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David Ford has no power to change Northern Ireland's abortion laws, court told

By Alan Erwin

Published 16/06/2015

David Ford
David Ford

Justice Minister David Ford has no power to unilaterally change Northern Ireland's abortion laws, the High Court heard today.

A judge was told the Human Rights Commission's challenge to the current near-blanket ban is based on a misconception.

Counsel for the Minister argued that any proposed changes to the law on termination would be so controversial and cross-cutting that complete Stormont Executive approval would be required.

Tony McGleenan QC said: "The Commission have brought this case before the court based on a demand they would know he cannot accede to."  

Judicial review proceedings are being taken in a bid to have abortions legalised in cases of rape, incest or serious foetal malformation.

Unlike other parts of the UK, terminations are currently only legal in Northern Ireland to protect the woman's life or if there is a risk of permanent and serious damage to her mental or physical health.

Public consultation by the Department of Justice on amending the criminal law has concluded with a recommendation for new legislation dealing with cases of fatal foetal abnormality.

But with no proposed changes covering pregnancies resulting from sexual crime, the Commission contends that the consultation does not go far enough.

It claims the situation is incompatible with the European Convention on Human Rights.

Traumatised women and girls being forced to travel to England and Wales for abortions are victims of inhuman and degrading treatment, according to the Commission's case.

Rights to privacy and freedom from discrimination are also allegedly being violated.

Part of the Commission's case is that it would be wrong to wait for Stormont to make uncertain changes to the law.

But Mr McGleenan insisted: "There's a strong presumption in favour of leaving these complex matters to the legislature."

He contended that the Commission wanted to "tear up" a constitutional process and go directly to the courts in a bid to achieve its goal.

The barrister said the applicant's function was to provide advice on human rights issues to both the Secretary of State and the Northern Ireland Assembly.

He claimed, however, that it was not empowered to seek a declaration of incompatibility with primary legislation.

Part of the case centres on a debate over the need to establish victim status for the challenge.

Mr Justice Horner pointed out that women and girls subjected to rape or incest were unlikely to put themselves forward as victims due to the publicity.

Turning to cases of lethal foetal abnormality, the judge noted that Northern Ireland woman Sarah Ewart - who went to England for an abortion after learning her unborn baby had no chance of survival - has featured.

Mr McGleenan contended, however, that she was a case study rather than having victim status in the proceedings.

Dealing with Mr Ford's role, he claimed there had been a failure to recognise the "constitutional subtleties" that apply.

"The Minister of Justice is bound, like everyone else, to apply the terms of primary legislation; it's not in his gift to simply change it at the drop of a hat," the barrister submitted.

"The suggestion he can himself amend the law without reference to anyone else is misconceived - he simply doesn't have the power to do that."

That was why he carried out public consultation and prepared a paper for the Executive, the court heard.

Mr McGleenan stressed how, under the terms of the Northern Ireland Act, any significant, controversial and cross-departmental issues have to go before the full Stormont cabinet.

Changing the law on terminations would fall into that category, it was contended.

"The Commission, themselves part of the Northern Ireland Act constitutional furniture, are asking the Minister to act in a manner that is contrary to the very same Act," the barrister said.

"The complaint here is the Minister should have changed the law unilaterally. I say he can't do that."

Northern Ireland Attorney General John Larkin QC argued that without victim status the Commission's case "doesn't get off the ground".

Backing claims that Mr Ford had done all he could, he insisted it was for the Assembly rather than the Minister to legislate on devolved matters.

According to the Attorney General abortion laws must be brought to the Executive Committee because of the impact on both the Department of Justice and Department of Health.

"The Justice Minister has done precisely that; more than that he cannot do," Mr Larkin told the court.

"The suggestion that he can legislate is, with respect to the applicant, simply absurd."

The Attorney General became involved in the case after a notice of devolution was issued to his office.

He urged the judge not to deal with the Commission's request for a declaration of incompatibility if it was held to have no legal standing to mount a case.

"The Commission hasn't extended it's institutional wing around someone who is, or would be a victim," he contended.

On that basis, he submitted: "The Commission simply doesn't get off the ground."

Questioning the body's powers under the Northern Ireland Act, Mr Larkin claimed: "It simply cannot be right that the Commission have been given, without clear and express statutory authority, some sort of roving commission to explore the statute book of yesteryear."

The hearing continues.

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