More than just a question of choice

Two weeks ago, a sharply divided Supreme Court rejected an attempt to declare unlawful the secretary of state for health’s refusal to fund abortions on the NHS for women travelling to England from Northern Ireland.

The Abortion Act 1967 does not apply in NI. Sections 57 and 58 of the Offences Against the Person Act 1861 are still in force, and make performing or having an abortion a criminal offence. Criminal law relating to abortion has been devolved to the NI Assembly. It is not an offence for NI women to obtain abortions in Britain. Official statistics suggest around 1,000 per year do so, although this is likely to be a considerable underestimate.

In 2012, aged 15, A fell pregnant and travelled with her mother, B, to Manchester for an early termination from a private healthcare provider. The cost of the termination was £600, and A and B struggled to raise this at short notice. A brought a judicial review of the secretary of state’s decision not to allow termination on the NHS in England to women from NI, arguing that as a UK citizen she should be entitled to this on the same basis as those resident in England.

Duty to promote health service

The question for the Supreme Court was whether the health secretary’s failure to exercise his power to require that abortion services be provided through the NHS in England to women ordinarily resident in NI was unlawful under the NHS Act 2006.

The National Health Service Act 2006, sets out the duties imposed on the secretary of state as below (emphasis added):

1. Secretary of state’s duty to promote health service:

(1) The secretary of state must continue the promotion in England of a comprehensive health service designed to secure improvement:

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis, and treatment of illness.

(2) The secretary of state must for that purpose provide or secure the provision of services in accordance with this Act.

(3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

The health secretary conceded he would have had the power to order the then trusts (now clinical commissioning groups) to provide abortion services to women from NI; the appellants main case was that in the context, the secretary of state’s power to do this, became a duty to do so. She argued that as a UK citizen and tax payer, she should be treated like all other UK citizens and taxpayers. The respondent chose to provide abortion services in England on the NHS for women usually resident in England on the basis that they had a reasonable medical requirement for it. But the respondent knew that women usually resident in NI were unable to access such services there, and so, she argued, the only rational decision was to provide such services for them in England.

The health secretary argued that he could not have such a duty because:

1. The Act specifically left large areas to his own judgment;

2. The Act (Section 1(1)(a)) made clear he should be focused on improving the health of the people living in England; and

3. It was the policy of the government not to fund services for residents of NI which the democratically elected NI Assembly had deliberately decided not to legislate to provide, and which were unlawful in NI.

Not unlawful

By a majority the Supreme Court held the secretary of state’s decision was not unlawful. In particular, Lord Wilson noted that section 1(1) of the Act refers not to people in England, but to ‘the people of England’, meaning the people who live in England. Parliament’s scheme was for separate authorities in each of the four countries within the UK to provide the health services to those usually resident in each country, and other legislation with an analogous target duty is imposed on the health authorities in Wales, Scotland, and NI. Therefore, the health service for people living in NI is be provided by the NI authorities, and the respondent was entitled to make a decision in line with this scheme for local decision-making.

The third reason provided by the secretary of state, his respect for the decisions of the NI Assembly, was used by A to argue he had taken into account an irrelevant reason, rendering his decision unlawful. Specifically, she reasoned it was the very decision of the NI Assembly to not allow abortions which created the need for A to access a termination in England, and so this same reason could not be used as a reason for refusing to meet that need. However, Lord Wilson rejected this too, holding the respondent was entitled to respect the democratic processes within NI.

Human rights argument

The Supreme Court also considered whether the continuing failure to provide abortion services free of charge in England to women ordinarily resident in NI infringed articles 14 and 8 of the European Convention on Human Rights.

The appellant argued that respondent’s decision violated article 14 of the convention, when taken in conjunction with article 8. Article 8 provides for a qualified right to respect for private and family life; article 14 provides that rights in the convention shall be secured without discrimination ‘on any ground such as… national… origin… or other status’.

A argued women who were UK citizens and present in England, but usually resident in NI, were treated differently from women who were UK citizens and usually resident in England. This difference amounted to a difference in treatment based on ‘other status’, and was consequently discriminatory.

