Judicial Communications Office
16 December 2015
COURT DECLARES ABORTION LAW IN NORTHERN
IRELAND INCOMPATIBLE WITH THE UK’S
OBLIGATIONS UNDER THE HUMAN RIGHTS ACT 1998
Summary of Judgment
Mr Justice Horner, sitting today in the High Court in Belfast, made a declaration to the effect
that the abortion legislation in Northern Ireland is incompatible with the UK’s obligations
under the Human Rights Act 1998 in cases where women are pregnant and there is a fatal
foetal abnormality or where the pregnancy is the result of rape and/or incest.
In his judgment of 30 November 2015, Mr Justice Horner held that the abortion legislation in
Northern Ireland breached Article 8 of the European Convention on Human Rights by
failing to provide an exception to the prohibition of abortion in cases of a fatal foetal
abnormality (“FFA”) at any time during the pregnancy or where the pregnancy is the result
of sexual crime (up to the date when the foetus is capable of existing independently of the
mother) (“the two exceptional categories”). He asked the parties to make further
submissions on two issues which had not been raised during the hearing:


Whether it would be an abuse to prosecute in respect of the two exceptional
categories; and
Whether it would be possible to read down the legislation in a Convention compliant
way pursuant to section 3 of the Human Rights Act 1998 (“the 1998 Act”).
The judge clarified that it had never been suggested in his judgment that FFA is a medical
term but that it is a shorthand description to cover a cluster of conditions which render
survival outside the mother’s womb impossible. He further stated that “sexual crime” was
defined in the judgment as meaning either rape and/or incest and was not intended to
include other crimes of a sexual nature.
Abuse to Prosecution
Mr Justice Horner accepted that the issue of whether or not it would be an abuse to
prosecute in respect of the two exceptional categories did not directly arise in these
particular proceedings. He said he had expressed only what may be a possible conclusion
and that it will be for another court to decide the issue if and when it comes before it.
Interpretation of legislation
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Judicial Communications Office
Section 3(1) of the 1998 Act requires that the court should read and give effect to primary
and secondary legislation in a way which is compatible with Convention rights so far as it is
possible to do so. This obligation applies both to past and future legislation. The
jurisprudence states that the court is required to adopt any possible construction which is
compatible with Convention rights and this can include giving a meaning to a statutory
provision which it would not ordinarily give, to imply words into a section or to interpret
general words as being subject to implied exception. Only in the last resort should a court
conclude that a compatible construction is impossible.
Mr Justice Horner referred to case law which was said to leave no room for doubt on four
important points about the interpretative obligation of the courts:




The interpretative obligation under section 3 of the 1998 Act is a very strong and far
reaching one, and may require the court to depart from the legislative intention of
Parliament;
A Convention compliant interpretation is the primary remedial measure and a
declaration of incompatibility is an exceptional course;
The promoters of the Human Rights Bill told Parliament that it was envisaged that
the need for a declaration of incompatibility would rarely arise; and
There is a limit beyond which a Convention compliant interpretation is not possible,
for example if such an interpretation would be incompatible with the underlying
thrust of the legislation, or would not go with the grain of it, or would call for
legislative deliberation, or would change the substance of a provision completely, or
would remove its pith and substance, or would violate a cardinal principle of the
legislation.
Mr Justice Horner said there was near unanimity among counsel in this case that it would be
a step to far for the court to try and read the abortion legislation in a Convention compliant
way in respect of these two exceptional categories of pregnancy. He concluded that such a
view is correct and, accordingly, for the reasons he set out in his judgment of 30 November
and “as a matter of last resort”, he made a declaration of incompatibility.
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in
isolation. Nothing said in this summary adds to or amends the judgment. The full
judgment will be available on the Court Service website (www.courtsni.gov.uk).
ENDS
If you have any further enquiries about this or other court related matters please contact:
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Judicial Communications Office
Alison Houston
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JF
Telephone: 028 9072 5921
E-mail: Alison.Houston@courtsni.gov.uk
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