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Northern Ireland abortion laws not compatible with human rights, says High Court

Published 16/12/2015

The judge made his ruling at a packed Belfast High Court
The judge made his ruling at a packed Belfast High Court

Northern Ireland's strict abortion laws are incompatible with human rights legislation, a High Court judge has said.

The landmark declaration could pave the way for a relaxation of the prohibition on women accessing terminations in cases of rape, incest or where there is a diagnosis of fatal foetal abnormality.

While Stormont's leaders are not under any obligation to change the law following Mr Justice Horner's findings, he has increased the pressure on them to act.

Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland where abortions are illegal except where the life or mental health of the mother is in danger. Anyone who performs an illegal termination could be jailed for life.

Last month, the judge ruled that the region's near blanket ban on abortion contravened human rights legislation after a successful judicial review by the Northern Ireland Human Rights Commission (NIHRC). On Wednesday, Justice Horner outlined the legal ramifications of November's judgment on abortion legislation in the region.

He had two options - to "read down" current legislation to include fatal foetal abnormality and pregnancies arising from a sexual crime, or to make a "declaration of incompatibility".

The judge told a packed hearing at Belfast High Court: "There is near unanimity among the parties in this judicial review, and that includes the (Northern Ireland Human Rights) Commission, that for this court to try and read the impugned provisions in a (human rights) Convention-compliant way would be a step too far.

"Having given due consideration to all submissions and the arguments raised therein, I conclude that such a view is correct.

"Accordingly, as indicated in my judgment, and for the reasons set out in that judgment and as a matter of last resort, I make a declaration of incompatibility."

The judge's declaration, which can be subject to appealed, does not immediately lift the ban but puts the onus on the Stormont Assembly to legislate.

In November's lengthy judgment, which was delivered over two hours, he said the failure to provide exceptions to the law in certain limited circumstances breached a woman's rights.

In cases of fatal foetal abnormality (FFA), the judge concluded that the mother's inability to access an abortion was a "gross interference with her personal autonomy" and where a sexual crime had occurred the judge said a disproportionate burden was placed on victims.

The NIHRC brought the challenge against Stormont's Department of Justice (DoJ) which, following a public consultation, had recommended a law change in circumstances of fatal foetal abnormality.

The Commission argued that the DoJ had not gone far enough and the law was incompatible with human rights legislation regarding inhuman and degrading treatment, privacy and discrimination.

Legal argument from both sides was heard over three days in June.

Pro-life and pro-choice campaigners were in court on Wednesday for the declaration.

Among them was high-profile advocate of a law change Sarah Ewart. She made headlines across Northern Ireland when going public over having to travel to England to have an abortion after her unborn child was diagnosed with a fatal abnormality.

Director of campaign group Precious Life, Bernie Smyth, a well-known opponent of a law change, was also in court, as was former Stormont Assembly member and ex-director of the Marie Stopes clinic in Belfast Dawn Purvis.

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