Lord Wilson considered that as the respondent did treat these two groups of women differently, there was a difference in treatment which in principle satisfied the requirements of article 14. However, article 14 specifies that if a difference in treatment can be justified, then there will be no discriminatory breach.

The justification reasons overlap to a significant extent with the reasons above and allow the secretary of state a large area of discretion. The only real issue for the court in determining justification was to consider whether the respondent’s decision struck a fair balance between the rights of the women from NI and the interests of the UK community as a whole.

Lord Wilson rejected the respondent’s argument that the costs of providing such provision played a role in this balancing exercise, and noted the appellant’s reliance on international conventions, including the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which promote the rights of women to seek terminations.

However, Lord Wilson did not consider this ‘international material’ to be sufficiently important to overrule the respondent’s reliance on the overall scheme of separate provision of health treatment within the four counties of the UK, and to respecting the democratic decisions determined by the NI Assembly. He considered that the balance struck was fair, and, therefore, the appellant’s human rights argument also failed.

The dissenters

Lord Kerr begins his dissenting judgment by stating in no uncertain terms that it is ‘wrong’ a NI woman who suffers an acute attack of appendicitis can have her appendix removed in England, but she cannot have an abortion.

His judgment was based on a fundamentally different interpretation of the 2006 Act. Section 1 states that the secretary of state ‘must continue the promotion in England of a comprehensive health service’, and while section 1(1)(a) was limited to the people of England, section 1(1)(b) imposed a separate duty to prevent, diagnose and treat illness, which was not limited to the people of England, but a part of a broader duty to promote a health service ‘in England’.

He considered that sections 1(1)(a) and 1(1)(b) impose different duties on the health secretary, and need to be considered separately. This interpretation is supported by section 3, which sets out the duty to promote a comprehensive health service, specifying the provision of hospital and nursing services. Lord Kerr considered section 3 was primarily concerned with section 1(1)(b), because the promotion of a comprehensive health service would not be fulfilled merely be bringing about an improvement in the health of the people of England.

On the public law challenge, Lord Kerr concluded that the health secretary’s duty was not ‘what are the reasonable requirements of the people of England for these services’, but rather ‘what are the reasonable requirements in the provision of those services throughout England’. Because the Abortion Act 1967 only allows terminations to avert a risk of physical or mental injury, providing this to all those in England was a reasonable requirement under the 2012 Act.

Lord Kerr also considered that the difference in treatment under the ECHR could not be justified. Allowing NI women to have NHS abortions in England did not impinge on the NI Assembly’s continuing responsibility for the provision of medical services in NI, including to any visiting Englishwomen. Similarly, allowing such abortions involved no disrespect to the NI Assembly, which had not expressed any view on NI women travelling to England for abortions.

While accepting the convention did not prevent separate jurisdictions within a federal system from devising their own laws, the situation of A was different: she was arguing only that when in England she should be treated in the same way as an Englishwoman.

Lady Hale concurred with Lord Kerr, but went further in her interpretation of convention rights. She stated the right of a woman to have a lawful abortion restored her autonomy and respected her dignity, and autonomy and dignity were core values underlying the rights in article 8.

NI women deserved the same rights over their bodies as women in the rest of the UK; any difference was inconsistent with article 14. Interestingly, she made no reference to the European case law which states clearly that the convention does not provide women with a right to an abortion (A, B, and C v Ireland (2011)).

The appellant has already indicated they are looking to proceed to Strasbourg. In the meantime, women from NI will continue to have access to abortions in the rest of the UK, but only on a private basis. Interestingly, the Scottish government is looking into the possibility of offering NI women NHS terminations, with First Minister Nicola Sturgeon keen to promote the rights of women to choose.

It is likely such a policy would face a judicial review from pro-life activists, because, in part in reliance on this judgment, the duty of the Scottish government is to provide for the health care needs of those usually resident in Scotland. And with the DUPs role in supporting the Tory government, it seems likely this issue will remain in the news.

Anna Macey is a barrister at Kings Chambers

@Kings_Chambers www.kingschambers.com