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Ewart, Re Application fro Judicial Review
Factual and Procedural Background
This opinion concerns a judicial review application brought by the Plaintiff challenging the law on abortion in Northern Ireland, specifically the provisions of sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945. The Plaintiff is at heightened risk of a fatal foetal abnormality (FFA) and contends that the current legislation preventing termination of pregnancy in such cases breaches her rights under Article 8 of the European Convention on Human Rights (ECHR).
The background includes a previous Supreme Court decision which found the existing abortion law incompatible with Article 8 ECHR in cases of fatal foetal abnormality, but dismissed the challenge on procedural grounds related to standing. The Plaintiff seeks declarations of incompatibility and contends that the Departments of Justice and Health failed to amend the legislation accordingly.
Evidence includes the Plaintiff’s affidavit describing her experience of a pregnancy affected by anencephaly, a fatal foetal abnormality, and the necessity to travel to England for termination. The Respondents filed affidavits detailing the legislative and political history of abortion law reform efforts in Northern Ireland, including the establishment and report of a Working Group on fatal foetal abnormality, and subsequent legislative developments including the Northern Ireland (Executive Formation etc) Act 2019.
Legal Issues Presented
- Whether the Plaintiff has standing to bring a judicial review challenge against the abortion legislation in Northern Ireland given she has not been subject to an unlawful act by a public authority.
- Whether sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act are incompatible with the Plaintiff’s rights under Article 8 of the ECHR in relation to termination of pregnancy on grounds of fatal foetal abnormality.
- Whether a declaration of incompatibility should be granted pursuant to section 4 of the Human Rights Act 1998.
- Whether the Departments of Justice and Health unlawfully failed to take steps to amend the legislation to ensure compliance with Article 8 ECHR.
Arguments of the Parties
Plaintiff's Arguments
- The current abortion legislation in Northern Ireland violates her rights under Article 8 ECHR due to the prohibition on termination for fatal foetal abnormality.
- She has standing to bring the claim as she is at risk of being directly affected by the law and has already been impacted through having to travel abroad for termination.
- The Departments of Justice and Health have failed in their duty to amend the law, constituting an unlawful act under section 6(1) of the Human Rights Act 1998.
Respondents' Arguments
- The Plaintiff does not claim to have suffered an unlawful act by a public authority and therefore lacks standing under the Human Rights Act scheme.
- The Departments are not law-making bodies and cannot amend primary legislation, which is the responsibility of the Northern Ireland Assembly.
- The legislative and political processes relating to abortion law reform have been ongoing, with extensive consultation, but no legislative change has been enacted due to political circumstances.
- The Supreme Court's decision on incompatibility was obiter and does not bind this court to grant relief.
- There is a potential conflict between the UN Convention on the Rights of Persons with Disabilities and the claim under Article 8 ECHR, which may require referral to the Court of Justice of the European Union, though this was not pursued by the Supreme Court.
Attorney General's Arguments
- The Plaintiff is not a victim within the meaning of the Convention and thus lacks standing.
- The Departments of Justice and Health cannot be liable for failing to amend primary legislation.
- There is a conflict between EU law (UNCRPD) and the Plaintiff's claim under Article 8 ECHR.
