affiliated to the International Association of Constitutional Law
All eyes were on the UK Supreme Court (UKSC) last week as it gave judgment in In Re Northern Ireland Human Rights Commission’s Application for Judicial Review  UKSC 27, the case challenging the European Convention on Human Rights (ECHR) compatibility of Northern Ireland’s abortion legislation. Such a case is always bound to be headline-grabbing and controversial. But even more heat than usual was generated by this case. For starters, it followed swiftly after the Republic of Ireland’s referendum vote to repeal the Eighth Amendment of its Constitution, which acknowledges the equal right to life of the unborn child. That led to public and political pressure for change on the other side of the border too. But the Northern Ireland Assembly has been suspended since January 2017 and Westminster legislating in this area in its absence – particularly if prompted by the UKSC – would provoke controversy. The Conservative Government’s Confidence and Supply Agreement with the traditionally pro-life Democratic Unionist Party (DUP) further complicates the possibility of reform on this side of the Irish Sea. The outcome of a challenge to the compatibility of the Northern Ireland legislation was therefore keenly anticipated by many. In the event, a Court of seven declined (by a majority) to make the declaration of incompatibility due to a lack of standing. Given the Court’s conclusions, however, the judgment may effectively be a declaration in all but name.
Legal Background and Case Summary
In Northern Ireland it is a criminal offence to receive or perform an abortion by virtue of the Offences against the Person Act 1861 ss. 58-59 and the Criminal Justice Act (Northern Ireland) 1945 s. 25(1). Only limited exceptions exist, namely if the abortion is carried out in good faith to preserve the life of the woman, or where continuing the pregnancy would make her a ‘physical or mental wreck’ (R v Bourne  1 K.B. 687, 694).
The Northern Ireland Human Rights Commission (the NIHRC, or the Commission) challenged the compatibility of the Northern Ireland legislation with ECHR Articles 3, 8 and 14 on the basis that it does not provide for abortions in the case of serious foetal abnormality, or where the pregnancy was a result of rape or incest, and sought a declaration of incompatibility under the Human Rights Act 1998 (HRA) s. 4(2).
In the High Court of Northern Ireland, Horner J. had found that the NIHRC had standing and made the declaration under Article 8 in the case of fatal (but not serious) foetal abnormality or where the pregnancy resulted from rape or incest. No incompatibility with Articles 3 or 14 was found ( NIQB 102). On appeal, the Northern Ireland Court of Appeal agreed on the standing point but quashed the declaration ( NICA 42). The UKSC (by majority; Lady Hale and Lords Kerr and Wilson dissenting) found that the NIHRC did not have standing, but a majority (Lady Hale, Lords Mance, Kerr, Wilson and Lady Black) would have made a declaration of incompatibility with Article 8 on the same terms as the first instance judge (Lady Black would only have made the declaration in respect of fatal foetal abnormality). A minority (Lords Kerr and Wilson) would also have made a declaration of incompatibility with Article 3.
This post focusses on what the mainstream media are widely reporting as the ‘technicality’ (the denial of standing to the Commission) which resulted in no declaration of incompatibility being made. It does not consider the merits of the legislation.
The Standing ‘Technicality’
Lady Hale described the issue of the NIHRC’s standing as an ‘arid question’ because there was ‘no doubt’ that it could easily have identified past or potential victims of the law . Perhaps somewhat surprisingly, then, Lord Mance (with whom Lords Reed and Lloyd-Jones and Lady Black agreed on this point) found that the NIHRC did not have standing because it had not identified any unlawful act with any victim or potential victim.
The Northern Ireland Act 1998 (NIA) s. 69(5)(b) gives the NIHRC the power to bring human rights proceedings. An amendment made by the Justice and Security (Northern Ireland) Act 2007 filled a lacuna in the original enactment to allow the NIHRC to bring a case without itself being a victim (NIA s. 71(2A)), but NIA s. 71(2B)(c) states that actual or potential victims of an ‘unlawful act’ should be identified.
