Alban Maginness: Why supporters of the rights of the unborn can take comfort in cryptic Supreme Court judgment
It is not the end of the fight to stop barbaric practice of abortion being legalised here, says Alban Maginness
Ordinary citizens could be forgiven for scratching their heads and wondering what on Earth their Lordships in the Supreme Court in London had decided in relation to the abortion case brought by our Human Rights Commission. In their decision, the majority of the Supreme Court dismissed the Human Rights Commission case, because, they said, the commission had no standing to bring such an abstract challenge to court.
The commission had decided to proceed to court without producing a victim of our so-called "inhuman law". They embarked on this legal enterprise with taxpayers' money, totaling almost a quarter-of-a-million pounds. What the commission asserts, rather audaciously, is that its position has been vindicated despite the fact that its case was dismissed by their Lordships.
The commission asserts that the Supreme Court decided that the current law was incompatible with human rights law, in particular Article 8 of the European Convention. However, there was no binding decision in this respect and no declaration of incompatibility.
Rather, what the court said by majority opinion was that, if they had an opportunity, they would notionally have said that Northern Ireland law was incompatible with Article 8 of the convention in prohibiting abortion on the basis of fatal foetal abnormality and sexual crime. They gave an opinion, not a binding decision.
And, of course, if there was another case, this time with a "victim", and the specific individual circumstances of that "victim", the court could change its notional opinion.
This is a new commission and it would be interesting to know if this commission endorsed the views of the majority decision of the previous commission to proceed with this appeal to the Supreme Court.
Remember, the commission's case in the Northern Ireland Court of Appeal was thrown out on the basis that Article 8 was not engaged and that the European Convention gave a wide discretion to the Assembly on abortion law. The Northern Ireland Court of Appeal did not conclude that there was any breach of human rights law here.
According to law, the commission is supposed to be representative of the community. It is, therefore, strange - given the deep political and religious divisions on abortion within our society - that the commission chose to focus so much time and energy on the dubious project of extending abortion into our law.
It would be interesting to know, for example, whether the new commission members were selected on the basis of whether they were or were not in support of abortion.
The notional opinion advanced by the Supreme Court on Article 8 (right to respect for private and family life) is an unprecedented and radical departure from the position of the European Court of Human Rights, that has consistently said in its judgments that Article 8 is not engaged in abortion cases.
Article 8 of the convention cannot be used, or interpreted, as conferring a right to access abortion. Perhaps the best way of determining the issue legally is for the matter to go to the European Court in Strasbourg for a definitive judgment.
In their other opinion, on serious foetal abnormality, the Supreme Court unanimously rejected the view of the commission that serious foetal abnormality should constitute a valid ground for an abortion consistent with human rights law. The court's opinion was that a disabled child should be treated as having equal worth in human terms as a non-disabled child.
The commission has from the outset of these proceedings adopted an extreme view on serious foetal abnormality and has rigorously sought, through its various legal proceedings, to have this category established for legal abortion in Northern Ireland. But this was rejected by the High Court and the Court of Appeal in their respective judgments.
It is truly extraordinary that, despite these judicial rebuffs, the commission doggedly persisted in pursuing this extreme view to the Supreme Court. This position is clearly outside the "hard cases" argument around fatal foetal abnormality and sexual crime.
This position is at odds with the UN Convention on the Rights of Persons with Disabilities (part of our domestic law), which says that you should not discriminate against disabled people.
Which raises the question: why has the commission not fought for the rights of disabled unborn babies under the convention, instead of pursuing an openly anti-disability policy?
The commission should justify its position and show a bit of transparency in its decision-making. It is a public body and should be accountable for its actions.
The result in this case was, indeed, confusing and is by no means conclusive.
There is sufficient in the substance of this judgment for pro-life advocates to take heart and fight on.
This is certainly not the end of the struggle to prevent the inhuman, cruel and violent act of abortion becoming law here.