The Court stated that the Northern Ireland Human Rights Commission which had brought the case did not have standing so it did not make a declaration of incompatibility. Nevertheless, this is a strong statement by the highest court in the land that it has identified that the current prohibition of abortion in Northern Ireland breaches an individual’s ECHR human rights in these cases.

Northern Ireland Human Rights Commission

78.The Northern Ireland Human Rights Commission was established in the Northern Ireland Act 1998. The Commission advises the UK Government, the Northern Ireland Executive and Assembly and key agencies on legislation and compliance with human rights frameworks in Northern Ireland.

79.The Northern Ireland Human Rights Commission challenged the law on abortion in Northern Ireland in specific circumstances as a breach of human rights. When the UK Supreme Court considered the case, it dismissed the case on the basis that the Commission did not have standing in its own right to bring it. Lady Hale said in her judgment:

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.

80.The Northern Ireland Human Rights Commission told us that, prior to the Supreme Court ruling, the Commission believed that it had standing to take a case.96 NIHRC said that it uses its powers sparingly and generally would prefer to take forward a case involving specific individuals but:

the idea of asking a woman who has been a victim of a sex crime and is pregnant, or has a fatal foetal abnormality at maybe an advanced stage, to bring a case to the court, on top of everything else she is dealing with, is frankly not practical, which is why we decided to bring the case in our own name.97

81.Giving evidence about the Northern Ireland Human Rights Commission’s standing to take a case,98 the Secretary of State for Northern Ireland, Karen Bradley told us that; “We have now discovered there was an error in the explanatory memorandum in 1998 when the Northern Ireland Act was enacted.” The Secretary of State told us that the Government has committed to rectifying this; “We will rectify it at the earliest legislative opportunity. It does require primary legislation, unfortunately, but we will ensure that that is appropriately rectified because, like you, I do not want to have to be the case. I would much rather it was a case brought by a human rights commission.”99

82.It is a serious error that the Northern Ireland Human Rights Commission does not have legal standing to take human rights cases to court, without the need for a victim to take the case. The situation of a woman or girl who became pregnant as a result of rape or incest having to pursue a court case highlights precisely why it should not depend on an individual victim to take a case to court. This issue of the Northern Ireland Human Rights Commission’s standing needs rectifying urgently so that victims do not have to take a case.

83.The UK Government must rectify the error in the Northern Ireland Human Rights Commission’s standing as a matter of urgency. We welcome the Secretary of State for Northern Ireland’s commitment to rectifying this matter but the Government’s response to this report must set out the timeline for doing so within the next six months.

70 Concluding observations on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland, Human Rights Committee, August 2015

71 Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, Committee on Economic, Social and Cultural Rights, July 2016

72 Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, Committee on the Rights of the Child, June 2016

73 A number of CEDAW Articles are relevant to abortion eg Article 2 (discriminatory laws), Article 12 (discrimination in the field of health care), Article 16 (family planning and information).

74 General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, Committee on the Elimination of Discrimination Against Women, July 2017

75 For information on abortion worldwide see The Legal Status of Abortion Worldwide, Statista website, accessed April 2019

76 Q98

77 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, Committee on the Elimination of Discrimination Against Women, 2018

78 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, Committee on the Elimination of Discrimination Against Women, 2018

79 Concluding observations on the eight periodic report of United Kingdom of Great Britain and Northern Ireland, Committee on the Elimination of Discrimination Against Women, March, 2019

80 Northern Ireland Office (ANI0411)

81 Q410

82 Q415

83 Opening Statement to CEDAW Committee, February 2019

84 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), [2018] UKSC 27

91 Report of the Joint Committee on the Eighth Amendment of the Constitution, Houses of the Oireachtas, December 2017