The High Court of Northern Ireland: Northern Irish Abortion Law Incompatible with the European Convention on Human Rights

Jane Rooney is PhD Candidate in Law at the University of Durham. Her research brings a comparative analysis to the extraterritorial application of human rights by domestic, regional and international adjudicatory bodies, with central focus on the approach taken by the European Court of Human Rights. She tweets @JaneMRooney. This post was originally published at European Futures and is reposted with permission and thanks.

On 30 November 2015 in the case of The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96, the High Court of Northern Ireland found that Northern Irish law regulating abortion was incompatible with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). This was an historical judgement made possible through the conjoined efforts of many, including women directly affected by the legislation, the Northern Ireland Human Rights Commission and Amnesty International.

Judge Horner (Mr Justice Mark Horner) delivered a judgement that engaged with many complex legal, political and social questions which, although not entirely beyond criticism, is to be applauded. He found that the foetus does not have a right to life under Article 2 ECHR; that there is no domestic consensus on issues relating to abortion in Northern Ireland; and that permitting a woman to travel to England to receive an abortion does not mitigate against the harshness of the regulations in place.

The Decision of Judge Horner

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Inherently Brief: Volume 38

Snapshots of law, gender and sexuality news from the past couple of weeks.

World’s first male rape centre

Aidan Bull, Durham University

A hospital in the Swedish capital, Stockholm, is believed to be the first rape centre for male sexual violence victims.

Sweden has the highest rate of rape in Europe, but this is partly because the country records allegations in a different way to most countries, tracking each case of sexual violence separately. For example, if someone says they were raped every day by their partner for a week, officers will record seven potential crimes. In contrast, many other countries would simply label it as a single incident. This wide reaching tracking system has helped to uncover the hidden statistics of male rape.  In 2014, some 370 cases of sexual assault on men or boys were reported across Sweden, according to the Swedish National Council for Crime Prevention, although experts believe that the actual figure is much higher.

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Inherently Brief: Volume 37

Snapshots of law, gender and sexuality news from the past couple of weeks.

Supreme Court Decides on Fraudulent Divorce Case

Catherine Ravenscroft, Durham University

On 14^th October 2015, the Supreme Court handed down judgement in the landmark case of Sharland v Sharland. This case concerned the division of assets upon divorce where one party, in this instance the husband, has fraudulently misled the court as to their future financial plans. Mr Sharland owned shares in a company which he told the Court he had no intention of selling. Mrs Sharland signed a consent order on the basis of this assertion. However, during the court hearing, it was discovered that Mr Sharland did indeed have plans to sell his shares, which would significantly affect the claim which Mrs Sharland advanced. She appealed to the Supreme Court on the basis that the consent order should be sealed. It was unanimously held that ‘fraud unravels all’ and the consent of Mrs Sharland was found to be vitiated by the fraudulent behaviour of her husband. The consent order was, thus, set aside.

The importance of this decision is to be found in its consequences. The decision of the Supreme Court has allowed Mrs Sharland to return her claim to first instance and have its value reconsidered by the courts. Although the full significance of this decision may not be felt for some time, it appears to create significant scope for the re-opening of divorce settlements on the basis of fraud. In contrast, there are also concerns that this decision may open the floodgates to couples attempting to revisit divorce agreements.

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Engagement and ‘New Imperialism’

Se-shauna Wheatle is a Research Associate in Public Law at Durham Law School. In 2013, she produced a report funded by the Foreign and Commonwealth Office, entitled ‘Adjudication in Homicide Cases involving Lesbian, Gay, Bisexual and Transgendered (LGBT) Persons in the Commonwealth Caribbean‘. She tweets @seshauna.

The Debate

The controversy at the end of 2014 over the lyrics to the BandAid 30 Christmas charity song ‘How Can they Know its Christmas’ represents the tension, the struggle that is at the heart of this blog post. The song’s description of West Africa as ‘a world of dread and fear’ and its invocation to listeners to ‘bring peace and joy this Christmas to West Africa’ paints a picture of a desperate and dismal region that needs to be rescued by Britain. Though, of course, the song was motivated by a drive to provide assistance to the fight against the Ebola virus afflicting several countries including Sierra Leone, Guinea and Liberia, the lyrics sparked discourse about a recurrent ‘white saviour complex’ and a perception of the global south as desperate and helpless. This debate invites us to consider how we can engage meaningfully to solve the world’s problems, to enhance social justice and equality without unwittingly perpetuating stereotypes and thereby undermining the very efforts we seek to champion.

