UK Constitutional Law Association

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Byron Karemba: Provision of Abortion Services, the Territorial Constitution and the Supreme Court

Introduction

Should UK citizens ordinarily resident in one of the constituent parts of the UK be treated equally in regards to essential social services when they are in a different part of the country? In one sense, the appeal in R (A and B) v Secretary of State for Health in which the Supreme Court recently gave judgment can be reduced to this question of principle. A and B concerned a challenge to the UK Government’s former position of not funding abortion services for women usually resident in Northern Ireland (NI) who seek such services in England. By a majority of 3 to 2, the Court held that the Secretary of State was not acting unlawfully by choosing not to extend his statutory duties to providing the services sought by the appellants on the English health service. The majority judgment was written by Lord Wilson, with whom Lord Reed and Lord Hughes agreed. The five-member panel was completed by Lord Kerr whose dissenting judgment was affirmed by Lady Hale.

In his concurring judgment, Lord Reed points out that the case ‘is of wider importance in the context of the devolved constitutional structure of the United Kingdom.’ This post considers both the majority and dissenting judgments, flagging up the Court’s treatment of the territorial issue, and the broader point of principle about the treatment of UK citizens in this context.

The Relevant Statutory Framework

Abortion is lawful in NI in very narrow circumstances. It is subject to a complex and obscure regime governed by the combination of sections 58 and 59 of the Offences Against the Persons Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. Given this position, it was common ground in A and B that there ‘is a steady stream of women usually resident in Northern Ireland who come to secure an abortion [in England].’

Section 1(1) of the National Health Service Act 2006, imposes duties on the health minister to promote a health service which secures improvement:

(a) in the physical and mental health of the people of England [emphasis added]

(b) in the prevention, diagnosis and treatment of physical and mental illness.

Section 3(1) of the same Act places specific obligations on the minister to ‘provide throughout England, to such an extent as he considers necessary to meet all reasonable requirements’:

(c) medical services and

(d) such other services for the care of pregnant women as he considers are appropriate as part of the health service.

Lord Wilson suggests that the provision of abortion services ‘probably’ came within the “medical services” element of section 3. The key interpretative question in A and B was whether the demographic limitation in s.1 (1) (a) also determined the extent of the obligation in relation to the pertinent services in section 3.

The Grounds for Appeal

First, the appellants submitted that by deciding not to make provision for the relevant services, the minister had failed to ‘meet all reasonable requirements’ of health care needs ‘throughout England’ as required by section 3 of the 2006 Act. Furthermore, by taking into account the position of the Stormont legislature in this decision, the minister had accounted for an irrelevant consideration.

These public law grounds were accompanied by a second, HRA-based argument, which asserted a violation of the parasitic prohibition of discrimination in Article 14, read together with the privacy rights protected by Article 8 of the ECHR. The appellants calibrated this claim such that it did not attach to women resident in NI generally, but to UK citizens ordinarily resident in NI seeking abortion services in England. These submissions were buttressed by references to provisions in the Convention on Eradication of all Forms of Discrimination Against Women (CEDAW).

Majority

In dismissing the appeal, the starting point for Lord Wilson was that Parliament has willed a scheme in which ‘separate authorities in each of the four countries united within the kingdom should provide free health services to those usually resident there.’ On the construction of the phrase “the people of England” in section 1(1)(a), Lord Wilson leant on a rather nebulous formulation put forward by Ward LJ in R (A) v Secretary of State for Health  which describes it as referring to ‘people who are part and parcel of the place.’ On Lord Wilson’s interpretation, this meant the minister’s obligations could be limited ‘to people who live in England.’

The majority accepts the relevancy of concerns over comity between the UK Government and the NI Assembly to the minister’s decision. This appears to have out-weighed the fact that women from NI can lawfully travel to England to avail themselves of the less restrictive legal position on abortion there. In vindicating this position, Lord Wilson held that the minister:

Was entitled to afford respect to the democratic decision of the people of Northern Ireland […] and was entitled to decide not further to alter the consequences of the democratic decision by making such services available to them free of charge under the public scheme in England for which he was responsible. (Emphasis added)

On the human rights point, the majority found that the minister’s decision was indeed ‘rationally connected’ to the aim of ‘stay[ing] loyal to a legitimate scheme for health services to be devolved in the interests of securing local provision to residents in each of our four countries.’ Given this aim, the majority concludes that the decision by the minister could not have been reached in a manner less intrusive upon the appellants’ Article 8 rights. In Lord Wilson’s view, the dispositive question in this context was whether the decision ‘strike a fair balance between [the appellant’s rights] and the interests of the UK community as a whole.’

