In his ruling on A & Anor, R (on the application of) v Secretary of State for Health  EWHC 1364 (Admin) Mr Justice King held that the claimant, whose ordinary/usual residence was in Northern Ireland, was not entitled to access in England abortion services free of charge. Although the judgement has been welcomed by pro-life campaigners, it would be premature to regard this as a “landmark ruling” since the judgement is to be appealed. Furthermore, the significance of the case lies in its consideration of the provision of “secondary care services”: by Primary Care Trusts, (PCTs), within England and within the devolved administrations, as relevant to the instant case; and now by Clinical Commissioning Groups, (CCGs).
The ruling does not affect the application of the law relating to abortion per se in the UK or in Northern Ireland, and confirms the present understanding on access to free abortion services within the NHS, a position on which the claimant had been correctly advised by the Abortion Support Network, (a Northern Ireland voluntary organization), prior to arranging an abortion at a private clinic, an arrangement made without approaching the local NHS Primary Care Trust.
Furthermore, following changes in the law on 1 April 2013, the nationally determined decision-making powers and associated discretionary provisions on the delivery of certain services, including abortion, were devolved from the Secretary of State (and equivalent roles in Wales, Scotland and Northern Ireland), to the various local Clinical Commissioning Groups.
The Secretary of State for Health provided the court with the following information:
– Statistics for 2011 (the latest then available) on notifications to the Department of Health indicated: 6,151 abortions for non-residents were carried out in England in hospitals and clinics; 1,007 were residents of Northern Ireland; 4,149 were residents of the Irish Republic; in addition to 995 others, [para. 9];
– Of the 1,007 abortions carried out for residents of Northern Ireland, the vast majority were provided in fee charging independent private clinics. Only 5 were provided on the NHS, i.e. only 5 were provided free of charge in England, [para. 14];
However, a Factsheet produced by the Family Planning Association/Department of Health, Social Services and Public Safety, and the HSC Public Health Agency states
“[the Department of Health/ONS] figures, based on clients’ addresses, are an underestimation. It is widely accepted that many women give false addresses for fear of detection. The figure is probably nearer 2,000 per year.”
By comparison, data of the HSC Board indicate that in 2011/12, there were 35 terminations of pregnancy in Northern Ireland.
With regard to the costs involved, the court noted [para.10] that in October 2012, the cost of the termination to the claimant’s litigation friend. (her mother), at the independent Marie Stopes clinic was £600 plus travel costs, some £300, of which her mother had herself to contribute one half, the other half being provided by the Abortion Network. These costs are broadly in line with other information produced with reference to Northern Ireland.
The proceedings came before Mr Justice King as a rolled up hearing who summarized the substantive claim:
- This claim concerns the lawfulness of the extent of and limitations on the provision of abortion services by the National Health Service (‘NHS’) in England to a person present in England but ordinarily resident in Northern Ireland.
- The claim does not however involve any challenge to the law of Northern Ireland on abortion or the extent of the provision of abortion services in Northern Ireland. The clamant does not seek to challenge the law of Northern Ireland as inadequate or contrary to her rights.
- Nor does the claim involve a complaint that the claimant was not able to access abortion services in England as such. She was able to access such services, albeit they were those provided privately by an independent clinic, outside the NHS for a fee, and no obstacles were put in her way in this regard.
- The real complaint here is that the claimant was unable to access in England abortion services free of charge
The claimant at the material time was a 15-year-old girl, ordinarily resident in Northern Ireland, and in October 2012 with her mother she travelled to England to have her pregnancy terminated at an independent clinic. The court emphasized the mother’s misunderstanding of the legal position in England as regards access to abortion services on the NHS at the material time, noting:
– Unless the claimant were an emergency case, it is likely that she would have been denied treatment on the NHS: not because she was seeking an abortion as such; nor because she was a Northern Ireland resident as such; but because she was not ordinarily (or rather ‘usually’) resident in England (or more narrowly not ordinarily/usually resident in the area or of the local Primary Care Trust to which she went, [para.13].
In reviewing the relevant legislation, the court noted, inter alia, [our emphasis]:
– The proceedings concern directly the legislative framework/provisions under the National Health Service Act 2006 for the provision of medical/health services through the National Health Service in England, as distinct from in Northern Ireland, Scotland and Wales. The claim relates to the statutory provisions as they stood immediately before the 1st April 2013: new statutory arrangements for the commissioning and provision of services in England under the 2006 Act came into force on 1st April 2013;
– The defendant was sued in his capacity as the Secretary of State for Health for England, who was under the general duty in section 1 of the 2006 Act;
– New statutory arrangements for the commissioning of and provision of services under the 2006 Act came into force on the 1st April 2013. Under the new regime the CCGs [Clinical Commissioning Group] are in a slightly different position than were PCTs [Primary Care Trusts] vis-à-vis persons ordinarily resident in Northern Ireland, Scotland and Wales, and decision-making as to the appropriate provision of certain services, including abortion services, has been devolved from the Secretary of State to the CCGs;
– The Health Policy within Northern Ireland is a ‘transferred matter’ under section 4, Northern Ireland Act 1998; and the criminal law itself in Northern Ireland is also devolved.
