R A (a child, by her litigation friend B) and B v Secretary of State for Health Alliance for Choice (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice McCombe,Lord Justice Moore-Bick |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] EWCA Civ 771 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 2015 |
| Docket Number | Case No: C1/2014/1687 |
[2015] EWCA Civ 771
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice King
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Elias
and
Lord Justice McCombe
Case No: C1/2014/1687
and
Stephen Cragg QC and Caoilfhionn Gallagher (instructed by Maxwell Gillott) for the Appellant
Jason Coppel QC (instructed by Government Legal Department) for the Respondent
Jude Bunting (instructed by Leigh Day) filed written submissions on behalf of the Intervener
Hearing date: 9 June 2015
Introduction
Almost fifty years ago, the Abortion Act 1967 liberalised the law on abortion. The Act permitted pregnant women to obtain an abortion without risking criminal prosecution in a wider range of circumstances than had hitherto been allowed. However, the Act did not extend to Northern Ireland: section 7(3). The law in the province is still governed by principles which reflect the pre-1967 Act provisions. Sections 58 and 59 of the Offences Against the Person Act 1861 make it a criminal offence to procure, perform or have an abortion save where the purpose is to preserve the life of the mother or where the continued pregnancy would seriously affect the mother's physical or mental health. So, for example, there is no right to an abortion following a rape or incest. The effect of the law was summarised by the Northern Ireland Court of Appeal in Family Planning Association of Northern Ireland v Minister for Health and Social Services and Public Safety [2004] NICA 37, para. 12 as follows:
"… A termination will therefore be lawful where the continuance of the pregnancy threatens the life of the mother, or would adversely affect her mental or physical health;
The adverse effect on her mental or physical health must be a 'real and serious' one, and must also be 'permanent or long term';
In most cases the risk of the adverse effect occurring would need to be a probability, but a possibility might be regarded as sufficient if the imminent death of the mother was the potentially adverse effect;
It will always be a question of fact and degree whether the perceived effect of a non-termination is sufficiently grave to warrant terminating the pregnancy in a particular case."
The effect of the stricter regime in Northern Ireland is that many pregnant women who live in Northern Ireland have sought to evade criminal liabilities by coming to England to secure an abortion. The official statistics suggest that about 1000 women a year come to take advantage of the more liberal legal regime, although the organisation Alliance for Choice, who has permission to act as an intervener in these proceedings, believe that the true figure is probably double that number.
In general there is a right to free treatment under the National Health Service ('NHS') in England only if the patient ordinarily resides in England. Similar principles operate in Scotland, Wales and Northern Ireland. Mere presence is not enough to confer the right, save in certain prescribed circumstances which do not in the normal case cover abortions. Accordingly, women from Northern Ireland seeking an abortion will be unable to obtain it free of charge on the NHS save in very exceptional circumstances, such as an emergency. They can, however, have access to abortion services if they pay privately. As the appellants and the intervener point out, in some cases, of which this is one, there will be practical obstacles facing women who seek to exercise that option, in particular lack of information and money. But there is no legal impediment to a woman obtaining an abortion in England, albeit that she cannot do so free on the NHS.
The appellants in these proceedings are a 15 year old girl, whose mother is her litigation friend, and her mother. They live in Northern Ireland. She was in a relationship and became pregnant by her boyfriend. After much anxious thought, she came to Manchester to have her pregnancy terminated at an independent clinic. The cost was £600 (it would have been more expensive if the pregnancy had been further advanced) and the travel costs were £300. In fact half the cost was paid by a voluntary organisation, the Abortion Network. Even so, the mother says that it would have significantly reduced the trauma and stress for both her daughter and herself if they had known from the outset that they could travel to the UK and obtain the service free of charge. In fact they did not seek to use the NHS, but it is conceded by the Secretary of State that they would almost inevitably have been refused the facility had they done so. It is also conceded by the Secretary of State that he has, and had at the material time, the power to require abortion services to be provided to women from Northern Ireland on the same basis as they are made available to women in England.
The appellants brought proceedings for judicial review contending that the Secretary of State had acted unlawfully in failing to exercise that power. She advanced her case before Mr Justice King on two grounds. First she submitted that the failure was an irrational exercise of the duty conferred on the Secretary of State by section 3 of the National Health Service Act 2006. Second, she said that it was a breach of her Convention rights involving an infringement of Article 14 when read with Article 8.
Mr Justice King, in an impressive and careful analysis, granted permission to apply for judicial review but dismissed the claim, rejecting both the public law and human rights challenges. The appellant now appeals that decision.
The relevant legislation
The relevant events occurred prior to 1 April 2013. The significance of this is that the law changed on that date. The primary Act, the National Health Service Act 2006 was amended and new regulations altered the way in which health services were delivered. Strictly this case is concerned only with the earlier legislation but both parties accepted that whatever the outcome, the position should be no different under the amended legislation. I will focus on the relevant legislation in force at the time but will indicate why the amended legislation does not materially change the nature of the challenge.
The pre-April 2013 law
Section 1 of the 2006 Act is as follows:
"(1) The Secretary of State must continue the promotion in England of 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 illness.
(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
(3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed. ( Emphasis added)
The focus, therefore, is upon a duty to provide a service for the people of England. Equivalent provisions apply to Scotland, Wales and Northern Ireland. Health policy is a transferred matter in Northern Ireland and it is therefore a matter for the Northern Ireland Assembly or its delegates to determine what services it will provide, and in what manner, to those falling within its jurisdiction.
Section 3(1) of the 2006 Act imposes a qualified duty to provide certain services:
"(1) The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements—
(a) hospital accommodation,
(b) other accommodation for the purpose of any service provided under this Act,
(c) medical, dental, ophthalmic, nursing and ambulance services,
(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service,
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,
(f) such other services or facilities as are required for the diagnosis and treatment of illness."
Subsections (1)(c) and (d) provide the authority to establish abortion and ancillary services in England.
Under this section the Secretary of State has a wide discretion both as to the assessment of needs and how best to provide for them. This point was emphasised by Lord Woolf MR when considering the relationship between the predecessors of what are now sections 1 and 3 of the 2006 Act, in his judgment in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 13, a case concerning the provision of nursing services (paras. 23–25):
"23. It will be observed that the Secretary of State's section 3 duty is subject to two different qualifications. First of all there is the initial qualification that his obligation is limited to providing the services identified to the extent that he considers that they are necessary to meet all reasonable requirements. In addition, in the case of the facilities referred to in (d) and (e), there is a qualification in that he has to consider whether they are appropriate to be provided "as part of the health service….
24. The first qualification placed on the duty contained in section 3 makes it clear that there is scope for the Secretary of State to exercise a degree of judgment...
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