The majority did not attach significant weight to the ‘international law materials’ which the appellants had contended should inform this balancing exercise. This extended to the emphasis put on Article 12 of CEDAW.  In Lord Wilson’s assessment, the appellants:

Needed material of a far more vivid hue to put into the balance against the respondent’s resolve to stay loyal to the overall scheme for separate provision of free health services within each of our four countries and to the democratic decision reached in NI in relation to abortion services.

As with the construction of the 2006 Act, we see concern over comity within the territorial constitution looming large over Lord Wilson’s reasoning. This is at the opportunity cost of the equal treatment of UK citizens when they move between the component parts of the country.

The Dissentients

Lord Kerr contends that the majority construes the phrase “the people of England” in a manner inconsistent with the scheme of the 2006 Act. He argues that the phrase should be given meaning with reference to the ‘true nature of the objective’ to which it is deployed. He draws a distinction between the obligation ‘to secure improvement in the physical and mental health of the people of England’ and the non-demographically aligned duty ‘to secure improvement in the prevention, diagnosis and treatment of illness’ in the second part of section 1(1) of the 2006 Act. According to Lord Kerr, the demographically neutral duty in section 1(1) (b) imbues the pertinent obligations enumerated in section 3 which the appellants had sought to activate.

On affording respect to the NI legislature, Lord Kerr observes that allowing the appeal would not have affected ‘the Assembly’s continuing responsibility for the provision of medical services in Northern Ireland.’ Therefore, the question of the sustaining the ‘legitimate objective’ of having an independent health service in NI did not arise. And if no legitimate aim can be established behind the failure to secure the Article 8 rights on a non-discriminatory basis, ‘the entire edifice of the justification crumbles’ according to Lord Kerr.

Lady Hale dissent was grounded in a common law approach which tangentially references the Convention. According to Lady Hale, ‘regard must be had to some fundamental values underlying our legal system […] these include autonomy and equality, both of which are aspects of an even more fundamental value, which is respect for human dignity.’ These municipal principles, according to Lady Hale, require that ‘a woman from Northern Ireland who is in Great Britain ought not to be denied, as a matter of policy, the same rights as other women here enjoy.’

Conclusion: The Government’s About-Turn

Lady Hale’s equality based reasoning found expression in a letter from the Minister for Equalities to MPs announcing the Government’s abrupt change of policy on this issue. This came about after threats to amend the Queen’s Speech expressing regret about the Government’s position on this issue. Interestingly, the letter vindicates Lord Kerr’s view that getting rid of the discrimination would not affect the provision of health services in NI.

Byron Karemba is a PhD Student at the University of Leeds.

(Suggested citation: B. Karemba, ‘Provision of Abortion Services, the Territorial Constitution and the Supreme Court’, U.K. Const. L. Blog (30th Jun 2017) (available at https://ukconstitutionallaw.org/))

2 comments on “Byron Karemba: Provision of Abortion Services, the Territorial Constitution and the Supreme Court

  1. Daniel Blackburn
    June 30, 2017

    This is possibly a very stupid question, but would it be likely that the same outcome would have been achieved should the appellants have attempted to make use of (devolved) Welsh or Scottish NHS services in the same way?

    Lord Wilson’s remark that each of the 4 constituent territories of the United Kingdom is compelled by law to provide health ‘[only] to those usually resident there [and no further]’. This indicates that provision of service to usual residents of other constituent territories is almost at the discretion of each of the Health Controller in each area.

    It would be interesting to see responses from both Cardiff and Holyrood on the likely outcome for NI residents travelling to either Wales or Scotland to make use of NHS services not available in Northern Ireland, especially after the success of Stella Creasy’s Queen’s Speech amendment.

  2. Pingback: What’s New in Public Law - Global Job Site

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