The Court of Appeal has upheld the policy of the Secretary of State for Health not to allow NHS abortions for women who travel to England and Wales from Northern Ireland. The appeal brought by a teenage girl and her mother who live in Northern Ireland was dismissed.

The background

In R (A (A Child) & Anor ) v Secretary of State for Health [2015] EWCA Civ 771 the appellants were a 15-year-old girl and her mother, resident in Northern Ireland. The girl came to Manchester to have her pregnancy terminated at an independent clinic at a cost of £600. The mother said that it would have significantly reduced the trauma and stress for both her daughter and herself if they had known from the outset that they could travel to the Great Britain and obtain the service free of charge. The Secretary of State conceded that they would almost inevitably have been refused an NHS abortion had they sought one; he also conceded that he did, as a matter of fact, have the power to require abortions to be provided to women from Northern Ireland on the same basis as to women in England [4].

The appellants relied on both public law and Convention arguments. They submitted that the Secretary of State had failed properly to discharge his duty to “take such steps as he considers necessary to meet all reasonable requirements” under s 3(1a) National Health Service Act 2006 by refusing to provide (or at least enabling Primary Care Trusts to provide) free abortion services to those resident in Northern Ireland. The flow of women from the Province seeking abortion established a “reasonable requirement” that could only be met by making such services available to them. No reasonable minister properly directing himself, it was argued, could have reached any other conclusion but that he should provide free abortions on the NHS for women from Northern Ireland; and the stringent irrationality test under Wednesbury was therefore`satisfied.

The response of the Secretary of State to the letter before action had stated that it was:

“the policy of the Government …. 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” [23].

Counsel for the applicants submitted that that had been an improper consideration: not only did it make no sense to rely upon the illegality of abortion in Northern Ireland to justify refusing to provide the service free on the NHS in England, the lack of abortion services in Northern Ireland was a decisive argument in favour of providing them in England [24].

The judgment

Elias LJ noted that abortion services were not available to women from Northern Ireland

“… not because they were singled out by the Secretary of State for less favourable treatment. It is a consequence of the decision to provide services for UK citizens on the basis of residence. The appellant would not have been eligible for the service in Manchester had she lived in Wales or Scotland (or, indeed, in other health regions within England)” [25].

“So on what basis can it be said that free abortions should be provided to women resident in Northern Ireland? … The broadest [ground] is that the service should be provided whenever a free abortion is not available to the woman in her own country. But that would require opening up the health service in England to a potentially vast array of people from all over the world. Moreover, it is not obvious why abortion should be selected in preference to other forms of health treatment…” [26].

“A more limited basis … is that the Secretary of State should act where abortion is not legal in the woman’s place of residence. But that would not justify it being provided free of charge, and access is already available if the woman goes to a private clinic. Moreover, if the law were to require provision free of charge in such circumstances, that would mean that the Secretary of State would have to provide the service without charge to a large number of women from the Republic of Ireland, almost five times as many as come from Northern Ireland. It is not irrational for the Secretary of State to be unwilling to adopt that policy” [27]

“The narrowest basis … is that women from Northern Ireland constitute a special case both because abortion is (save exceptionally) illegal where they live, and because they are denied the right to free abortion as citizens of the UK, notwithstanding that other women throughout the UK can obtain those services. The Secretary of State should therefore have used his powers to place these women in precisely the same situation as women from England and indeed all other parts of the UK. He should have provided the service which the Northern Ireland government was not prepared to provide, and indeed could not legally provide’ [28].

He did not accept that argument: it was “entirely logical” to provide NHS services throughout the UK on the basis of local residence requirements and it was for the Secretary of State to decide what was a “reasonable requirement” in section 3 and whether it was necessary to meet it [29].

As to the argument that the decision violated Article 14 ECHR (discrimination) read in conjunction with Article 8 (private and family life), he accepted that the denial of the right to a free abortion, thereby putting stress and pressure on women and sometimes on their relatives who could not afford to pay, engaged Article 8(1) even if readily justifiable under Article 8(2). Moreover, once a state had agreed to fund abortions for some women, it was conferring a right falling within the ambit of Article 8 because it bore directly on personal autonomy. The rules determining who should receive the free service and who should be excluded might therefore engage the discrimination principle in Article 14 [46].

However, he had no doubt that the Secretary of State was entirely justified not to make an exception for women from Northern Ireland and to take the view that free services should be provided principally to those in England and that it was for the constituent governments of the UK to determine what services they provided to their own residents [51]. He rejected the submission that the Secretary of State should make additional funds available for one particular type of health provision – abortion – and for one particular group of persons: nor did he accept that this was one of the very exceptional circumstances where the state was under a positive Article 8 duty to provide a benefit free of charge [52].

Appeal dismissed.