A (A Child) & Anor, R (On the Application Of) v Secretary of State for Health

The Secretary of State was not required under the qualified duty in the National Health Service Act 2006 to extend free NHS abortion services to women ordinarily resident in Northern Ireland. Section 3 gives a broad judgment as to reasonable requirements, informed by section 1’s focus on a comprehensive service for people of England. A residence-based scheme reflecting devolved responsibility and public expenditure was not Wednesbury irrational.

Funding abortion for some women can fall within the ambit of Article 8 and engage Article 14, even though Article 8 creates no general right to abortion or publicly funded healthcare. However, the state of abortion law in Northern Ireland is not a personal characteristic or other status under Article 14. In any event, the exclusion was objectively justified.

The appellants were a 15-year-old girl and her mother, both resident in Northern Ireland. The girl travelled to Manchester for a privately funded abortion. They challenged the Secretary of State’s failure to use his power to make NHS abortion services in England available free of charge to Northern Irish residents.

They relied on irrationality under section 3 of the National Health Service Act 2006 and discrimination under Article 14 read with Article 8. Mr Justice King granted permission but dismissed the claim: [2014] EWHC 1364 (Admin). The appeal concerned whether the residence-based policy was unlawful or whether Convention rights required an exception.

The appeal was dismissed unanimously. Elias LJ gave the leading judgment, with McCombe LJ and Moore-Bick LJ agreeing.

1. Public law challenge. Section 3 of the National Health Service Act 2006 imposed a qualified duty. The Secretary of State had a wide discretion to assess reasonable requirements and the means of meeting them, subject to the comprehensive-service duty in section 1. Relying on R v North and East Devon Health Authority ex parte Coughlan [2001] QB 13, the court held that it was rational to organise NHS provision principally by ordinary residence and local responsibility.
2. There was no obligation to use the available powers to provide free abortions to women resident in Northern Ireland. The constitutional division of responsibility between the United Kingdom’s constituent administrations, together with the cost to English taxpayers, provided a rational basis for refusing the requested extension.
3. Convention issues. Article 14 is not freestanding and applies only where the impugned treatment falls within the ambit of another Convention right, although infringement of that right is unnecessary. The ambit of Article 8 is broad. Once the State permits and funds abortions for some women, rules governing access may engage Article 8 and Article 14, even though Article 8 creates no general right to abortion or publicly funded healthcare.
4. The state of abortion law in Northern Ireland was not a personal characteristic or other status for Article 14 purposes. Residence might in principle constitute other status, but the geographical difference between the laws of constituent parts of the United Kingdom did not do so. The Thlimmenos principle did not assist the appellants; they sought inclusion within, rather than exemption from, the general residence rule. In any event, the distinction was objectively and reasonably justified.
5. Unincorporated international instruments, including CEDAW, did not require English authorities to circumvent or mitigate Northern Ireland’s abortion law by providing free services in England. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division) dismissed the appeal on 22 July 2015.
2. High Court of Justice, Administrative Court granted permission for judicial review but dismissed the claim: [2014] EWHC 1364 (Admin).