R (on the application of A) (A Child) (by her litigation Friend B) (AP) (Appellant) v Secretary of State for Health (Respondent) UKSC 2015/0220

On appeal from the Court of Appeal Civil Division (England and Wales)

Issues

(i) Was the Secretary of State for Health’s failure to exercise his power to require that abortion services be provided through the NHS in England to women ordinarily resident in Northern Ireland unlawful, in that he failed to discharge his duty under s3 of the NHS Act 2006 to “take such steps as he considers necessary to meet all reasonable requirements” for services?

(ii) Does the continuing failure to provide abortion services free of charge in England to women ordinarily resident in Northern Ireland infringe Article 14 and Article 8 of the European Convention on Human Rights?

Facts

In 2012, A, a young woman of 15 resident in Northern Ireland, fell pregnant. In order to obtain an abortion, she used the services of a private clinic in England with B, her mother (and her litigation friend in these proceedings), at a total cost of £900 (including travel).

She did so because she reasonably believed that abortion services would not be available to her in Northern Ireland or through the NHS in England because she was ordinarily resident in Northern Ireland. The Abortion Act 1967, which liberalised the law of abortion, does not extend to Northern Ireland.

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, save in exceptional cases, he had not exercised that power at the material time and has not done so since. A brought proceedings for judicial review. She contended that the failure to exercise the Secretary of State’s power and the continuation of the exclusionary policy applicable (inter alia) to women ordinarily resident in Northern Ireland was unlawful. The claim was dismissed and the Court of Appeal dismissed the appeal.