- It is inappropriate for courts to determine controversial social and ethical policy issues that require political accountability.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Bourne (1939) 1 KB 687 | Definition of lawful abortion circumstances related to risk to mother's life or serious injury. | Referenced as the foundational legal standard for lawful abortion in Northern Ireland. |
| A, B and C v Ireland (Strasbourg Court) | Margin of appreciation in abortion law; recognition of women's autonomy rights in cases of rape, incest, and foetal abnormality. | Used to contrast Northern Ireland’s lack of evidence supporting current restrictions and support for the Plaintiff's position. |
| Ghaidon v Godin-Mendoza [2004] UKHL 30 | Section 3 Human Rights Act interpretation obligation. | Confirmed that relevant provisions cannot be read compatibly with the Convention. |
| Wilson v First County Trust (No2) [2004] 1 AC 816 | Section 3 and 4 HRA challenges can be brought irrespective of unlawful acts by public authorities. | Supports the Plaintiff’s route for challenge under section 4 without proving unlawful act. |
| Steinfeld v Secretary of State for Education [2017] 3 WLR 1237 | Declaration of incompatibility granted to parties directly affected by legislation. | Used to illustrate that individuals with direct interest can bring section 4 challenges. |
| Rusbridger v Attorney General [2004] 1 AC 357 | Distinction between academic challenges and substantive human rights claims. | Applied to differentiate Plaintiff’s claim from abstract or actio popularis challenges. |
| Norris v Ireland (1989) 13 EHRR 186 | Victim status requires risk of being directly affected by legislation. | Supports the Plaintiff’s standing as a potential victim under Article 34 ECHR. |
| Ramadan v Malta (2016) ECHR 76136/12 | Affirmed victim status where claimant risks direct effect of legislation. | Supports Plaintiff’s standing based on risk of future impact. |
| Sejdic v Bosnia Herzegovina (2009) 28 BHRC 201 | Clarifies victim status requires direct effect or modification of conduct due to legislation. | Used to support Plaintiff’s standing as a member of a class at risk of being directly affected. |
| R (Nicklinson) v Ministry of Justice [2014] UKSC 38 | Issue-specific determination of institutional competence and justiciability. | Referenced regarding the legislative competence and political context in Northern Ireland. |
| A v Secretary of State for the Home Department [2005] 2 AC 68 | Courts may issue declarations of incompatibility without usurping Parliament’s role. | Supports the court's power to issue declarations while respecting legislative supremacy. |
Court's Reasoning and Analysis
The court began by considering the standing issue, noting that the Plaintiff does not allege an unlawful act by a public authority but challenges the compatibility of primary legislation under section 4 of the Human Rights Act. The court relied on Supreme Court authority confirming that victimhood is not required for section 4 challenges and that individuals directly affected or at risk of being affected by legislation may bring such claims.
The Plaintiff’s personal evidence, including medical affidavits, demonstrated that she had been directly affected by the law, having to travel abroad for a termination due to fatal foetal abnormality, and that she remains at increased risk of future pregnancies with such abnormalities. The court found this sufficient to establish standing as a potential victim under Article 34 ECHR.
The court accepted the Supreme Court’s substantive finding that the current law is incompatible with Article 8 ECHR in cases of fatal foetal abnormality and declined to revisit that conclusion, viewing it as persuasive and not obiter.
Regarding the claim against the Departments for failure to amend the law, the court found that they are not law-making bodies and cannot be held liable for failure to change primary legislation, which is the Assembly’s competence. Furthermore, section 6(6) of the Human Rights Act excludes failure to enact legislation from unlawful acts.
The court acknowledged ongoing political and legislative developments, including the 2019 Act which provides for repeal of the relevant criminal provisions and mandates regulatory reform if the Assembly is not restored. The court reserved final determination of relief pending further submissions on these developments.
The court rejected the Attorney General’s argument regarding conflict with the UN Convention on the Rights of Persons with Disabilities, noting that this issue had been litigated previously and did not require referral to the Court of Justice of the EU in this case.
Holding and Implications
The court held that the Plaintiff has standing to bring a challenge under section 4 of the Human Rights Act 1998 as a potential victim directly affected by the abortion legislation in Northern Ireland.
The court accepted the Supreme Court’s determination that the current abortion law is incompatible with Article 8 ECHR in cases of fatal foetal abnormality and indicated a willingness to grant a declaration of incompatibility accordingly.
The court refused to grant relief against the Departments of Justice and Health for failure to amend legislation, as they lack legislative authority and such failure does not constitute an unlawful act under the Human Rights Act.
Given recent legislative developments, including the Northern Ireland (Executive Formation etc) Act 2019, the court allowed the parties to make further submissions before finalizing relief.
No new precedent was established; the decision primarily applies the Supreme Court’s reasoning and confirms the procedural viability of the Plaintiff’s claim under section 4 of the Human Rights Act.
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