In re Northern Ireland Human Rights Commission’s Application for Judicial Review

This appeal raised two linked issues: (a) whether the Northern Ireland Human Rights Commission (NIHRC) had statutory competence/standing under the Northern Ireland Act 1998 (in particular ss 69–71) to bring an abstract challenge to United Kingdom primary legislation; and (b) whether Northern Ireland criminal law as embodied in sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945 was compatible with articles 3 and 8 of the European Convention on Human Rights (ECHR), as given domestic effect by the Human Rights Act 1998 (notably ss 3 and 4).

The Court was divided. By a majority the Supreme Court concluded that the NIHRC did not have competence to institute the abstract judicial-review challenge it brought: sections 69(5)(b) read with the limitations in section 71 indicate that the Commission may institute or intervene in human rights proceedings only in relation to an identified or identifiable unlawful act (within ss 6–7 HRA) and where there are or would be victims of that unlawful act; Parliament did not intend to give the Commission a free‑standing actio popularis to challenge UK primary legislation generally. Because of that lack of standing the Court by the same majority held that it had no jurisdiction to make a formal declaration of incompatibility.

Separately, and largely obiter, several Justices analysed the substantive Convention questions. A majority of Justices (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) would have concluded that the present criminal prohibition was incompatible with article 8 insofar as it prohibited abortion in cases of rape, incest and fatal foetal abnormality; Lord Kerr and Lord Wilson would also have found incompatibility with article 3 in those areas. Other Justices disagreed on those substantive conclusions. The Court accordingly produced multiple judgments explaining both the procedural (standing) and substantive reasoning.

This was an application by the Northern Ireland Human Rights Commission for judicial review and declarations of incompatibility under the Human Rights Act 1998. The Commission sought declarations that sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945 were incompatible with articles 3, 8 and 14 of the ECHR so far as they governed access to termination of pregnancy for pregnancies involving serious or fatal foetal abnormality or those resulting from rape or incest. The Attorney General for Northern Ireland challenged the Commission’s standing; the Department of Justice and the Attorney General opposed the substantive case.

Procedural posture: the challenge reached the Supreme Court on appeal from the Northern Ireland Court of Appeal ([2017] NICA 42). The Attorney General also referred devolution questions under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998.

Nature of the relief sought: (i) declarations under s 4 HRA that the named statutory provisions were incompatible with Convention rights; (ii) declarations that, notwithstanding those provisions, women in Northern Ireland may lawfully access termination in certain defined circumstances; and (iii) associated declarations.

Issues framed by the Court:

• Standing/competence: whether the NIHRC has power under ss 69(5)(b) and related provisions of the Northern Ireland Act 1998 to institute abstract human‑rights proceedings challenging UK primary legislation, or whether that power is limited to proceedings concerned with an unlawful act (within ss 6–7 HRA) and identifiable victims.
• Substantive ECHR compatibility: whether the Northern Ireland criminal prohibitions are compatible with article 8 (right to respect for private and family life) and/or article 3 (prohibition of torture and inhuman or degrading treatment) in respect of (a) fatal foetal abnormality, (b) serious foetal abnormality, (c) pregnancy resulting from rape, and (d) pregnancy resulting from incest.
• Appropriate remedy if incompatibility established: whether incompatibility could be cured by s 3 HRA or whether a declaration under s 4 was required, and whether a court should make such a declaration in the light of constitutional and democratic considerations.

The Court’s reasoning on standing: a majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd‑Jones) analysed the terms and legislative history of ss 69–71 of the Northern Ireland Act 1998 (including the 2007 amendments). They concluded Parliament intended the NIHRC's power to institute or intervene in "human rights proceedings" to be confined to proceedings that relate to an unlawful act within the meaning of ss 6–7 HRA and where there are or would be one or more victims of that unlawful act; Parliament did not confer a general power to bring abstract incompatibility challenges to UK primary legislation (an actio popularis). That interpretation was supported by the scheme of the HRA and the devolution statutes and by the 2007 amendments which tailored the NIHRC’s competence.

Obiter substantive reasoning: several Justices examined the Convention issues in depth. Key factual and expert material (for example, evidence of foetal‑medicine diagnosis from Professor Dornan and the distressing personal accounts of affected women) was considered. The judgments analysed relevant precedent (R v Bourne; Family Planning Association of Northern Ireland v Minister for Health; Strasbourg jurisprudence such as A, B and C v Ireland, Vo v France, RR v Poland) and international reports (CEDAW, CRPD). Opinions diverged. Lady Hale, Lord Mance, Lord Kerr and Lord Wilson would have found the law incompatible with article 8 in relation to rape, incest and fatal foetal abnormality; Lord Kerr and Lord Wilson would have found article 3 engaged in some such cases. Lord Mance and others emphasised the difference between fatal and serious foetal abnormality and the central role of democratic decision‑making where article 8 (a qualified right) is at issue.

Remedy and outcome: the Court’s majority held the NIHRC lacked standing; accordingly the court had no jurisdiction to make a formal declaration of incompatibility despite the substantive conclusions some Justices would have reached. The judgments called for urgent democratic reconsideration and legislative reform.

By a majority the Supreme Court held that the Northern Ireland Human Rights Commission did not have statutory competence (standing) to bring an abstract challenge to United Kingdom primary legislation under s 69(5)(b) read with s 71 of the Northern Ireland Act 1998, and therefore the Court had no jurisdiction to make the formal declarations of incompatibility sought. A number of Justices, however, set out obiter conclusions on the substantive ECHR issues: several (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) would have concluded that the existing Northern Ireland criminal law (ss 58–59 OAPA 1861 and s 25 Criminal Justice (NI) Act 1945) was incompatible with article 8 ECHR insofar as it prohibited abortion in cases of rape, incest and fatal foetal abnormality; Lord Kerr and Lord Wilson would also have found incompatibility with article 3 in some such cases. The majority did not make a declaration because of the lack of Commission standing; the judgments urged legislative and administrative reconsideration.

On appeal from the Court of Appeal in Northern Ireland [2017] NICA 42. Devolution questions under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 were referred; Supreme Court judgment reported as [2018] UKSC 27.