R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41

A 15-year-old girl usually resident in Northern Ireland travelled to England with her mother for an abortion, paying privately because NHS England would not fund it. The Supreme Court, by a 3-2 majority, held the Secretary of State's failure to provide free NHS abortions to Northern Irish women was lawful.

Facts

The first appellant, A, was a 15-year-old girl usually resident in Northern Ireland who became pregnant in 2012. Accompanied by her mother (the second appellant, B), she travelled to a private clinic in Manchester to obtain a termination of pregnancy, at a total cost of approximately £900, partly funded by the Abortion Support Network and partly borrowed from friends. Abortion is lawful in Northern Ireland only in very limited circumstances (where continuation would threaten the woman’s life or cause serious, long-term harm to her health), and the Abortion Act 1967 does not extend there. Consequently, around 1,000 women usually resident in Northern Ireland travel to England each year to obtain abortions privately, as they are not entitled to receive the service free of charge under the NHS in England.

Issues

Two grounds of challenge were advanced:

Public law

Whether the Secretary of State’s failure to exercise his power under section 7(1) of the National Health Service Act 2006 and regulation 3(7) of the Functions Regulations to direct that abortion services be provided free of charge under the NHS in England to UK citizens usually resident in Northern Ireland was unlawful, either because it took into account an irrelevant consideration, was irrational, or because the power had crystallised into a duty by reason of section 3(1) of the 2006 Act.

Human rights

Whether the Secretary of State’s decision violated Article 14 ECHR taken together with Article 8, on the ground that women usually resident in Northern Ireland were treated differently from women usually resident in England without justification.

Arguments

The appellants argued that A was a UK citizen and taxpayer who contributed to the NHS; that all UK citizens usually resident in the UK should be treated alike; that women in Northern Ireland could not access lawful abortion there; and that the only rational course was to provide free services in England. They submitted that the government’s reliance on the Northern Ireland Assembly’s democratic decision was an irrelevant consideration, since it was that very decision which created the need.

The Secretary of State submitted that Parliament’s scheme established separate provision of free health services within each of the four UK nations to residents of those nations; that section 1(1) of the 2006 Act imposed a target duty focused on the people of England; that section 3(1) left a broad area of judgement to him; and that it was legitimate to respect the democratic decision of Northern Ireland not to legislate for wider abortion access.

Judgment

The Supreme Court dismissed the appeal by a majority of 3-2 (Lord Wilson, Lord Reed and Lord Hughes; Lord Kerr and Lady Hale dissenting).

Public law (majority)

Lord Wilson held that section 1(1) of the 2006 Act created a target duty, with section 1(1)(a) referring to improvement in the health of “the people of England”, meaning those who live in England. The overall statutory scheme contemplated separate provision of free health services by the authorities in each of the four constituent parts of the UK to those usually resident there. The Secretary of State was entitled to make a decision in line with this scheme and consistent with the target imposed on him. He was further entitled to afford respect to the democratic decision of the people of Northern Ireland, to take account of the lawful availability of private abortion services in England, and to decide not to alter the consequences of that democratic decision by providing free services under the English NHS.

Human rights (majority)

Lord Wilson accepted that the decision fell within the ambit of Article 8 and that usual residence in Northern Ireland, qualified by UK citizenship and presence in England, constituted “other status” for Article 14 purposes. He nevertheless concluded that the difference in treatment was justified: the aim of staying loyal to a devolved scheme of health provision was legitimate and rationally connected to the measure; no less intrusive measure was available; and a fair balance had been struck. International materials such as CEDAW and the ICESCR added “background colour” but their authority was slight, and they did not displace the Secretary of State’s resolve to respect the devolved scheme and the Northern Ireland Assembly’s democratic decision.

Lord Reed’s concurring observations

Lord Reed addressed whether laws or administrative arrangements within one part of the UK that differentiate between UK citizens by residence fall within Article 14. Following Carson v United Kingdom (2010) 51 EHRR 13, he concluded that place of residence constitutes an aspect of personal status for the purposes of Article 14, whether the legislation is national or sub-national, but that differential treatment of this kind requires justification rather than being automatically discriminatory.

Dissenting judgments

Lord Kerr held that section 1(1)(b) of the 2006 Act (prevention, diagnosis and treatment of illness) was not confined to the people of England, and that section 3 obliged the Secretary of State to provide medical services throughout England without restriction to local residents. He rejected the argument that respect for the democratic decision of the Northern Ireland Assembly justified refusing NHS abortion services in England to Northern Irish women, since the Assembly had no jurisdiction over what happened in England and had not expressed disapproval of women travelling for that purpose. On Article 14, he found no legitimate aim for the differential treatment and would have allowed the appeal.

Lady Hale agreed with Lord Kerr, emphasising that pregnancy is a special case and that autonomy, equality and dignity are core values underlying both domestic law and Article 8. She considered that denying Northern Irish women present in England the same access to abortion services as other UK women denied them equal treatment without justification.

Implications

The decision confirms that the statutory scheme of the NHS is structured on a devolved geographic basis, with each of the four nations of the UK responsible for providing free health services to its own residents. The Secretary of State’s power to direct otherwise existed but was not converted into a duty by section 3(1) of the 2006 Act, given the broad area of judgement afforded to him and the target nature of the section 1(1) duty.

The judgment affirms (following Carson) that place of residence, including residence within a devolved part of the UK, can amount to “other status” under Article 14 ECHR, but that differential treatment based on the devolved structure may be justified by reference to the legitimacy of devolved decision-making and the integrity of separate health systems within the UK.

The majority expressly considered that imposing the duty contended for would risk “health tourism” within the UK and from abroad and undermine the devolved structure of health services. The decision is closely tied to the statutory framework of the NHS in England as it stood in 2012 and to the particular policy reasons articulated by the Secretary of State. The dissenting judgments highlight unresolved tensions concerning autonomy, equality, and the practical position of women unable lawfully to obtain abortions in their home jurisdiction within the UK, but those concerns did not prevail. The case is significant for its treatment of devolved health provision, the limits of the Secretary of State’s duties under the 2006 Act, and the justification analysis under Article 14 in the context of intra-UK residence distinctions.

Verdict: Appeal dismissed by a majority of 3-2 (Lord Wilson, Lord Reed and Lord Hughes in the majority; Lord Kerr and Lady Hale dissenting). The Secretary of State’s failure to provide for women usually resident in Northern Ireland to undergo abortions free of charge under the NHS in England was held to be lawful, both as a matter of public law and under Article 14 ECHR taken with Article 8.

Source: R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41