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

The Northern Ireland Human Rights Commission may institute human-rights proceedings only where there is or would be an identifiable victim of an unlawful act. It cannot bring an abstract challenge to primary legislation merely because the legislation may be incompatible with Convention rights.

The Commission therefore lacked standing to challenge Northern Ireland’s abortion legislation, and the court had no jurisdiction to grant a declaration of incompatibility. A majority nevertheless considered that prohibiting abortion in cases of rape, incest and fatal foetal abnormality was incompatible with article 8. Those conclusions did not result in relief because the standing requirement was unsatisfied.

The Northern Ireland Human Rights Commission sought judicial review of sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945. It alleged incompatibility with articles 3, 8 and 14 of the Convention where pregnancy involved fatal or serious foetal abnormality, rape or incest.

The High Court held that the Commission had standing and found incompatibility with article 8 in cases of fatal foetal abnormality, rape and incest. The Court of Appeal, [2017] NICA 42, agreed that the Commission had standing but found no incompatibility.

The principal issues before the Supreme Court were whether the Commission could bring an abstract challenge without identifying an unlawful act and victim, and whether the legislation was incompatible with the Convention.

1. Disposition. By a majority of four to three, the Commission lacked power to bring the proceedings. Its appeal was dismissed and the questions referred by the Attorney General were answered in the negative. The court consequently had no jurisdiction to make a declaration of incompatibility: per Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones.
2. Standing. Sections 69 and 71 of the Northern Ireland Act 1998 permit the Commission to institute or intervene in human-rights proceedings only where there is or would be a victim of an unlawful act. Enactment of primary legislation, or a failure to repeal or amend it, is not an unlawful act under sections 6 and 7 of the Human Rights Act 1998. Section 69(5)(b) therefore does not confer an unrestricted power to bring an abstract challenge to primary legislation. Lord Kerr, Lord Wilson and Lady Hale dissented on standing.
3. Article 8. Although no relief could be granted, Lord Mance, Lord Kerr, Lord Wilson and Lady Hale concluded that the prohibition was intrinsically disproportionate in cases of fatal foetal abnormality, rape and incest. Lady Black agreed only as to fatal foetal abnormality. The law gave insufficient weight to women’s autonomy and imposed grave suffering while largely outsourcing abortion through travel elsewhere. The protection of unborn life could not justify the prohibition in those categories. Lord Reed and Lord Lloyd-Jones considered that an abstract challenge could not establish incompatibility and that democratic consideration should not be pre-empted.
4. Article 3. Lord Kerr and Lord Wilson considered the legislation incompatible with article 3 in cases of fatal foetal abnormality, rape and incest because it exposed vulnerable women to a real risk of inhuman or degrading treatment. Lord Mance, Lord Reed, Lady Black and Lord Lloyd-Jones rejected general incompatibility: article 3 required an intense assessment of individual circumstances and its high severity threshold could not be resolved through an abstract challenge. Lady Hale considered that article 3 would be violated in some cases but found it unnecessary to decide whether the state’s positive obligation rendered the legislation itself incompatible.
5. Serious non-fatal foetal abnormality. The court did not support incompatibility in this category. The equal worth of disabled people, the risk of discriminatory stereotyping and the difficulty of defining serious abnormality weighed against such a conclusion.

1. United Kingdom Supreme Court: The Commission’s appeal was dismissed. By a four-to-three majority, it lacked standing and the court had no jurisdiction to grant a declaration of incompatibility.
2. Court of Appeal in Northern Ireland: [2017] NICA 42. The court held that the Commission had standing but concluded that the legislation was not incompatible with the Convention.
3. High Court of Justice in Northern Ireland: Horner J held that the Commission had standing and that the legislation was incompatible with article 8 in cases of fatal foetal abnormality, rape and incest, but not serious non-fatal foetal abnormality. The article 3 claim was dismissed.