Northern Ireland abortion guidelines discovery caution

Non-disclosure of information on terminations in Northern Ireland could be interpreted as a government "paralysed" by cultural and religious divisions, a senior judge has warned.

Lord Justice Coghlin said continuing delay may diminish public confidence.

He was sitting on an appeal by the department of health,

The appeal, against an order for discovery of documents relevant to a challenge to alleged failure to issue new abortion guidelines, was upheld.

The Court of Appeal ruled that the material should instead be inspected first by the judge who is due to hear the judicial review challenge later this month.

The Family Planning Association (FPA) has issued proceedings against the department over the continued non-publication of guidelines.

Misleading

The sexual health charity claims there was a legitimate expectation that revised guidance would be completed following earlier court orders.

Under current law, abortion in Northern Ireland is only available in limited circumstances, where the mother's life or mental well-being are considered at risk.

In 2009, the department published a document which, for the first time, provided guidance to health professionals in Northern Ireland on terminating pregnancy.

But later that year the High Court ruled it did not properly cover counselling and conscientious objection issues.

A judge held that the guidelines were misleading and should be withdrawn for reconsideration.

Since then a fresh public consultation process on counselling and conscientious objection was undertaken as part of the redrafting.

Appearing before a three judge Court of Appeal panel on behalf of the department and minister Edwin Poots, Attorney General John Larkin QC contended there was nothing in the documents that assists the FPA's case.

He confirmed, however, that he was happy for the court to study the material, which Mr Poots has been considering, and form its own view.

During the hearing it was noted that departmental guidance has been awaited since a ruling from 2004.

'Duty of candour'

Lord Justice Coghlin, sitting with Lord Chief Justice Morgan and Lord Justice Girvan, said: "There comes a stage in any government activity when delay becomes much more than simply... the government going ahead with its work and it becomes a matter of real concern to the governed.

"In this case it seems to me the danger is in the department taking a view 'no, you can't see these documents' despite the fact it has taken so long to consider what we should do.

"It can be interpreted by the governed not so much as the diligent work of government (but) as a paralysed government that because of its cultural and religious divisions simply cannot bring itself to discharge its duties.

"That's why there is a duty of candour."

Mr Larkin said, however, that Northern Ireland's constitutional arrangements must be acknowledged.

He also pointed out that Mr Poots only became health minister in 2011 and has been working continuously with officials to comply with the requirement to publish guidance.

According to the Attorney General the FPA has been premature in mounting a challenge to emerging public policy.

'Unconscionable'

"We are in a fluid state in terms of the development of government policy," he said.

Lord Justice Coghlin told him: "Nobody is denying for a minute that it's a finely balanced judgment.

"But the longer time goes on the less trust the governed may have in the government."

Tony McGleenan QC, for the FPA, argued that the delay has been "unconscionable".

He claimed there could come a point, not yet reached, when it would amount to an abuse of power.

Following the court's ruling the judge in the judicial review hearing will now decide the merits of the material sought.

Lord Chief Justice Morgan confirmed: "He should inspect the documents with a view to determining whether after such inspection the documents should be provided on the basis of the legal test."