Case details

Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion)

Case ID: UKSC 2017/0067

Case summary

  1. Whether sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 are incompatible with articles 3, 8 and 14 of the European Convention on Human Rights (ECHR) in failing to provide an exception to the prohibition on the termination of pregnancy in Northern Ireland in cases of serious malformation of the unborn child/foetus or pregnancy as a result of rape or incest
  2. whether the Northern Ireland Act 1998 entitles the appellant to bring proceedings under the Human Rights Act 1998 (‘HRA’), and to seek a declaration of incompatibility under section 4 HRA, other than in respect of an identified unlawful act or acts

Abortion is prohibited in Northern Ireland except where carried out in good faith for the purpose only of preserving the life of the mother. In 2014 the appellant Commission brought proceedings for declarations pursuant to s 6 and s 4 HRA that this prohibition is incompatible with rights protected under the ECHR insofar as they relate to access to termination of pregnancy services for women with pregnancies involving a serious malformation of the foetus or pregnancy as a result of rape or incest. The High Court made a declaration on 16 December 2015 that the criminal law was incompatible with article 8 (but not articles 3 or 14) ECHR by virtue of the absence of exceptions to the general prohibition on abortions in the cases of (a) fatal foetal abnormalities at any time; and (b) pregnancies which are a consequence of rape or incest up to the date when the foetus becomes capable of existing independently of the mother. The Northern Ireland Assembly voted on 10 February 2016 against legalising abortion in cases of fatal foetal abnormality or cases of rape, incest or indecent assault. On appeal and cross-appeal on all issues to the Court of Appeal the respondents’ appeals were allowed and the cross-appeal dismissed. The Court of Appeal also agreed to refer two devolution issues raised by the Attorney General for Northern Ireland on the issue of the standing of the Commission to bring the proceedings.

Judgment appealed

[2017] NICA 42



Attorney General for Northern Ireland

  1. Northern Ireland Human Rights Commission
  2. Department of Justice



Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones

Hearing start date

24 Oct 2017

Hearing finish date

26 Oct 2017