R (on the application of A & Anor) v Secretary of State for Health  EWHC 1364 (Admin)
The restriction on the availability of abortion services on the NHS in England for persons resident in Northern Ireland was not unlawful and not subject to any fetter on the discretion of the Defendant.
8 May 2014
Queen’s Bench Division, Administrative Court
(1) This was a rolled up hearing in which the Court granted permission and issued judgment on the substantive claim. There were two Claimants in this case, A (the first Claimant), a minor, and B, her mother. Their challenge concerned the limitations of the provision of abortion services by the NHS in England to a person in England who is normally resident in Northern Ireland. In October 2012, the first Claimant, travelled with her mother to England to have an abortion at a private clinic at the cost of £600 plus £300 travel costs. The first Claimant did not approach the NHS in England, but the Defendant conceded that it was likely that she would have been refused treatment had she done so.
(2) The primary claim was that the first Claimant was unable to access abortion services in England free of charge. The Abortion Act 1967, which liberalised the position as to abortion in England and Wales, expressly not did not extend to Northern Ireland. The law in Northern Ireland is still governed by the Offences Against the Persons Act 1861, making it an offence to procure an abortion, unless performed for the purposes of the preservation of the life of the mother.
(3) The Claimant sought declarations that the policy adopted by the Defendant of excluding residents in Northern Ireland from access to abortion services in England was unlawful because it led to an unlawful exercise of the Defendant’s functions under the National Health Service Act, and/or it was incompatible with the first Claimant’s rights under the ECHR.
(4) The Claimants focused on the Defendant’s failure to discharge his duty under section 3 of the National Health Service Act to make an exception to the residence based system for residents of Northern Ireland, in order to require that they have access to abortion services in England in circumstances other than the emergency circumstances currently allowed for. The Defendant accepted that prior to April 2013, he had the means to create that requirement, but contended that he did not do so for justifiable reasons. Although the power to make exceptions ended in 2013, the Defendant accepted that he still had an overriding responsibility for the Health Services in England, including powers to direct the provision of certain services.
(5) The Claimants also argued that irrelevant considerations had been taken into account, namely the unavailability and unlawfulness of services in Northern Ireland, when the primary consideration should have been the clinical needs of the women seeking the service.
(6) The Claimants also contended that the first Claimant had been discriminated against on the basis of her place of residence, which she argued fell within the concept of a personal characteristic or status, and therefore amounted to a breach of her Article 14 ECHR rights not to be discriminated against. The basis of the claim for discrimination was that she had been treated differently to all other citizens of the UK in relation to access to state funded abortions, and the Defendant could not objectively and reasonably justify that difference in treatment.
(7) HELD: The Court found that there had not been any unlawful policy. The duty imposed by the National Health Service Act 2006 did not require the Defendant to meet all requirements for health services, but rather to assess whether the requirement (or exception) was reasonable and what, if anything, was needed to meet that requirement.
(8) The Defendant was entitled to have regard to the statutory position that for those resident in Northern Ireland, the primary responsibility lay with the health service in Northern Ireland. The Court noted that Northern Ireland had devolved power to make a determination as to the provision of abortion there, but the lawfulness or unlawfulness of that policy did not render the residence requirement in England perverse. There could be no objection to the residence based principle.
(9) The Court also considered that the Defendant’s discretion was not unlawfully fettered. The Defendant was entitled to adopt the policy he had, and was free to change that policy at any time. The Court thus concluded that the policy was not unlawful on the basis of it being an unlawful exercise of the Defendant’s statutory functions under the NHS Act.
(10) Nor did the Court find there to be any human rights based error in the policy. The Court found that there was no deprivation of the opportunity for the first Claimant to receive abortion services, as she had in fact obtained such services. There was no convention right to a state funded abortion, and the Court held that the Article 14 challenge thus failed. Even if Article 14 were engaged, the Court found it dubious that there would be discrimination on the basis of status as the Claimant would, in an emergency, have been given access to abortion services on the NHS in England. In any event, the Court found that there would have been an objective and justifiable basis for any discrimination, due to the division of responsibility for health care services throughout the UK, and the justifiable residence requirement.
(11) The claim thus fell to be dismissed.
 – No unlawful policy.
 – Defendants’ assessment.
 – No objection residence based principle.
 – Not perverse.
 – No fettering.
 – Residence lawful.
 – Article 14 failed.
 – Justifiable.
 – Conclusion.