UKSC: Failure of Health Secretary to provide Northern Ireland residents free abortions not discriminatory

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Delivering the leading majority judgment of the Court, Lord Wilson held that the failure of the Secretary of State for Health to make a direction under the National Health Service Act 2006, directing that the function of providing abortion services should be exercised by primary care trusts for the benefit of all citizens and residents of the UK, was a decision which struck a fair balance between the woman’s rights and the interests of the UK community as a whole.

Accordingly, the difference in treatment was justified and did not amount to discrimination.

Legislative structure

In Northern Ireland, the criminal law relating to abortion falls within the legislative competence of the Northern Ireland Assembly by virtue of section 4(1) of the Northern Ireland Act 1998.

In England, Wales, and Scotland, section 1 of the Abortion Act 1967 provides a medical termination of pregnancy is lawful in four specified circumstances; however, the Abortion Act 1967 does not extend to NI.

In NI, a termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and permanent or long-term (as per Family Planning Association of Northern Ireland v Minister for Health and Social Services and Public Safety NICA 37).

On behalf of the woman, it was argued that the Health Secretary’s failure to provide a UK citizen usually resident in Northern Ireland to be entitled to undergo an abortion free of charge under the NHS in England was unlawful, both in public law and because it was in breach of their human rights.

Majority judgment

Rejecting the public law challenge, Lord Wilson stated that it was a decision made by Parliament that separate authorities in each of the four countries in the United Kingdom should provide free health services to those usually resident there.

The Secretary of State for Health was therefore entitled to make a decision in line with this parliamentary scheme for local decision-making and the devolved scheme for health services; and was ‘entitled to afford respect to the democratic decision of the people of Northern Ireland not to fund abortion services’.

Lord Wilson concluded that the human rights challenge (Article 14 ECHR taken in conjunction with Article 8 ECHR) failed as the difference in treatment was justified – the 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.

The Health Secretary’s decision did not amount to discrimination as it ‘struck a fair balance between the appellants’ rights and the interests of the UK community as a whole and, accordingly, was justified’.

Concurring with Lord Wilson, Lord Reed was satisfied that there were numerous decisions emanating from Europe, in which differential treatment based on a person’s not having a right of residence in the country concerned, or on his being a resident of a foreign country, was held to fall within the scope of article 14 (e.g. Carson v United Kingdom 51 EHRR 13).

No question arose in Carson as to whether a person’s residence or non- residence in a constituent part of a country with a federal or devolved constitution was an “other status”, however in Magee v United Kingdom (2000) 31 EHRR 35 it was noted that “… in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas. Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual’s location at the time.

Lord Reed also considered cases concerned with situations in which a national law or administrative arrangement resulted in the differential treatment of people in different parts of the country concerned. Providing examples such as Lindsay v United Kingdom (1979) 15 DR 247; Gudmundsson v Iceland (Application No 23285/94); Orion-Břeclav SRO v Czech Republic (Application No 43783/98); Posti v Finland (2003) 37 EHRR 6; and Alatulkkila v Finland (2005) 43 EHRR 34 – Lord Reed noted that consideration was focused on whether the differential treatment was justified, without separately addressing the question whether it was based on “other status”, within the scope of Article 14.

Lord Reed was satisfied that differential treatment of residents and non-residents of a particular part of the UK did not necessarily entail that such treatment is in violation of Article 14; but that it had to be justified.

Dissenting judgments

Lord Kerr would have allowed the appeal, stating that NI residents ‘who seek an abortion in England are being treated “for the prevention…of illness” under section 1(1)(b) as allowing an unwanted pregnancy to continue to term carries a risk of physical or mental injury’ – consequently, the Health Secretary was wrong in failing to exercise his power under the National Health Service Act 2006.

Allowing these abortions to take place on the NHS would not alter the democratic decision of the NI Assembly.

Further, Lord Kerr would have held that no legitimate aim existed for the interference with Article 8; allowing Northern Irish women abortions on the NHS would not compromise the scheme of local provision of medical services; and neither democratic deference to the NI Assembly nor cost could qualify as legitimate aims.

Agreeing with Lord Kerr, Lady Hale added that ‘if the requirements of the Abortion Act 1967 were complied with then it was a reasonable requirement under section 3 of the National Health Service Act 2006 that Health Secretary provide a woman with a service, wherever she comes from’, and that the NHS could not charge women from the United Kingdom for the service.

Conclusion

The majority of the Court agreed that neither sections 1 and 3 of the National Health Service Act 2006, nor the human rights of UK citizens, generated a duty on Secretary of State for Health to provide abortion services in the circumstances discussed.