In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)

Facts

The Northern Ireland Human Rights Commission, a body corporate created by section 68 of the Northern Ireland Act 1998, commenced judicial review proceedings on 11 December 2014 against the Department of Justice and the Attorney General for Northern Ireland. Abortion in Northern Ireland is governed by sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945, which, as explained in R v Bourne, permit termination only where it is done to preserve the life of the mother, extending to cases where continuation of the pregnancy would cause her serious long-term or permanent injury of body or mind. By its Order 53 statement the Commission sought a declaration under section 4 of the Human Rights Act 1998 that those provisions are incompatible with articles 3, 8 and 14 of the Convention so far as they deny termination where there is serious malformation of the foetus or the pregnancy results from rape or incest. Evidence was filed of the experiences of women including Ashleigh Topley, Sarah Ewart and Denise Phelan. Horner J held that the Commission had standing and that the law was incompatible with article 8 in cases of fatal foetal abnormality, rape and incest, but not serious malformation, rejecting the article 3 case. The Court of Appeal in Northern Ireland upheld standing but found no incompatibility. Both sides appealed, and the Attorney General for Northern Ireland referred devolution questions on the Commission's competence.