SPUC Pro-Life Ltd, Application for Judicial Review

Factual and Procedural Background

The case concerns a judicial review application brought by the Appellant challenging the validity and lawfulness of the Abortion (Northern Ireland) Regulations 2021 ("the 2021 Regulations") and related directions made pursuant to the Northern Ireland (Executive Formation etc) Act 2019 ("the 2019 Act"). The background includes the Supreme Court decision that restrictions on abortion in Northern Ireland violated Article 8 of the European Convention on Human Rights. Following this, the Westminster Parliament legislated the 2019 Act to allow for the legalization of abortion in Northern Ireland and imposed duties on the Secretary of State to provide abortion services. The 2020 Regulations initially legalized abortion in specified circumstances, while the 2021 and 2022 Regulations addressed implementation issues.

The Appellant, a pro-life organization, contended that the 2021 Regulations were ultra vires on multiple grounds including that they exceeded the powers granted by the 2019 Act, conflicted with the Northern Ireland Act 1998, and breached international obligations under the Ireland/Northern Ireland Protocol and the UN Convention on the Rights of Persons with Disabilities ("UNCRPD"). The challenge focused strictly on constitutional and legal validity rather than ethical or policy content.

The case proceeded with leave granted for judicial review, with interventions by human rights and equality commissions and a private individual with lived experience. The High Court dismissed the challenge, and the Appellant appealed to the Court of Appeal.

Legal Issues Presented

1. Whether the Secretary of State acted within the powers conferred by the 2019 Act in making the 2021 Regulations, particularly with respect to the requirement that the regulations change the law of Northern Ireland as mandated by section 9(4) of the 2019 Act.
2. Whether the powers under section 9(4) and 9(9) of the 2019 Act are limited by the legislative competence of the Northern Ireland Assembly under the Northern Ireland Act 1998, and if the 2021 Regulations improperly extend beyond that competence.
3. Whether the 2021 Regulations breach Article 2 of the Ireland/Northern Ireland Protocol by failing to comply with the UNCRPD, specifically regarding abortion on grounds of severe fetal impairment and disability discrimination.
4. Whether there was procedural unfairness in the failure to consult specifically on the 2021 Regulations, relying instead on consultation for the 2020 Regulations.

Arguments of the Parties

Appellant's Arguments

• The 2021 Regulations are ultra vires as they do not explicitly change the law of Northern Ireland as required by section 9(4) of the 2019 Act.
• The powers under the 2019 Act do not authorize the Secretary of State to amend or bypass the Northern Ireland Act 1998 or to exercise powers beyond those of the Northern Ireland Assembly, thus the 2021 Regulations exceed legislative competence.
• The 2021 Regulations breach Article 2 of the Ireland/Northern Ireland Protocol by facilitating abortion on grounds of disability, contrary to the UNCRPD and general principles of EU law prohibiting discrimination.
• The Secretary of State acted with procedural unfairness by not consulting on the 2021 Regulations independently, improperly relying on the consultation for the 2020 Regulations.
• A late amendment sought to challenge Regulation 7(1)(b) of the 2020 Regulations as perpetuating stereotypes towards persons with disabilities, but this was opposed as out of time.

Respondents' Arguments

• The 2021 Regulations form part of a legislative scheme that changes the law as required by the 2019 Act.
• Section 9(9) of the 2019 Act is not a limiting provision preventing the Secretary of State from exercising powers beyond those of the Assembly; the Secretary of State’s powers are properly conferred and do not amend or bypass the Northern Ireland Act 1998.
• The UNCRPD is an unincorporated international treaty that does not form part of domestic law and does not prohibit abortion on grounds of disability; therefore, no breach of the Ireland/Northern Ireland Protocol arises.
• There was substantial consultation on the 2020 Regulations, which sufficiently addressed the issues, and no legitimate expectation existed for a separate consultation on the 2021 Regulations.
• The late amendment challenging the 2020 Regulations was out of time and lacked supporting evidence for an extension of time.