It is with these questions in mind that I believe human rights researchers and activists have to confront the critique that modern engagement, particularly in issues of rights and development, is approximate to a ‘new age imperialism’. The ‘imperialism objection’ in this sense has been accurately depicted by Nick Bamforth as ‘involving the imposition of a (stronger) imperial power’s laws on (weaker) colonies’. This presents a picture of a process of the subjugation of the local population to the legal authority of a more powerful, distant jurisdiction.

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Inherently Brief: Volume 35

Russia bans Trans* people from driving

Catherine Ravenscroft, Durham University

Last month Russia enacted a new law effectively banning people with certain illnesses from driving. Within the listed illnesses are those viewed as “personality and behaviour disorders”, for example transsexualism and other “disorders of sexual preference”.

The move was justified by the Russian government on the basis of a need to reduce the high rates of traffic accidents occurring each year. The country currently has some of the worst figures for road accident fatalities in the world and it is believed that stricter controls on those given the opportunity to drive will make the roads safer.

Nevertheless, the Act has received international criticism due to its potentially detrimental effects on the transgender community. Jean Freedberg, of Human Rights Campaign Global, argued that the ban is “simply another example of the Russian government’s increased campaign of persecution and discrimination against its LGBT population”. Like other critics, Freedberg fails to see the logic behind connection that the Russian government has drawn between gender identity and driver ability. As Shawn Gaylord, of US-based Human Rights First, argues, “banning people from driving based on their gender identity or expression is ridiculous”. He also expresses concerns that it could deter transgender people from seeking mental health services due to a fear of losing the right to drive.

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PP v HSE: Practicability, Dignity and the Best Interests of the Unborn Child

Máiréad Enright is a lecturer at Kent Law School and is completing a PhD at University College Cork which examines the legal treatment of questions in Muslim divorce practice in the UK and the United States from the perspective of a multiculturalist feminism. This post is cross-posted from humanrights.ie with permission and thanks.

The High Court handed down judgment in PP v. HSE today.  The Irish Times provides a useful summary here.  P., who was 15 weeks pregnant, died on December 3rd, but her body  was subjected to medical processes to ‘facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability’ for several more weeks.  We call the experimental treatment her body received ‘somatic care’. ‘Somatic care’ seems a benign phrase, but it involved a tremendous amount of intervention designed to postpone the inevitable collapse and decay of P.’s other organs following the cessation of blood flow to her brain, thereby sustaining the pregnancy. Medical evidence given in court made clear that the eventual effects of these interventions on her appearance, and the consequent distress to her family, undermined her dignity in death. Nevertheless, doctors in both hospitals where she was treated apparently believed that the law required them to follow this unusual course of action, given that the foetus still had a heartbeat. By the time the case came to court, P.’s body was deteriorating rapidly. There was no real prospect that, even if treatment were continued, the pregnancy could be maintained until viability. Her family and partner wanted the somatic treatment discontinued, and her father applied to the court for this purpose. This morning, the  High Court exercised its inherent jurisdiction and authorised P.’s doctors to discontinue treatment, at their discretion.

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Inherently Human: Volume 32

Snapshots of law, gender and sexuality news from the past couple of weeks.

‘Equal Recognition’ campaign launched in Edinburgh; hope for a ‘third gender’ within the UK?

Oriana Frame, Durham University.

On the 1^st of November 2014, the Equal Recognition campaign was launched in Edinburgh. The campaign, pioneered by The Scottish Transgender Alliance alongside the Equality Network, has vocalised the notion that Scotland, along with the rest of the United Kingdom, is falling behind countries such as India, Denmark, Bangladesh and Germany who have already legally recognised a ‘third’ non-binary gender.

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Inherently Brief: Volume 31 (Part 1)

Snapshots of law, gender and sexuality news from the past couple of weeks.

US Supreme Court (Sort of) Decides on Same Sex Marriage

Jesse Bachir, Durham University

Following last year’s decision in Windsor, same-sex couples and LGBT advocacy groups across the United States have been filing suits against State governments challenging the Constitutionality of same-sex marriage bans.

