Family Planning Association of Northern Ireland v The Minister of Health, Social Services and Public Safety
| Jurisdiction | Northern Ireland |
| Judge | Nicholson LJ |
| Judgment Date | 08 October 2004 |
| Neutral Citation | [2004] NICA 39 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 08 October 2004 |
| Year | 2004 |
Neutral Citation No. [2004] NICA 39 Ref:
NICC5061
Judgment: approved by the Court for handing down Delivered:
8.10.04
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN:
FAMILY PLANNING ASSOCIATION OF NORTHERN IRELAND
(Appellant);
and
THE MINISTER FOR HEALTH, SOCIAL SERVICES AND
PUBLIC SAFETY
(Respondent).
________
NICHOLSON LJ
Introduction
[1] This is an appeal from the decision of Kerr J (now the Lord Chief
Justice) on 7 July 2003 whereby he dismissed the application for judicial
review brought by the Family Planning Association of Northern Ireland
(hereafter referred to as the appellant or FPANI). It is an association which
for 20 years has provided a service for women in Northern Ireland faced with
unwanted pregnancies. This service gives counselling, information and
support. They claim that it is non-directive. For the purposes of this case I
propose to act on that statement.
[2] The respondent is named as the Minister for Health, Social Services
and Public Safety (formerly Health and Social Services) whose department is
responsible for the provision of health services and personal social services in
Northern Ireland. The Secretary of State is now the appropriate person to
answer for the department as the respondent to the appeal. Hereafter I refer
to the respondent or the department. Leave to intervene was granted by Kerr
J and by the Court of Appeal to Archbishop Sean Brady and the Roman
Catholic Bishops of Northern Ireland (the Northern Bishops), to the Society
2
for the Protection of Unborn Children, Northern Ireland (SPUCNI), to a
society known as Precious Life and to a society known as Life (NI).
[3] FPANI applied to Kerr J seeking a declaration that the respondent has
acted unlawfully in failing to issue advice and/or guidance to women of
child-bearing age and to clinicians in Northern Ireland on the availability and
provision of termination of pregnancy services in Northern Ireland. It also
sought a declaration that the respondent has acted unlawfully in failing to
investigate whether women of child-bearing age in Northern Ireland are
receiving satisfactory services in respect of actual or potential terminations of
pregnancy in Northern Ireland and a declaration that the Minister has acted
unlawfully in failing to make, or secure the making of, arrangements
necessary to ensure that women in Northern Ireland receive satisfactory
services in respect of actual or potential terminations of pregnancy in
Northern Ireland.
[4] FPANI seek an order from this court that its appeal against the order of
Kerr J dismissing its application, be allowed, and that the declarations set out
above be granted.
[5] Abortion is a controversial subject. Many people in Northern Ireland
consider that the unborn child has as much right to the protection of the law
as any other person. Thus it is essential that judges should not express their
personal opinions or beliefs but should approach a case such as this
objectively.
[6] This case does not involve an attempt to liberalise the law on abortion.
It is no part of the court’s function to lend itself to such an attempt. The
Westminster Parliament or the Northern Ireland Assembly is the proper
forum for any debate on abortion. The available evidence supports the view
that the vast majority of people in Northern Ireland do not wish to have the
Abortion Act 1967 which applies in Great Britain to be extended to Northern
Ireland.
[7] In this case the court is only concerned with the respondent’s and his
department’s responsibilities in regard to abortion under the legal framework
established by Parliament and the extent to which it is appropriate for the
court to ensure that those responsibilities are fulfilled if there has been a
failure to fulfil them. The judges’ personal beliefs must not prevent them
from carrying out that task.
[8] The outcome of this appeal does not entitle anyone to claim that as a
result the law should be liberalized. Lord Lester QC on behalf of the
appellant has expressly disclaimed any attempt to have the law changed by
these proceedings. I am aware that the appellant wishes to have the law
changed in Northern Ireland so as to incorporate the Abortion Act 1967 but I
3
am satisfied that it recognises that any such change cannot be achieved by an
application to the courts.
[9] But it is the duty of the courts, when required to do so, to state what
the law is, not what it ought to be; and it acknowledges that the appellant and
respondent are entitled to request the courts to state what the law is, if asked
to do so in appropriate circumstances.
The statutory framework
[10] The duties and powers of the respondent and his department are
contained in the Health and Personal Social Services (Northern Ireland) Order
1972 as amended (“the 1972 Order”).
[11] Part 2 of the 1972 Order is headed: Main Functions of the Ministry.
General Duty of Ministry
4. It shall be the duty of the Ministry –
(a) to provide or secure the provision of integrated health services
in Northern Ireland designed to promote the physical and
mental health of the people of Northern Ireland through the
prevention, diagnosis and treatment of illness;
(b) to provide or secure the provision of Personal Social Services in
Northern Ireland designed to promote the social welfare of the
people of Northern Ireland
and the Ministry shall so discharge its duty as to secure the effective
co-ordination of Health and Personal Social Services.
Provision of accommodation and medical services, etc
5.-(1) The Ministry shall provide throughout Northern Ireland, to such extent
as it considers necessary, accommodation and services of the following
descriptions –
(a) hospital accommodation, …
(b) premises, other than hospitals, at which facilities are available
for all or any of the services provided under this Order;
(c) medical, nursing and other services whether in such …
premises, in the home of the patient or elsewhere.
(2) In addition to its functions under paragraph (1), the Ministry may
provide such other accommodation and services not otherwise specifically
provided for by this Order as it considers conducive to efficient and
sympathetic working of any hospital or service under its control, and, in
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