Case seeks to legalise abortion in cases of rape, incest and “serious malformation”

Northern Ireland's abortion legislation contravenes article 3 of the European Convention of Human Rights which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, Belfast High Court has been told.

Nathalie Lieven QC made the comment in front of Mr Justice Mark Horner, who is hearing a case where the North's Human Rights Commission is seeking to make abortion legal in instances of rape, incest and "serious malformation of the foetus".

The court also heard yesterday that all countries in Europe apart from Ireland North and South, San Marino, Malta and Andorra allow abortion in cases of rape, incest and fatal foetal abnormality.

Ms Lieven, for the commission, said the issue of abortion in relation to these categories could not be left to the Northern Executive on the basis that it might act to legislate at some undefined date in the future.

The case is expected to last three or four days. Mr Justice Horner is hearing submissions from campaigners representing both sides of the abortion argument with the North’s Attorney General, John Larkin QC, also expected to make an oral submission.

Abortion is currently legal in Northern Ireland where there is a threat to the life of the woman or where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent.

Following a consultation, the North’s Department of Justice has recommended that abortion be permitted in Northern Ireland in cases of fatal foetal abnormality, but this proposed change does not apply to cases of rape and incest.

Ms Lieven argued that the matter could not be left to the Northern Executive because it was only dealing with one of the three issues.

Among those making submissions to the judicial review is Sarah Ewart, who brought the issue of fatal foetal abnormality to public prominence in 2013. Ms Ewart was denied an abortion in Northern Ireland even though her unborn baby was diagnosed with anencephaly, a severe brain condition which meant the baby would die in the womb or was only likely to live for a very short time. She had a termination in England at 20 weeks.

Ms Lieven said that “beyond a shadow of a doubt”, Ms Ewart was a “victim” of current abortion law in Northern Ireland. She said in all international treaties, the right of the foetus did not outweigh the rights of girls and women to have abortions in cases of rape, incest and fatal foetal abnormality.

Ms Lieven said that in 2013, five girls aged under 16 from Northern Ireland travelled to England or Wales for abortions with 19 doing so in 2010-2011. She added that in 2013, there were four cases of incest against girls aged under 16 and four cases of “sexual activity without consent” against girls aged under 16.

She said that in 2013, there were 515 sexual assault cases against girls and women aged 13 and over. There were 263 cases of sexual assault against girls aged under 13 and 217 sexual crimes against girls aged under 16.

Tony McGleenan, QC, who on behalf of the Department of Justice is opposing the application, said there was a real question as to whether the Human Rights Commission had the power to bring the current proceedings.

A final decision is not expected until after the summer.