R (A and Another) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Reed,Lord Hughes,Lord Kerr,Lady Hale |
| Judgment Date | 14 June 2017 |
| Neutral Citation | [2017] UKSC 41 |
| Date | 14 June 2017 |
| Court | Supreme Court |
[2017] UKSC 41
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Appellants
Stephen Cragg QC
Caoilfhionn Gallagher QC
(Instructed by Simpson Millar LLP)
Respondent
Jason Coppel QC
Katherine Eddy
(Instructed by The Government Legal Department)
Interveners (Alliance for Choice, British Pregnancy Advisory Service, Birthrights, Family Planning Association and Abortion Support Network)
Helen Mountfield QC
Jude Bunting
(Instructed by Leigh Day & Co)
Intervener (British Humanist Association – Written submissions only)
Heather Williams QC
Kate Beattie
(Instructed by Bhatt Murphy Solicitors)
Heard on 2 November 2016
( with whom Lord Reed and Lord Hughes agree)
Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service ("the NHS") in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Court of Appeal (Moore-Bick LJ, Elias LJ, who gave the substantive judgment, and McCombe LJ) on 22 July 2015, [2015] EWCA Civ 771, [2016] 1 WLR 331, when dismissing an appeal against an order to like effect made by King J on 8 May 2014, [2014] EWHC 1364 (Admin).
Under section 1 of the Abortion Act 1967 ("the 1967 Act") a medical termination of pregnancy is lawful in four specified circumstances, of which the first is, in essence, that the pregnancy has not exceeded 24 weeks and that its continuation would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the woman. By section 7(3), the 1967 Act extends to England, Wales and Scotland but not to Northern Ireland. In Northern Ireland a termination of pregnancy is lawful when its continuation would threaten the woman's life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term: Family Planning Association of Northern Ireland v Minister for Health and Social Services and Public Safety [2004] NICA 37, para 12, Sheil LJ. The consequence of the requirement that the probable adverse effect should at least be long-term is that abortion in Northern Ireland is lawful only in far narrower circumstances than in the rest of the UK. A challenge to the failure of the law in Northern Ireland to make abortion lawful even in cases of fatal foetal abnormality and of pregnancies caused by sexual crime has been upheld in the High Court of Northern Ireland and is subject to appeal: In re Northern Ireland Human Rights Commission's Application for Judicial Review [2015] NIQB 96, [2016] 2 FCR 418. But, irrespective of the ultimate outcome of those proceedings, the far narrower availability of lawful abortion in Northern Ireland than elsewhere in the UK seems likely to continue. The criminal law relating to abortion in Northern Ireland is a "transferred matter" within the meaning of section 4(1) of the Northern Ireland Act 1998 and so, subject to section 6, its amendment or otherwise falls within the legislative competence of the Northern Ireland Assembly rather than of Parliament in Westminster.
The result of the narrower availability of abortion in Northern Ireland is a steady stream of women usually resident there who come to England in order to secure an abortion here.
The evidence in these proceedings is to the following effect:
(a) Unable (unless in an emergency) to obtain an abortion free of charge under the English NHS, these women attend private, fee-paying clinics in England approved by the respondent under the 1967 Act.
(b) Official statistics, based on records kept by the clinics, suggest that about 1,000 of them secure abortions in England each year.
(c) But the statistics are likely to understate their number because some of the women are believed to hide the fact that they are usually resident in Northern Ireland.
(d) The clinics charge about £600 for terminating a pregnancy of less than 14 weeks and up to £2,000 in the event that it is further advanced.
(e) Additionally the women need to pay for their travel to and from England and, usually, an overnight stay.
(f) Vulnerable and frightened, they often ask a friend or family member to accompany them, albeit, of course, at yet further cost.
(g) For most of the women, the total cost represents a vast sum of money which they do not have.
(h) The charity known as Abortion Support Network, being the fifth intervener in these proceedings, sometimes makes a contribution towards the women's costs.
(i) Even if so, the women usually need to borrow the balance.
(j) The stigma which in Northern Ireland surrounds unwanted pregnancy and its termination can inhibit the women from explaining the reason for their need to borrow.
(k) The effect of any delay in raising the funds is that the pregnancy continues, that its termination usually becomes more complex as well as more costly and that its psychological consequences usually become more profound.
(l) If, within the time frame set by the 1967 Act, they cannot raise the funds to secure a lawful abortion in England, the women have to choose either to undergo a self-administered or back-street abortion in Northern Ireland, by which they endanger their health and expose themselves to criminal prosecution and a likely sentence of imprisonment, or to proceed to give birth to a child for whom they may be ill-equipped to care.
Although this court must acknowledge respect for the ethical "pro-life" convictions which inform the law in relation to abortions in Northern Ireland (together, of course, with equal respect for the contrary "pro-choice" convictions), it remains easy to understand why the plight of women who find themselves in unwanted pregnancy there is deeply unenviable.
The two appellants, A and B, are cases in point. In 2012 A, then aged 15, became pregnant. B is her mother. At all material times they have resided in Northern Ireland. With B's support A decided to seek the termination of her pregnancy. It was conducted in October 2012 at the Marie Stopes International Clinic in Manchester. B had accompanied A there. The total cost was about £900, of which £400 was contributed by Abortion Support Network and £500 was borrowed from friends. Adding significantly to the emotional strain on both A and B of discovering A's pregnancy and of enabling her to decide whether to secure its termination in England were the embarrassment, difficulty and uncertainty attendant on the urgent need to raise the necessary funds.
On 1 April 2013 there was a change in the legislative structure of the NHS in England. The present appeal, in which the claim is of a breach in 2012 of a duty owed to the appellants, therefore relates to the previous structure. The respondent makes a helpful concession: it is, as I will explain in para 13, that in 2012 he had a power which, if exercised, would (so the court may assume) have enabled UK citizens usually resident in Northern Ireland to undergo abortions under the NHS in England free of charge. But it is a power which he did not exercise; so the question is whether his failure to do so was unlawful.
Section 1(1) of the National Health Service Act 2006 ("the 2006 Act") was not materially affected by the change in 2013. In its current version it provides that the respondent must continue to promote in England a comprehensive health service designed to secure improvement "(a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of physical and mental illness". In my view correctly, King J described the provision as creating a target duty: the express focus of both parts of it is improvement. It identifies the general objectives by reference to which the respondent must exercise his functions under the Act. Such is made clear in subsection (2) of the same section, when, referring back to subsection (1), it provides that "for that purpose" he must (in the previous version of subsection (2)) provide services in accordance with the Act and (in the current version of it) exercise his functions so as to secure that they are so provided.
Section 1(1) of the 2006 Act refers not to the people in England but to the people of England. In R (A) v Secretary of State for Health [2009] EWCA Civ 225, [2010] 1 WLR 279, Ward LJ suggested at para 55 that the reference is therefore to people who are "part and parcel of the fabric of the place". I agree and suggest, more simply, that it is to the people who live in England. Other legislation imposes an analogous target duty on the health authorities in Wales, Scotland and Northern Ireland. Thus article 4(a) of the Health and Personal Social Services (Northern Ireland) Order 1972 (SI No 1972/1265) (NI 14), requires the Department of Health, Social Services and Public Safety in Northern Ireland to provide services designed to promote the health of the "people of Northern Ireland". The general scheme is therefore that the health service for the people who live in Northern Ireland is to be provided for them there by the Northern Irish authority.
The original version of section 3(1) of the 2006 Act provided:
"The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements —
…
(c) medical … services,
(d) such other services … for the care of pregnant women … as he considers are appropriate as part...
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