Its more nuanced that that, but it makes a very important point: Human Rights are not a devolved matter... Westminster has a responsibility here.
Human Rights Activist @AdamWagner1 has explained it best I think:
Adam Wagner @AdamWagner1
BREAKING: Northern Ireland Human Rights Commission loses challenge to restrictive abortion laws on a technicality
The Court would have ruled abortion laws breached Art 8 (family & private life) but not Art 3 (inhuman/degrading treatment). But because it ruled, also by narrow majority, that Northern Ireland Human Rights Commission did not have "standing", it still lost case. What a shambles
It's right to say as @Anisminic does that @UKSupremeCourt ruled by a majority that abortion laws breached Article 8, but not Article 3. That's very important especially for future cases but still it's an odd result as technically the Northern Ireland Human Rights Commission lost
Lord Kerr giving an unusually emotive speech. Starts with mention of brave women. Makes clear that the two justices who wouldn't support the majority on the substantive issues did not expressly say the current laws did comply with human rights. Sounds like some unhappy justices
Lord Kerr at great pains to stress that none of the five justices disagreed with the ruling that the Northern Irish abortion laws breach human rights. Majority "has expressed a clear opinion" that the law incompatible with Article 8 (right to family and private life)
Lord Wilson and Kerr (2 out of 5) would have ruled that abortion laws breached Article 3 (inhuman and degrading treatment). Lady Hale, oddly, decided not to express a view on that because of her conclusions on Article 8, which were obiter anyway because of the technicality.
Lord Kerr: our findings are not binding on lower courts. Very important. "But the comprehensive discussion on question of compatibility thought not in any sense binding must be worthy of close consideration for those in whom hands power lies to decide if law is to be altered"
^1. So, let's sum up where we are with this complicated judgment.
First, most importantly for legal result of ruling. Court rejected, by a 3-2 majority, the Northern Ireland Human Rights Commission's right to bring the claim. Their "victim status". Means technically they lost.^
2. However, the Court went on to say what it would have decided had the NI Human Rights Commission had standing to bring the claim. And it would have decided - also by 3-2 majority - that most of NI abortion laws breached Article 8, human right to private and family life
3. AND it would have decided (I know language is weird but it's the way things work when you lose on a technicality - will explain) that laws did not breach article 3 (inhuman/degrading treatment) but sounds like a 2:2:1 decision as Lady Hale didn't tell us what she thought!
4. So to summarise:
NI Human Rights Commission
- lost on standing by 3:2 majority
- Would have won on Article 8 also by 3:2 majority
- Not clear what would have happened on Article 3, but sounds like Hale may have gone against and didn't want to say as she didn't have to
5. What does this mean for the lasting effect of this judgment? Well, it's complicated. Technically because the NI HRC lost, the lower courts are not "bound" by the decision. So if a woman brought a case tomorrow challenging the laws she would have a rough ride
6. Would have a rough ride because NI HRC lost in both Court of Appeal (on substance) & Supreme Court (on technicality). So High Court would have no choice but to reject claim and send it up. Eventually may reach Supreme Court but lots can happen in highly charged political cases
7. That's not end of story. What we have now is a strong indication from Supreme Court where law is going. Lord Kerr gave an emotive appeal to "those in power" to consider fact that 3 justices said laws breach human rights and the other 2 didn't disagree though they didn't agree!
8. Unfortunately, the reality is in a highly charged political climate as there is with abortion, the complexity and nuance you need to understand the Court's approach will be lost and used by anti-abortion campaigners to say it's a nullity. Which is a great shame
9. Reading between lines (and I haven't yet read the full judgment) it sounds to me like the majority of the Court which ruled the laws were incompatible were very unhappy that the important principled result was undermined by the - let's call it what it is - absurd technicality
10. I said earlier that this is a shambles. It is. Difficult to overemphasise amount of time, effort, money to take a case all the way to the Supreme Court. It takes years. Potentially hundreds of thousands of pounds. The Court should be doing its duty and reaching clear rulings
11. Many apologies for having screwed up the numbering of justices. Press summary here:
- 4:3 majority said no standing to bring claim
- 4 said would have breached Art 8
- 4 said wouldn't have breached Art 3
12. One other thought. For a human rights commission (regulator) to be unable to bring a claim to prevent a breach happening, but instead have to wait for it to occur, is absurd . Human rights commissions shouldn't have to wait for someone to be hurt by a bad law.
In other words the case got thrown out because no one's human rights have been breeched (or more accurately no one whose rights have been breeched has been prepared to challenge the law). The law says that even though the court recognises that in theory human rights could be breeched in this area should the situation arise. Despite this human rights organisations have no legal power to close this gap through the courts - indeed the courts have ruled against them, which anti-abortionists will take as victory.
HOWEVER the Supreme Court has effectively said this is a load of bollocks and the government should act to close this effective loop hole as its a bunch of arse.
Unfortunately a women who found herself in this situation would still have to take it to court to undo all this and challenge the law. Yet in the course of doing so, would have to understand and know that because of the way the law works (by precedent) the High Court would have no choice but to rule against her because legal precedent has been set by this case, because the NIHRC lost previously.
The case could then be referred to the Supreme Court, who in the nuance of their ruling have made a lot of noise to say they would find in favour of a women who was eligible to bring the case to the court because they believe that rights would be breeched. But they can't actually make that ruling in this case, because the law doesn't work like that.
The Supreme Court judges - inparticular Lord Kerr - are rather pissed off about this, because they are frustrated that they are unable to make the ruling they should do, which would protect women from being put in a situation where such a case would be necessary and save them the distress from having to go through the whole palaver of bringing another legal case.
Instead, they have tried to say as explicitly as they can, how future cases should be handled, but they lack the power to bind lower courts to follow their judgement on this matter, because of the technically. Its almost like its an advisory ruling rather than a precedent. Which is why its so messy.
Instead the court has been somewhat political, in saying the law needs to be changed and should be changed, but they can't rule it must be. And said, that in theory, they would rule in favour of a woman ultimately, but they would have to go through the entire pointless process to get there.
Does that make sense?
In the short term it means the government can kick the issue into the long grass in practical terms, but it does very much add to the pressure to change the law, because the Supreme Court is in effect saying to the government, that there is a fair old chance they would lose a future case, if a woman was brave enough to go all the way and the government would be held liable and it might be a rather good idea to take action to prevent that from happening.
Politically losing such a case would probably be politically damaging to the government, so you'd fancy that if a case WAS brought, they might well try and head it off early - either via an out of court settlement and/or by seeking an emergency change in the law to try and persuade a woman to drop the case whilst it was in the process of going through the courts.
I think! Its not easy to follow by any means.
The ruling is frustrating and really doesn't ultimately solve the problem the case sort to resolve. Indeed it makes it even messier. But the nuance and detail of the ruling is essentially pro-woman's rights.