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Stormont's Department of Justice committed no unlawful act in its handling of Northern Ireland's abortion regime, court hears

By Alan Erwin

Published 21/06/2016

The Department of Justice committed no unlawful act in its handling of Northern Ireland's abortion regime, the Court of Appeal has heard.
The Department of Justice committed no unlawful act in its handling of Northern Ireland's abortion regime, the Court of Appeal has heard.

The Department of Justice committed no unlawful act in its handling of Northern Ireland's abortion regime, the Court of Appeal has heard.

Senior judges were also told a landmark ruling that the near-blanket ban on terminations breaches the European Convention on Human Rights went further than Strasbourg jurisprudence.

Counsel for the Department argued the verdict took "a wrong turn" in holding the foetus has no Article 2 right to life.

During the second day of a new court battle over abortion laws in Northern Ireland, judges queried whether new guidelines provided sufficient clarification.

Unlike other parts of the UK, terminations are currently only legal within the region to protect the woman's life or if there is a risk of serious damage to her well-being.

Last year the High Court ruled that the failure to provide exceptions to the near-blanket ban for cases of fatal foetal abnormalities (FFAs) and victims of  rape or incest breaches entitlements to respect for private and family life.

Mr Justice Horner also made a formal declaration that the legislation is incompatible with the UK's obligations under the Human Rights Act.

His decision is now being appealed by both the Department and Attorney General John Larkin QC.

The NI Human Rights Commission, who issued the original proceedings, is also mounting a cross-appeal in a bid to have the regime declared inhuman, degrading and discriminatory.

Its legal action began after the Department launched a public consultation on amending the criminal law.

That process concluded with a recommendation for new legislation dealing with cases of FFA.

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

It was also seeking to have terminations legalised in cases of rape or serious foetal malformation.

During the original legal battle arguments were also made on behalf of the Catholic Bishops in Northern Ireland, and Sarah Ewart - a woman from Northern Ireland who went to England for an abortion after learning her unborn baby had no chance of survival.

In court today Tony McGleenan QC, for the Department, said: "The view of the Department is that they had committed no public law wrong and engaged in no unlawful act that would warrant the intrusive remedies sought by the applicant."

He contended that there is no imperative under the European Convention to modify the 1861 Offences Against the Person Act governing abortion law.

Pressed on a finding that the foetus has no Article 2 right, Mr McGleenan claimed: "The judge took a wrong turn."

He added: "As of yet the (European Court of Human Rights) has not made a determination on whether or not Article 2 protection extends to the unborn child.

"That's an issue that the Strasbourg court has deliberately not resolved."

The appeal continues.

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