Addressing the grounds for challenge, Mr Justice King outlined the sole remedies sought in the claim as: “‘Declarations … that the policy adopted and explained by the defendant is unlawful either because it leads to an unlawful exercise of the defendant’s functions under the NHS Act (both before and after April 2013) and/or because the policy is incompatible with the claimant’s Convention rights,“ [para. 34].
With regard to the claim of “an unlawful policy leading to a breach of the section 3 duty (and the unlawful exercise of the defendant’s functions under the 2006 Act post April 2013)”, the judge made his analysis “based on the separation of powers between the health services in the four jurisdictions of the UK in my judgment is as applicable to the new statutory regime since April 2013 as it is to that prevailing previously”, [para.60].
He concluded: in principle, the approach taken by the defendant under section 3, complained of in these proceedings, to be entirely lawful; and the fact that abortion services in Northern Ireland are available on a much more limited basis because of the state of the criminal law in Northern Ireland cannot render that judgment of the defendant under section 3 a perverse one, [paras. 55, 57 and 58]. In addition, there is nothing unlawful in the defendant adopting the express policy “that in general the NHS should not fund services for residents of Northern Ireland which the Northern Ireland Assembly has deliberately decided not to legislate to provide, and which would be unlawful if provided in Northern Ireland”; and “[it cannot] be said in my judgment that the adoption of such policy has unlawfully fettered the discretion of the defendant”, [paras 59 and 60].
With regard to human rights issues, Mr Justice King held that “on proper analysis [he did not] consider that the human rights basis of challenge to the policy [could] succeed”.
“The challenge is in effect a submission that the denial of the claimant as an ordinary resident of Northern Ireland to access abortion services provided by the NHS in England, amounts to a breach of the Article 14 prohibition of discrimination. As the claimant was not denied in England access to abortion services compliant with the Abortion Act 1967, albeit in a fee charging private clinic, the challenge amounts to a submission that the denial to her in England as an ordinary resident of Northern Ireland of access to a state-funded abortion amounts to a breach of Article 14”, [para.62].
It was acknowledged that there were no procedural deficiencies; the claimant was entitled to and did access abortion services in England (at the independent clinic approved by the defendant), albeit not state funded. Furthermore, there is no suggestion in the case–law of the European Court of Human Rights that the State is required to fund abortion services and no submission that this was so was made: in the Court of Appeal judgments in R (Condliff) v North Staffordshire Primary Care Trust  PTSR 460, in particular at paragraphs 41-50, (as well as Wiater v Poland ECHR 917), these authorities go to show only how limited is any positive obligation on the State to provide or fund health care services of any description. Consequently, an Article 14 challenge could not succeed in the absence of any convention right to a state funded abortion and any procedural defects in gaining access to abortion services.
Whilst on the facts before him King J is right, the issue that remains undecided is whether or not the fact that A could not get an abortion in NI on the same terms as a resident of GB breached Article 8 and Article 14 ECHR, but that was not an issue before the court. At paragraph 21, the judge stated
“It must . . . be for a matter peculiarly for the Northern Ireland Assembly whether to amend the law governing the availability of abortion in Northern Ireland, the assembly being accountable to the electorate of Northern Ireland for its decisions in this regard, and if abortion in Northern Ireland did become lawful in a greater range of circumstances, it would again be for the Northern Ireland authorities to decide to what extent these wider abortion services should be provided free of charge by the health service there”.
Last December, our post Reforming abortion law in Northern Ireland? reviewed the situation in Northern Ireland following the announcement on 8 December by David Ford MLA, Minister of Justice and Leader of the Alliance Party, that he hoped to issue a consultation document for the “potential for change” of the law by Easter 2014, although he anticipated that this would only apply to a narrow range of cases.
Along with the enquiries received on this site, we await this consultation with interest.
 The contemporary (i.e. updated October 2012) Factsheet on abortion practice and provision in Northern Ireland, produced by the Family Planning Association, the Department of Health, Social Services and Public Safety, and the HSC Public Health Agency states: “Securing an abortion in England costs around £600 if the woman is under 14 weeks pregnant, rising to around £2,000 if the pregnancy is further advanced. This includes medical fees and travel expenses . . . If accompanied by a friend, relative or partner, the cost can increase by around £200 to cover travel and accommodation expenses.
 There are two claimants in this case: A, who is a minor, and B who is her mother. For ease of reading, A is referred to throughout as the claimant and B is referred to as her mother or litigation friend.
 The Welsh ministers are subject the duty in section 1, National Health Service (Wales) Act 2006, imposing a duty on in relation to the people of Wales; and the (NI) Department of Health, Social Services and Public Safety, as it now is, under Art 4 of the Health and Personal Services (Northern Ireland) Order 1972 in relation to the people of Northern Ireland.