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Judgment in this case was handed down on 14 June 2017.sjovoll_k_bw_indmem

Background

The appeal considered whether the Secretary of State’s failure to exercise his power to require that abortion services be provided through the NHS in England – to women ordinarily resident in Northern Ireland – was unlawful. The question was whether he failed to discharge his duty under the National Health Service Act 2006, s 3 to “take such steps as he considers necessary to meet all reasonable requirements” for services. It also considered whether the continuing failure to provide such abortion services infringed ECHR, art 14 in conjunction with art 8.

Court of Appeal decision

The Court of Appeal held ([2015] EWCA Civ 771) that the Secretary of State was entitled, as part of his general powers to provide for the functioning of the NHS in England, not to make any provision for the free, lawful termination of pregnancies in England for those women who were citizens of the UK but who were usually resident in Northern Ireland.

Supreme Court judgment

The appellants appealed to the Supreme Court on two grounds. The first was that the failure to make provision for free abortions in England was unlawful in public law because the respondent: (a) took into account an irrelevant consideration when exercising his power; (b) took a decision which was irrational; and (c) had a duty, not merely a power, to make such provision. The second ground of appeal was that the decision was unlawful because it breached the appellants’ rights under ECHR, arts 8 and 14.

The Supreme Court agreed with the Court of Appeal by a 3-2 majority (Baroness Hale and Lord Kerr dissenting) and dismissed the appeal on both grounds. In particular, the Secretary of State was entitled to respect to the democratic decision of the devolved administration in Northern Ireland and to acknowledge the ability to purchase private abortions. On the issue of human rights, the majority accepted – and by the time of the hearing was no longer disputed by the respondent – that the issue was within the scope of ECHR, art 8, in relation to autonomy and dignity rights. However, the Court concluded that the appellant’s rights under the ECHR, arts 8 and 14 were not breached. It accepted that there was discrimination on the grounds of usual residence but held that it was justified. In short, the majority concluded that the Secretary of State was entitled to exercise his discretion in such a way as to respect to the different choices of the devolved legislatures. Their decision to restrict the availability of abortions was for them, as a devolved power, to take and the Secretary of State was entitled to not interpret the law in England in a way that might interfere with or restrict those choices.

Lord Kerr and Baroness Hale dissented from the majority. Lord Kerr argued that it was not a question of the law in Northern Ireland, but rather the law of England when the women were in England. As the women were usually resident in England and so entitled to NHS services, it did not impinge on the democratic decision of the Northern Ireland administration to restrict access to abortions to its own residents. Baroness Hale agreed with this. She furthermore argued that these were fundamental questions of democracy and autonomy. As she put it at paragraph 93: ““the right of pregnant women to exercise autonomy in relation to treatment and care has been hard won but it has been won”.

The Court also considered the relevance of international conventions and soft law to its interpretation of Convention case law. The appellants relied on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which requires the UK – as a party – to “ensure to women appropriate services in connection with pregnancy […], granting free services where necessary.” They also relied upon CEDAW General Recommendation No. 24, issued in 1999, that recommended as part of its elaboration on Article 12 that “[w]hen possible, legislative measures criminalising abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion.” They relied on similar provisions in General Comment No 22 (2016) of the UN Committee on Economic, Social and Cultural Rights. The Court placed very little weight on the international law materials relied upon. Whilst accepting that such materials were relevant to the interpretation of the ECHR, the majority held that:

“at its highest one can say only that there is a trend in some of the international material to which the current law in Northern Ireland runs counter. The trend adds background colour to the inquiry into fair balance under the Convention”. [35]

However, the appellants needed material “of a far more vivid hue” if it was to tip the balance against the Secretary of State’s decision. It furthermore held that the authorities of the committees relied upon by the appellants was “slight” as a matter of international law, relying on Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 at [23].

Comment

The decision of the majority sits uneasily with the position as it would be for other English citizens ordinarily resident in Northern Ireland, who seek treatment through the NHS for other illnesses. As Lord Kerr remarked:

“[a] woman from Northern Ireland visiting England who suffers an acute attack of appendicitis will have, if it proves necessary, her appendix removed in a National Health Service hospital, without charge.”

Why, then, should the position be different for the same woman seeking a lawful abortion in England? While there are undoubtedly legitimate concerns about interference with devolved matters such as healthcare, it is difficult to see why a challenge to the ability of a Northern Irish woman, otherwise entitled to treatment on the NHS while in England, should be in a different position because what she seeks is an abortion. The distinction becomes weaker still when one considers that – contrary to the position in Northern Ireland – it is not unlawful for that women to seek the abortion itself; the only requirement being that she must pay for it. The judgment is also interesting in its analysis of the weight to be given to international law when interpreting Convention rights. The point was not picked up by the minority but it appears that for those seeking to rely on International Conventions and “soft law” interpretative materials, there is a high threshold to meet before it will form part of the domestic courts’ analysis of its obligations under the Convention.