In 2012 a girl from Northern Ireland travelled to England for an abortion that was lawful there. She and her mother had to raise the cost privately. Their case asked whether the Secretary of State for Health had a duty to make that treatment available free on the English NHS. It concerned the funding arrangements in force in 2012.
Why the claim was brought
At the time of the claim, the Abortion Act 1967 permitted terminations in specified circumstances in England, Wales and Scotland. It did not extend to Northern Ireland, where the lawful grounds were then much narrower. A and B challenged the funding of treatment in England. They did not ask the Court to change Northern Ireland’s criminal law.
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The evidence showed how charges for the procedure, travel and accommodation could delay treatment or place it beyond reach. Those practical effects mattered to the discrimination claim.
A was 15. With her mother B’s support, she obtained a lawful termination at a clinic in England in October 2012. The trip and treatment cost about £900, which they met through charitable assistance and borrowing.
The power he did not use
The claim concerned the NHS in England before its reorganisation on 1 April 2013. Section 1 of the National Health Service Act 2006 required the Secretary of State to promote a comprehensive health service designed to improve the physical and mental health of “the people of England” and the prevention, diagnosis and treatment of illness. King J had called this a target duty, aimed at improvement. Lord Wilson read “the people of England” as the people who live in England. The matching scheme elsewhere was that each part of the UK provides services for the people who live there.
Section 3 gave the Secretary of State considerable discretion over the services necessary to meet reasonable requirements. Primary care trusts generally served people on local GP lists or usually resident in their area. The appellants argued that the Secretary of State could use his powers to make provision for a further group.
He accepted that he could have directed the trusts to provide services to UK citizens and residents present in their areas. The appeal proceeded on the assumption that such a direction would have led to free treatment. The dispute was whether the power had to be used.
Public law
A and B argued that usual residence could not justify the policy. A was a UK citizen seeking treatment which the English NHS recognised as reasonably required for women living in England. The Secretary of State also knew that women in A’s position generally could not obtain that treatment at home.
Lord Wilson, like the courts below, rejected that argument. Parliament’s scheme was that separate authorities in each of the four countries provide free services to people usually resident there. The Secretary of State could decide in line with that scheme and with his statutory target.
Lord Wilson considered it legitimate to respect Northern Ireland’s democratic arrangements when deciding what the English NHS should fund. Women could lawfully travel to England for private treatment. In the majority’s view, the Secretary of State was entitled to stop short of paying for it from the English health service.
Human rights
The appellants also relied on article 14 of the European Convention, which requires Convention rights to be secured without discrimination on grounds including national origin or other status, together with article 8, respect for private and family life. B’s claim depended on A’s. The Secretary of State accepted that a decision whether to provide abortions free of charge falls within article 8. Article 8 does not itself confer a right to abortion, but restrictions on abortion can still affect private life.
Lord Wilson accepted that usual residence in Northern Ireland was a personal characteristic falling within article 14. The comparison was between UK citizens usually resident in Northern Ireland who were present in England and women usually resident in England. They received different treatment. Whether that difference was justified was a separate question.
Lord Wilson held that it was. The aim was to stay loyal to a legitimate scheme of devolved health services and local provision for residents of each country. The decision was connected to that aim, and no less intrusive decision would have served it. On fair balance the court had to decide for itself. International materials urging liberalisation of abortion laws showed, at most, a trend running against the law in Northern Ireland. They did not outweigh loyalty to separate health services and to the democratic decision there. There was therefore no breach of article 14.
Lord Reed, with whom Lord Hughes agreed, added that treating residents of one part of the UK differently from non-residents is a difference based on status, whether it comes from Westminster legislation, devolved legislation or an administrative arrangement, and must be justified. That is distinct from the mere existence of different laws in different parts of a state, which is not itself discriminatory.
The dissent
Lord Kerr would have allowed the appeal. In his reading of the 2006 Act, some statutory objectives referred to people living in England, but the prevention, diagnosis and treatment of illness did not carry the same residence limit. He considered that treatment to avert the risks of continuing a pregnancy could fall within that objective.
For Lord Kerr, funding treatment that was lawful in England would leave both Northern Ireland’s criminal law and its responsibility for services there intact. He therefore rejected respect for devolution as a justification for the English policy. Cost had not been advanced as the Secretary of State’s reason.
Lady Hale also dissented. She emphasised autonomy, equality and dignity in deciding what services were reasonably required. Northern Ireland’s criminal law at the time did not prevent women travelling to England for lawful treatment. In her view, it did not justify the difference in access to NHS funding there.
Verdict: By three votes to two, the Supreme Court dismissed the appeal. The Secretary of State’s decision under the 2012 arrangements was lawful and the difference in treatment was justified under article 14 read with article 8. Lord Kerr and Lady Hale dissented.
Source: R (A and B) v Secretary of State for Health [2017] UKSC 41