HRA ss. 6-7 allow challenges to the unlawful acts of public authorities by ‘victims’ of those acts. If, as was the case here, there is no unlawful act of a public authority, HRA s. 6 is not engaged. Under HRA ss. 3-4, there is no need for an unlawful act or a victim. There is no unlawful act where a challenge is to the compatibility of primary legislation (leaving aside the fact that the Criminal Justice Act (Northern Ireland) 1945 is not primary legislation, but an Act of the previous Parliament of Northern Ireland). The wording of HRA s. 6(1) and (2) makes clear that acts under incompatible legislation are not unlawful, and HRA s. 6(6) states that it is not an ‘unlawful act’ to fail to change the law. As Lord Kerr says, the words ‘unlawful act’ in the NIA s. 71(2B)(c) cannot be interpreted literally or narrowly . In this case, there would be victims. But there is no unlawful act .
I have previously written about the expository justice function of declarations of incompatibility (‘Facing facts: judicial approaches to section 4 of the Human Rights Act 1998’ (2017) 133 L.Q.R. 631). As I argued there, and as Lord Kerr argued here, HRA ss. 6-7 establish a completely ‘distinct’ regime from HRA ss. 3-4 . HRA ss. 6-7 concern victims of the unlawful acts of public authorities, while ss. 3-4 concern the legislation itself rather than any unlawful act . It may be the case that an applicant raises a claim under HRA s. 6 and the court ends up turning to s. 3, and then possibly s. 4, when it transpires that the legislation is at fault, rather than the public authority. But certain applicants, in particular those who seek to challenge the actions of a private party, proceed straight to the ss. 3-4 regime (e.g. Ghaidan v Godin-Mendoza  UKHL 30,  2 A.C. 557). HRA ss. 3-4 are not always, as Lord Mance argued, a ‘last resort’ . Often, they are an applicant’s only choice if she wishes to bring a case.
The minority would thus have found that the Commission had standing because the wording of NIA s. 71(2B)(c) did not apply to actions concerning HRA ss. 3-4 but only to actions under HRA ss. 6-7. The wording of the NIA is unfortunate; ‘unlawful act’ should really be followed by a qualifying ‘if any’ (Lady Hale ). But the minority was right to apply a purposive interpretation, given that the purpose of the NIHRC raising this case in its own name was to ‘prevent any woman or girl from having to face the burden of doing so’. As Lord Kerr argued, the majority’s literal interpretation robs the NIHRC of its statutory purpose . Furthermore, he was right to stress a purposive interpretation was not a ‘strained’ one . NIA s. 69(5)(b) gives the Commission the power to bring human rights cases. If an unlawful act is alleged, then a victim must be identified (i.e. if the action is under HRA ss. 6-7). But if the attack is to the legislation rather than any specific unlawful act by a public authority, NIA s. 71(2B)(c) is not engaged. The majority fixated too much on the need for a victim. A preliminary question is whether there has been an ‘unlawful act’. Incompatible primary legislation is not ‘unlawful’, nor are actions taken under it if it cannot be applied compatibly. Thus demanding that the NIHRC find both an ‘unlawful act’ and a ‘victim’ unnecessarily curtails its ability to initiate HRA ss. 3-4 actions. As Lord Mance noted, where there no victim, one looks ‘to the usual rules regarding standing in public law proceedings’ . It seems axiomatic that the Commission would have ‘sufficient interest’ in raising a case (Senior Courts Act 1981 s. 31(3)).
When Is a Declaration not a Declaration?
The minority who thought the NIHRC had standing would also all have made a declaration of incompatibility (Lady Hale and Lords Kerr and Wilson). But, despite finding that the NIHRC did not have standing, Lord Mance and Lady Black went on to say that they would have made a declaration had standing been established. Lord Reed (with whom Lord Lloyd-Jones agreed) would not have made a declaration, but even he said that it was ‘important’ that the law was reviewed . Lady Black agreed that the ‘worrying situation’ called for review .