So far, almost every Court (with one exception) in the United States has found marriage bans to be unconstitutional either under Federal Constitutional law or State Constitutional law. Most recently, earlier this month, the Supreme Court denied a petition to review 7 cases from lower Federal Courts on the constitutionality of marriage bans. In denying review of the cases, the decisions of the lower courts stood (all of which found the bans unconstitutional), and the stays of execution issued by the lower courts were removed. That brings the total to 32 States with equal marriage.

The Supreme Court effectively, though indirectly, decided the issue for the rest of the country – in allowing the lower court decisions to stand, clear judicial precedent has been made.  The lower courts in all 7 of the denied review cases found the marriage bans to be unconstitutional for the same reasons. In denying review, the Supreme Court implicitly agreed with the rulings of the lower courts and avoided wading into the politically charged topic.

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Sex Work and Human Rights: Lessons from Canada for the UK

A Two-Day Symposium: Thursday 18^th – Friday 19^th September 2014

Durham Law School, Durham University

Registration is now open

In December 2013, the Supreme Court of Canada struck down three provisions of the Canadian Criminal Code, holding that they violate sex workers’ constitutional right to security of the person, and gave the Canadian Parliament one year to come up with new legislation, should it decide to do so. This landmark decision marked the first successful human rights challenge to the criminalisation of sex workers.

The conference will bring together academics, practitioners and activists from Canada and the UK, to think about the impact of the Bedford v Canada case in Canada, how it might provide lessons to the UK, and what human rights and a human rights challenge might look like for sex workers in the UK.

We welcome papers from academics, sex workers and activists and are open to alternative forms of presentation.

Key Speakers:

• Maggie O’ Neill (Durham University)
• John Lowman (Simon Fraser University)
• Nick Mai (London Metropolitan University)
• Niki Adams and Laura Watson (English Collective of Prostitutes)
• Rosie Campbell (Genesis)
• Georgina Perry (Open Doors)
• Jenn Clamen (Stella)
• Amy Lebovitch (SPOC; plaintiff in Bedford v Canada)

Also showing ‘Normal’ – a film on migrant sex work by Professor Nick Mai

Programme of the two days available here: SW and HR Programme FINAL

Abstracts of papers available here:  SW and HR Abstracts

For more information about the event, please contact the organiser Laura Graham at laura.graham@dur.ac.uk.

This two day event is kindly sponsored by the Modern Law Review and supported by Gender and Law at Durham and the Centre for Sex Gender and Sexuality.

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Ireland, Symphysiotomy and the UNHRC

Máiréad Enright is a lecturer at Kent Law School and is completing a PhD at University College Cork which examines the legal treatment of questions in Muslim divorce practice in the UK and the United States from the perspective of a multiculturalist feminism.

 

Power is cautious. It covers itself. It bases itself in another’s pain and prevents all recognition that there is “another” by lopped circles that ensure its own solipsism.’ – Elaine Scarry, The Body in Pain

 Ireland was examined by the UN Human Rights Committee under the ICCPR last week. The state’s response to the Committee’s follow up questions has been published online. These written answers supplement the oral presentations made by the Minister for Justice and civil servants at the hearings in Geneva. This document is useful as a time capsule of the government’s position on redress for institutional abuse of women and children, because it contains several pages of defence of the official position on reparations for survivors of symphysiotomy. Symphysiotomy is a childbirth operation, which involves breaking a woman’s pelvis, usually before or during labour. It was revived in Ireland in the 1940s by a small group of conservative Catholic doctors, working in state-run or state-supervised hospitals, as an alternative to Caesarean section and was performed in hospitals all over Ireland into the 1980s. (If you need a reminder of the violence and abuse which characterised its practice in Ireland, see here.) On July 1, the Government published Judge Yvonne Murphy’s Independent Review of Issues Relating to Symphysiotomy (the Murphy Report) which outlines a possible redress scheme for survivors. The scheme draws on Professor Oonagh Walsh’s final Report on Symphysiotomy in Ireland 1944 -1984 (the Walsh Report) published on the same date. It is important to stress that the fine print of the symphysiotomy redress scheme has not yet been made public. The State’s written response to the Committee, unfortunately, has introduced yet more ambiguity into an already murky public discussion. Hundreds of women who are members of Survivors of Symphysiotomy, disappointed by the government’s approach to redress, have begun High Court litigation against the hospitals which performed their symphysiotomies, and against the State (invoking the law of negligence and the principles established in O’Keeffe v. Ireland at the ECHR).

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