R v Secretary of State for Health

The statutory scheme governing the NHS in England did not require the Secretary of State to arrange free abortion services for UK citizens usually resident in Northern Ireland. He could respect Parliament’s scheme of locally provided health services and Northern Ireland’s democratic settlement.

Residence in a constituent part of the UK is an “other status” under article 14 of the Convention when a single law or administrative arrangement differentiates between residents and non-residents. Such differential treatment requires justification. Here it pursued the legitimate aim of maintaining devolved health provision, was rationally connected to that aim and struck a fair balance. The court itself must determine fair balance; the “manifestly without reasonable foundation” criterion does not govern that stage.

A, a 15-year-old resident of Northern Ireland, travelled to England for a lawful abortion. Because the NHS did not fund the procedure, A and her mother, B, incurred substantial costs. They sought judicial review of the Secretary of State’s failure to direct that NHS abortion services in England be provided free to UK citizens usually resident in Northern Ireland.

King J dismissed the claim in [2014] EWHC 1364 (Admin). The Court of Appeal dismissed the appeal in [2015] EWCA Civ 771, [2016] 1 WLR 331.

The Supreme Court considered whether the failure to exercise the direction-making power was unlawful under the National Health Service Act 2006 or ordinary public law, and whether the resulting residence-based difference in treatment violated article 14, read with article 8, of the Convention.

1. Appeal dismissed by a majority of three to two. Lord Wilson gave the leading judgment, with which Lord Reed and Lord Hughes agreed. Lord Kerr and Lady Hale dissented.

2. The National Health Service Act 2006 established a territorially organised scheme. Section 1(1) directed the Secretary of State towards improving the health of people living in England. Section 3(1) left a broad area of judgment concerning the extent necessary to meet reasonable requirements. Although the Secretary of State could have directed primary care trusts to provide free abortion services to UK citizens usually resident in Northern Ireland, the statutory power did not become a duty to do so.

3. The refusal was neither based on an irrelevant consideration nor irrational. The Secretary of State could follow Parliament’s scheme under which separate authorities provided free health services to residents of each constituent country. He could also respect Northern Ireland’s democratic decision concerning abortion law and decline further to alter its consequences by funding abortions in England.

4. The funding decision fell within the scope of article 8 because it could profoundly affect personal autonomy in an intimate area of private life. Usual residence in Northern Ireland, combined with UK citizenship and presence in England, was an “other status” under article 14. Lord Reed explained that a law or administrative arrangement differentiating between residents and non-residents uses personal status even within a devolved state. This differs from the mere application of different regional laws according to a person’s location.

5. The difference in treatment was justified. Maintaining a legitimate scheme of devolved, locally provided health services was a legitimate aim. The decision was rationally connected to that aim and no less intrusive decision was available consistently with it. It also struck a fair balance between the affected women’s rights and the community interest in territorial health provision. The court had to decide fair balance for itself; “manifestly without reasonable foundation” was not the applicable criterion at that stage. International materials favouring wider abortion access supplied background context but did not outweigh the domestic statutory and democratic settlement.

6. Lord Kerr and Lady Hale would have allowed the appeal. They considered section 1(1)(b) and section 3 to impose a geographically framed duty to provide services in England without limiting beneficiaries to English residents. They also regarded the differential treatment as unjustified, emphasising autonomy, equality and dignity.

1. United Kingdom Supreme Court: By a majority of three to two, dismissed the appeal and affirmed the Court of Appeal’s decision: [2017] UKSC 41.

2. Court of Appeal: Dismissed the appeal from King J: [2015] EWCA Civ 771, [2016] 1 WLR 331.

3. High Court, Administrative Court: King J dismissed the claim: [2014] EWHC 1364 (Admin).