Lord Kerr’s judgment provides a moving account of individual women’s experiences referred to by the NIHRC. But perhaps the strongest condemnation of the legislation and of the need for reform came from Lord Mance, who described the law as ‘untenable’ and in need of ‘radical reconsideration’ . In closing at , he stated that:
‘Those responsible for ensuring the compliance of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility.’
These remarks are rather bold, despite the nod to the fact that even a declaration of course requires no action to be taken. It will be interesting to see what the political reaction to this ‘non-declaration’ will be.
How to remedy any incompatibility is a highly sensitive one for democratic bodies to resolve: Lord Reed  and Lady Black . It is indeed ‘difficult to envisage a more controversial issue’ than abortion laws (Lord Reed ). But HRA s. 4 is inherently deferential. Making a declaration of incompatibility would have allowed that appropriate separation of powers to have operated. As Lady Hale said at :
‘Parliament did not say, when enacting section 4 of the HRA, “but there are some cases where, even though you are satisfied that the law is incompatible with the Convention rights, you must leave the decision to us”’.
But of course HRA s. 4(2) is drafted in permissive terms, and the UKSC famously exercised their discretion not to make a declaration in R (on the application of Nicklinson) v Ministry of Justice  UKSC 38,  A.C. 657. Nicklinson was, however, distinguished by the Court for various reasons:
(a) the cessation of the Northern Ireland Assembly’s activities means that parliamentary consideration of the issue is not imminent: e.g. Lady Hale . Prior to the suspension of its functions, an Assembly vote had returned a majority against amending the law , but a working group had been set up to consider the issue. Although it was ‘anticipated that it will recommend reform’  there was no guarantee if and when the working group would be revived . Policymakers should take note of Lord Kerr’s observation that the DUP, although traditionally a pro-life party, are specifically opposed to the extension of the Abortion Act 1967 to Northern Ireland. They had an open mind about other possibilities for reform, at least in February 2016, and indeed proposed the establishment of the working group .
(b) the issue does not require a balance to be struck between two living persons (those who want to end their lives and those who might feel under pressure to end their lives because of perceiving themselves as a burden) [118-119].
(c) English law on assisted suicide is not out of step with most of the Council of Europe, unlike Northern Ireland’s abortion laws .
(d) the incompatibility would be easier to resolve in this case .
Although the present case was not founded on one concrete factual matrix, in one sense it was a prime candidate for a declaration of incompatibility because the majority of the Court was satisfied that the legislation was incapable of operating compatibly with Article 8 for anyone: Lady Hale . Lord Mance went further, stating that the legislation need only be ‘inevitably’ incompatible ‘in a legally significant number of cases’ rather than incapable of compatible operation .
Lord Mance went on to state that if a specific individual were to challenge the compatibility of the legislation, it is ‘inevitable’ that a declaration would be made . One of the individuals whose case was cited in evidence by the NIHRC looks set to do just that, putting her through the ordeal and expense of recounting her ‘harrowing’  and ‘distressing’  experience that the NIHRC was established to avoid (not to mention wasting judicial resources if the outcome is as inevitable as Lord Mance suggests). It ought to have been obvious to the majority that the case was not ‘abstract’ (Lord Mance ) or hypothetical merely because it was raised by the Commission rather than an individual. Given that the majority was satisfied that the legislation could not be operated compatibly with Article 8, there was necessarily no unlawful act and thus no need for a victim. Lord Mance’s plea for ‘individualised investigation and adjudication’  is not what HRA s. 4 demands.
Dr Shona Wilson Stark is a College Lecturer and Director of Studies in Law at Girton College and an Affiliated Lecturer in the Faculty of Law, both University of Cambridge.
(Suggested citation: S. Wilson Stark, ‘In Re Northern Ireland Human Rights Commission’s Application for Judicial Review  UKSC 27: A Declaration in All but Name?’, U.K. Const. L. Blog (12th Jun. 2018) (available at https://ukconstitutionallaw.org/))