The UK Supreme Court has dismissed the appeal seeking to establish that Northern Ireland's anti-abortion law infringes the European Convention on Human Rights – while indicating that the law does in fact do so in certain cases.
By a majority of four judges to three, the court ruled that the Northern Ireland Human Rights Commission (NIHRC), which brought the case, had no standing to seek a ruling, and that the court therefore did not have jurisdiction to make a declaration of incompatibility in this case.
However a similar majority did consider that the current law in Northern Ireland was disproportionate and incompatible with article 8 of the Convention insofar as that law prohibited abortion in cases of (a) fatal foetal abnormality, but not disability (Lady Black additionally supported this view), (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.
The proceedings were brought in the name of NIHRC, rather than the name of particular alleged victims of a breach of human rights. Examples of particular individuals however were relied on by NIHRC during the proceedings. The case succeeded befre the Northern Ireland High Court, but that decision was reversed by the Court of Appeal, both as to standing and as to compatibility with the Convention.
Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd-Jones agreed) considered that NIHRC did not have standing as the proceedings were not instituted by identifying any unlawful act or any potential victim of it. Dissenting, Lady Hale, Lord Kerr and Lord Wilson concluded that NIHRC had a separate power to challenge the compatibility of legislation under ss 3 and 4 of the Human Rights Act irrespective of whether there had been any unlawful act by a public authority.
However, a different majority (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) stated their view that the current law in Northern Ireland on abortion is disproportionate and incompatible with article 8 insofar as it prohibits abortion in the three specific cases mentioned. They started from the position that the current law was an interference with the right of pregnant women and girls to respect for their private lives, guaranteed by article 8(1), and then took the view that the Northern Ireland abortion law was not justified under article 8(2), as a blanket ban was disproportionate.
The minority judges on this issue were not convinced that the three situations were, as abstract categories, materially different from those explored in the case of A, B and C v Ireland (2011) 53 EHRR 13.