A complicated relationship: Northern Ireland, abortion and the European Convention

Last November, the Northern Irish courts ruled that the countries near blanket ban on abortion was in violation of Article 8 of the European Convention on Human Rights (ECHR). Northern Ireland’s Justice Minister David Ford and Attorney General John Larkin QC are both challenging this landmark Northern Ireland High Court verdict. The case is now set to be heard by the Court of Appeal at a hearing in three weeks time. The case raises a number of questions about the history of Northern Ireland’s abortion laws and the extent to which the ECHR provides a right to abortion.

Northern Ireland possesses markedly different abortion laws from Great Britain. In England, Wales and Scotland abortion is permitted in a wide number of circumstances up until 24 weeks of pregnancy. In Northern Ireland, abortion is only permitted in circumstances where the life of a mother is directly under threat or in cases in which there would be lasting, long-term negative effects on the pregnant women’s health by continuing with the pregnancy.

In 2014, there were 16 abortions in Northern Ireland, or around 0.03 abortions per 1,000 resident women aged 15-44 years. In comparison, in 2014-15, there were 190,092 abortions in England and Wales, or 15.9 abortions per 1,000 resident women aged 15-44 years.

History

There are a number of historical reasons for the difference between the nations of the United Kingdom. First, Great Britain’s 1967 Abortion Act was not extended to Northern Ireland. In 1967, the vast majority of Northern Ireland’s legislation was determined by the Parliament of Northern Ireland (not the same as the the current current devolved legislature, the Northern Ireland Assembly). The only powers retained by Westminster were those concerning the succession to the Crown, foreign policy, defence, honours, citizenship, and some central taxes and postal services. Therefore, in 1967, abortion legislation was a matter for the Northern Irish Parliament not Westminster. In contrast, neither Scotland or Wales had formed any devolved legislature.

A second reason, recently revealed by the thirty year rule, whereby public documents are not published until 30 years after their creation, is that UK Ministers, at the time of the 1967 Abortion Act, believed that medical practitioners in Northern Ireland would refuse to perform abortions. Therefore even if the Parliament of Northern Ireland had attempted to implement a similar law, it is possible that the law would have proved difficult unworkable in practise.  

hirdly, and perhaps most importantly, Northern Ireland’s unique religiosity explains its divergence on abortion from the rest of the UK. Currently, 41% of Northern Irish people identify as Roman Catholic, 19% as Presbyterian and 14% as Anglican. In comparison, the United Kingdom has a much smaller proportion of Catholics and Presbyterians and a higher proportion of non-believers and Anglicans.

Traditionally, the Catholics and Presbyterians churches have been some of the strongest voices against abortion. In contrast, the Anglican church has tended to be less strident in its opposition. Northern Irish people are not only likely to follow religions that are vociferously against abortion, they are also more likely to be regularly practising a religion. For instance, a BBC survey found that 44% of  Northern Irish people regularly attend church, compared to 18% for Scotland, 14% for England and 12% for Wales. These unique religious demographics mean that Northern Irish politicians have consistently opposed abortion reform.

Abortion and the ECHR  

The European Court of Human RIghts (ECtHR) has historically been hesitant to find violations of the ECHR in deeply contested moral issues such as abortion.

A landmark Strasbourg case was A, B and C v Ireland. In the case, three anonymous women who had been forced to travel to the United Kingdom to access abortion services brought a case against the Republic of Ireland to the ECtHR. The women argued that Ireland’s abortion ban was in violation of Articles 2, 3, 8 and 13. Of these complaints, legal commentators believed that only Article 8 had any possibility of succeeding. In judgment, Strasbourg found that “Article 8 cannot... be interpreted as conferring a right to abortion". The Court also dismissed all other complaints. However, the Court did find that the Republic of Ireland violated Article 8 because it provided insufficient advice to one of the women who was unclear whether she could access abortion services when she believed that her pregnancy was life-threatening.

In contrast, the United Kingdom’s courts have interpreted Article 8 more widely in regard to abortion. It was in this context that the Northern Irish courts ruled in November 2015 that the current Northern Irish abortion laws were in violation of Article 8. The case was brought by the Northern Ireland Human Rights Commission. The Commission argued that Northern Ireland’s abortions laws violated Article 8 because it did not allow abortion in cases where the pregnancy was a result of rape or incest or where there was a foetal abnormality. The High Court of Justice in Northern Ireland found that Northern Irish abortion laws did breach Article 8 in cases where a pregnancy was a result of rape or incest and when the foetus had a fatal abnormality. It did not find that Article 8 was violated when a fetus had a non-fatal abnormality. The Court therefore declared a notice of incompatibility.

What next?

In response to the Judgment, both the Northern Ireland Justice Minister David Ford and Northern Ireland Attorney General John Larkin QC launched appeals. The case will now be heard by the Court of Appeal on June 20, 2016. The case is expected to last four days. If the Court of Appeal upholds the High Court’s ruling then the case could then progress to Strasbourg. If Strasbourg also finds that Northern Ireland’s abortion laws to be a violation of Article 8 then the implications will be sweeping. In Northern Ireland, abortion laws would have to be changed as to allow it in cases of incest, rape and fatal foetal abnormalities, not just where the life of a mother is directly under threat or in cases in which there would be lasting, long-term negative effects on the pregnant women’s health by continuing with the pregnancy. Such a judgement would not just affect Northern Ireland, but also the Republic of Ireland and other ECHR signatories with similar abortion laws.

James Dobson is a researcher at Bright Blue