The president of the UK’s highest court has said that she has “little doubt” that Northern Ireland’s abortion law inflicts “inhuman or degrading” treatment on some women.
Lady Hale, the first woman to have been appointed to the top role, set out her view in a detailed legal opinion about the state of Northern Ireland’s abortion laws this morning.
She gave her view alongside six other top judges, who were split on exactly what the Province’s law on terminations means.
In short, a majority gave the opinion that the law does breach Article 8 of the European Convention on Human Rights (which deals with “the right to respect for private and family life”).
A minority also felt that it breached Article 3 of the European Convention on Human Rights (which says that “no-one shall be subjected to torture or to inhuman or degrading treatment or punishment”).
However, a majority of the judges also said that the body which had brought the case before the court – The Northern Ireland Human Rights Commission – did not have the authority to do so.
On this technicality, they indicated that the court is therefore unable to give an official judgement on the matter.
But even though the judges formally rejected the appeal before them, the legal opinions accompanying that rejection have spurred pro-choice campaigners to say that the Westminster government must act to effectively overrule devolution in Northern Ireland, and impose reform direct from London.
Setting out her views on the matter, Lady Hale indicated that she has considered the public mood in reaching her opinion.
She said: “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...
“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.”
She went on to state that the state is subjecting Northern Irish women to an “agonising dilemma” by making her face “the risk of prosecution... 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”
She added: “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’.
The three situations in question which the judges considered are fatal foetal abnormialities, pregnancy as a result of rape, and pregnancy as a result of incest.
She also appeared to go against a judgement handed down last summer by the Court of Appeal in Belfast.
At that time, a trio of judges were asked to rule on abortion, but found that “the court should not intervene and that it is a matter for the Assembly to decide”.
Setting out that judgement, Lord Justice Gillen (who is now in charge of a review of how to reform the justice system’s approach to sex cases) had
said: “The imposition of personal opinions of professional judges in matters of this kind lacks constitutional legitimacy. Courts should not make decisions freighted with the individual attitudes of the judiciary.”
This morning, Lady Hale said that “this is not a matter on which the democratic legislature enjoys a unique competence”.
She added: “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.”
HOW DID THE OPINIONS BREAK DOWN?
Four of the judges (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) said the current law in Northern Ireland “is disproportionate and incompatible” with Article 8 of the European Convention on Human Rights (which deals with “the right to respect for private and family life”) in all three of the circumstances the court was considering – namely fatal foetal abnormalities, pregnancy as a result of rape, and pregnancy as a result of incest.
Another judge (Lady Black) agreed that this was the case in relation to fatal foetal abnormalities, but that it is not possible to reach a conclusion in cases of pregnancy as a result of rape and pregnancy as a result of incest.
Only two judges (Lord Reed and Lord Lloyd-Jones) considered that it is not possible to conclude that the current law is disproportionate or incompatible with Article 8.
In addition, four judges (Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones) concluded that the current law is not incompatible with Article 3 of the European Convention on Human Rights (which says that “no-one shall be subjected to torture or to inhuman or degrading treatment or punishment”).
Two judges (Lord Kerr and Lord Wilson) said that it is, whilst Lady Hale expressed “sympathy” with Lord Kerr’s view, but said it was unnecessary to reach a conclusion on the question, having already issued her views on Article 8.
However, a majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones) also said that the Northern Ireland Human Rights Commission “does not have standing to bring these proceedings”.
The remaining three judges disagreed. But since they were outnumbered, the court said it “has no jurisdiction” to make a formal ruling on the case.
Although the decision of the court appears highly-complex, Lady Hale also suggested that the law on abortion in Northern Ireland is no more confusing than other legal positions.
She said “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”.