Abortion case judge blasts Stormont's 'paralysis'
Published 20/02/2013 | 11:30
A judge has rapped the Department of Health for delaying the handing over of documents in a legal wrangle over abortion.
Lord Justice Coghlin said Stormont could be seen as "a paralysed government that... simply cannot bring itself to discharge its duties".
His comments came as the Department of Health won an appeal against an order to release all relevant documents.
The Court of Appeal ruled the material should instead be inspected first by the judge due to hear the judicial review challenge this month. The Family Planning Association (FPA) has issued proceedings over the department's continued non-publication of guidelines on abortion.
Appearing on behalf of the department and minister Edwin Poots yesterday, Attorney General John Larkin QC claimed there was nothing in the documents that would assist the FPA's case. But he told the three-judge Court of Appeal panel he was happy for the court to study the material.
It was noted that departmental guidance has been awaited since a ruling from 2004.
Lord Justice Coghlin, sitting with Lord Chief Justice Morgan and Lord Justice Girvan, said: "There comes a stage in any government activity when delay becomes much more than simply... the Government going ahead with its work and it becomes a matter of real concern to the governed.
"In this case it seems to me the danger is in the department taking a view 'no, you can't see these documents' despite the fact it has taken so long to consider what we should do. It can be interpreted by the governed not so much the diligent work of government (but) as a paralysed government that because of its cultural and religious divisions simply cannot bring itself to discharge its duties."
According to the Attorney General the FPA has been premature in mounting a challenge to emerging public policy.
Lord Justice Coghlin told him: "Nobody is denying for a minute that it's a finely balanced judgment. But the longer time goes on the less trust the governed may have in the government."
Following the court's ruling the judge in the judicial review hearing will now decide the merits of the material sought.
Lord Chief Justice Morgan confirmed: "He should inspect the documents with a view to determining whether after such inspection the documents should be provided on the basis of the legal test."
Abortion is illegal in Northern Ireland, except in limited circumstances where the mother's life or mental well-being are considered at risk. In 2009 the Department of Health published a document which, for the first time, provided guidance to health professionals in Northern Ireland on terminations. But later that year the High Court ruled it did not properly cover counselling and conscientious objection issues. A judge held that guidelines were misleading and should be withdrawn for reconsideration. Since then fresh public consultation has been undertaken.