By a 3-2 majority, the Supreme Court has dismissed the appeal in R (A and B) v Secretary of State for Health  UKSC 41.
In 2012, A, a 15-year-old woman resident in Northern Ireland became pregnant. She used the services of a private clinic in England to secure an abortion accompanied by B, her mother (and litigation friend), at a total cost of £900 including travel. She did so because she reasonably believed that she would not be able to obtain an abortion in Northern Ireland or through the NHS in England because she was ordinarily resident in Northern Ireland.
A brought proceedings for judicial review, arguing that it would be within the power of the Secretary of State to make greater provision for abortion services to be provided to women from Northern Ireland through the NHS in England but that, save in exceptional cases, he had not exercised that power at the material time or since. She contended that that failure was unlawful. Her claim was dismissed at first instance and the Court of Appeal dismissed her appeal.
The issues in the case were as follows:
- Was the Secretary of State’s failure to exercise his power to require abortion services to be provided through the NHS in England to women ordinarily resident in Northern Ireland unlawful as a failure to discharge his duty under s 3 of the National Health Service Act 2006 to “take such steps as he considers necessary to meet all reasonable requirements” for services?
- Does the continuing failure to provide free abortion services in England to women ordinarily resident in Northern Ireland infringe Articles 14 (discrimination) and 8 (private and family life) ECHR?
Lord Wilson (with whom Lord Reed and Lord Hughes agreed) dismissed the appeal and concluded that the human rights challenge failed because the difference in treatment was justified . Article 8 was engaged ; however, a difference of treatment between UK citizens present in England on the grounds of usual residence fell within the scope of “other status” for the purposes of Article 14 .
In short, the aim of the Secretary of State’s decision in relation to women who were UK citizens but usually resident in Northern Ireland “was to stay loyal to a legitimate scheme for health services to be devolved in the interests of securing local provision to residents in each of our four countries” and was rationally connected to his decision not to make the direction sought by the appellants; with that aim in mind, he could not have reached any decision less intrusive upon their Article 8 rights . That position struck a fair balance between their rights and the interests of the UK community as a whole and was not discriminatory [33, 35]. Extending the existing duty would, in Lord Wilson’s view:
“precipitate both a substantial level of health tourism into England from within the UK and from abroad and a near collapse of the edifice of devolved health services. In the end, for the reasons given above, I find myself unable to agree either that sections 1 and 3 of the 2006 Act or that the human rights of UK citizens generate the suggested duty” .
Dissenting, Lord Kerr started off from the position that
“A woman from Northern Ireland (NI) visiting England who suffers an acute attack of appendicitis will have, if it proves necessary, her appendix removed in a National Health Service hospital, without charge. The same woman, if she travels to England in order to obtain an abortion, must pay for that procedure. How can this be right? The answer is that it cannot be, and is not, right” .
He suggested that the majority decision rested, in effect, on a false premise: the applicants
“do not assert that the law in Northern Ireland should correspond with that in England. They claim that when women from Northern Ireland are in England, they are entitled to be treated in the same way as Englishwomen in the provision of abortion services. To analogise with the position in Magee, [Magee v United Kingdom 31 EHRR 35], if the applicant in that case had been arrested in England, he would have been entitled to the same detention regime as would have been afforded Englishmen arrested for the same offences. The appellants derive their status as women from Northern Ireland who have been treated differentially from women in England. I therefore consider that they are entitled to succeed on their human rights claim also” .
Lady Hale agreed with Lord Kerr:
“The protection of dignity and autonomy is a core value underlying the rights guaranteed by article 8. The difference in treatment by the NHS in England between women from England and women from Northern Ireland cannot be justified by respect for the democratic decisions made in Northern Ireland as to what will be provided by the NHS there. In fact, the reason why abortion is only available on a very limited basis in Northern Ireland is not that the NHS has chosen to provide different services there. It is that the criminal law of Northern Ireland remains as it was in England before the Abortion Act 1967 was passed. The NHS there could not provide abortion on a wider basis there even if it wanted to do so. There is no question of trying to change the criminal law of Northern Ireland. But that law does not prohibit women from travelling to England to have an abortion which is perfectly lawful here. It cannot constitute a good reason for a policy of denying them health services which are lawful here” .
Next stop, one would imagine, Strasbourg.