Intervenors' Arguments

• The Northern Ireland Human Rights Commission and Equality Commission supported the position that the UNCRPD does not form part of UK domestic law and that the Secretary of State’s powers are properly exercised within the legislative framework.
• They emphasized the importance of compliance with human rights standards and noted gaps in the Appellant’s arguments concerning the scope and applicability of rights invoked under the Ireland/Northern Ireland Protocol.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27	Determination that prior abortion restrictions violated Article 8 ECHR	Provided legal backdrop affirming the need to reform abortion law in Northern Ireland
Re Ewart’s Application [2019] NIQB 88	Validation of Supreme Court decision regarding fatal fetal abnormality	Supported the legal context for the introduction of abortion regulations
R (SC) v Secretary of State for Work and Pensions [2021] 3 WLR 428	Limits of judicial review and deference to Parliament’s legislative process	Clarified the court’s role in reviewing parliamentary legislation
Battersby v Barts Health NHS Trust (UKSC 2022/0115)	International treaties not incorporated into domestic law absent legislation	Supported rejection of UNCRPD as directly enforceable domestic law
Re Laverty’s Application [2015] NICA 75	Requirements for extension of time in judicial review applications	Informed refusal to extend time for late amendment
R (on the application of Crowter and another) v Secretary of State for Health & Social Care [2022] EWCA Civ 1559	Interpretation of CEDAW recommendations on abortion and disability	Discussed in relation to the interpretation of negative stereotypes and abortion on grounds of fetal impairment

Court's Reasoning and Analysis

The Court began by situating the case within the statutory framework created by the 2019 Act, which imposed a duty on the Secretary of State to implement recommendations of the CEDAW report, including changes to abortion law. The Court emphasized that the duty to "ensure" implementation was broad and conferred discretion on the Secretary of State as to the method of compliance, not limited by the restoration of the Northern Ireland Assembly and Executive.

Regarding the first ground, the Court found that the 2021 Regulations, as part of a suite of regulations including the 2020 Regulations, did effect changes to the law as required by section 9(4) of the 2019 Act. The absence of an express sanction for non-compliance in the 2021 Regulations was not fatal, as compliance could be enforced through judicial review and the subsequent 2022 Regulations addressed this point.

On the second ground, the Court agreed with the Appellant that section 9(9) of the 2019 Act limits the Secretary of State’s powers to those within the legislative competence of the Northern Ireland Assembly. However, the Court concluded that the 2021 Regulations did not exceed this competence. The provisions implementing international obligations were not considered matters of international relations beyond Assembly competence, and no amendment or bypass of the Northern Ireland Act 1998 occurred.

The third ground, concerning Article 2 of the Ireland/Northern Ireland Protocol and the UNCRPD, was rejected. The Court held that the UNCRPD is an unincorporated international treaty that does not form part of domestic law and that abortion is not an EU competence. Consequently, no breach of Article 2 was established, and the Appellant failed to demonstrate the required elements of a diminution of rights under the Protocol.

Regarding the fourth ground, the Court found that the extensive consultation on the 2020 Regulations, with over 21,000 responses, sufficed for procedural fairness. There was no legitimate expectation for separate consultation on the 2021 Regulations, and the argument of procedural unfairness was dismissed.

The Court also addressed a late application to amend the claim to challenge Regulation 7(1)(b) of the 2020 Regulations. This was refused due to being significantly out of time without a proper application for extension or evidential basis. The Court noted the difficulty in reconciling the Secretary of State’s duty to implement the CEDAW recommendations with the avoidance of perpetuating negative stereotypes but declined to consider this issue further due to procedural constraints.

Holding and Implications

The Court DISMISSED the appeal and AFFIRMED the decision of the High Court.

The direct effect of this decision is that the 2021 Regulations and associated directions are lawful and valid exercises of the Secretary of State’s powers under the 2019 Act. The Court confirmed the broad discretion of the Secretary of State to implement abortion law changes in Northern Ireland within constitutional limits. No breach of the Ireland/Northern Ireland Protocol or procedural unfairness was found. The Court did not establish any new legal precedent beyond affirming the existing statutory framework and interpreting the limits of legislative competence and international treaty applicability in this context.