On appeal from [2015] EWCA Civ 771

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 8.

The Supreme Court held by 3-2 majority: that the Secretary of State was not compelled to provide abortion services to UK citizens usually resident in Northern Ireland, and that the respondent 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 that the issue was within the scope of the 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. A fair balance had been struck when considering the overall scheme for separate provisions of free health services. Lord Kerr and Baroness Hale gave dissenting judgments. 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, and as such it did not impinge on the democratic decision of the Northern Ireland administration. Baroness Hale agreed with this and furthered her argument on the grounds of the fundamental common law values of autonomy, equality and human dignity.

For judgment, please download: [2017] UKSC 41
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (2 Nov 2016 morning session) (2 Nov 2016 afternoon session)