The Attorney General is considering an appeal against a High Court ruling that Northern Ireland’s abortion laws are not compliant with human rights.
John Larkin said it would be “inappropriate” for him to comment at this time, but some commentators have questioned whether the judge’s decision will lead to a change in legislation.
The challenge was brought by the NI Human Rights Commission, which wants access to legal terminations in cases of rape, incest or fatal foetal abnormality.
Judge Mr Justice Mark Horner told Belfast High Court: “In the circumstances, given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of citizens of Northern Ireland to have their Convention rights protected by the courts, I conclude that the Article Eight rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions.”
Joshua Rozenberg, the former BBC legal correspondent, said judges in the UK “have no power to overturn primary legislation” they regard as contrary to the human rights convention.
“Instead, they have two options under the Human Rights Act 1998,” he wrote on the fullfact.org website.
“Section 3 of the act requires judges to read legislation in a way that is compatible with convention rights ‘so far as it is possible to do so’. This is known as ‘reading down’ legislation. Section 4 says that if it’s not possible to read down legislation then the court may make a declaration of incompatibility. That doesn’t change the law—though it allows for fast-track reform if ministers agree.”
Yesterday, Health Minister Simon Hamilton said new proposed abortion guidelines for healthcare staff have been circulated to his colleagues in the Stormont Executive.
DUP MLA and former health minister Edwin Poots has questioned the judge’s assertion that abortion is a human rights issue, and that he fully expects the ruling to be appealed.
“We have a High Court judge in Northern Ireland making a different interpretation than has previously been made in the European courts where they have always held the line that abortion wasn’t a human right,” he said.