A (A Child) & Anor, R (On the Application Of) v Secretary of State for Health [2015] EWCA Civ 771

[2015] EWCA Civ 771Case No C1/2014/1687
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 1364 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice King
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 22 nd July 2015
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE ELIASLORD JUSTICE McCOMBE
Between
THE QUEEN on the application of AAppellants(a child, by her litigation friend B) and BAppellantSECRETARY OF STATE FOR HEALTHRespondentALLIANCE FOR CHOICEIntervener
(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Stephen Cragg QC and Caoilfhionn Gallagher (instructed by Maxwell Gillott) for AppellantJason Coppel QC (instructed by Government Legal Department) for RespondentJude Bunting (instructed by Leigh Day) filed written submissions for IntervenerHearing Hearing date: 9 June 2015

Introduction

[1]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.”
[2]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.[3]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.[4]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.[5]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.[6]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

[7]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

[8]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)[9]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.[10]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.[11]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 as to the circumstances in which he will provide the services, including nursing services referred to in the section. He does not automatically have to meet all nursing requirements. In certain circumstances he can exercise his judgment and legitimately decline to provide nursing services. He need not provide nursing services if he does not consider they are reasonably required or necessary to meet a reasonable requirement. 25. When exercising his judgment he has to bear in mind the comprehensive service which he is under a duty to promote as set out in section 1…. (emphasis in the original)”
[12]Prior to 1 April 2013, the qualified duty under section 3 was delegated to local Primary Care Trusts (“PCTs”) by section 3(2) of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administrative Arrangements) (England) RegulationsSI 2002/2375 (“the Function Regulations”). However, by section 7 of the 2006 Act the Secretary of State could direct a PCT to exercise any of his functions relating to the health service, and by section 8 he could give directions to the PCT about how the functions should be exercised.[13]Regulation 3(7) of the Function Regulations is important. It laid down the category of persons for whom a PCT could provide the section 3 services. The general principle, set out in regulation 3(7)(a), is that so far as citizens of the UK were concerned, these were to be provided to those residing within the area of the PCT. So it included practice patients in respect of whom the PCT was the relevant PCT (but the concept of practice patients excluded those only temporarily registered as patients); persons “usually resident” in the area; and certain “qualifying patients” as defined by section 130C of the Mental Health Act 1983. This last category would include persons with serious mental illness who are, say, resident in Northern Ireland but present in England.[14]The concept of residence was not applied to persons from outside the UK, however. One of the specified category of beneficiaries is “others present in the area who are resident outside of the UK and do not fall under the responsibility of any other PCT.” This would include, for example, women from the Republic of Ireland. However, with respect to those coming from outside the UK, there is a power to charge (save in certain exceptional circumstances) under provisions now contained in the National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238). So women from outside the UK who receive abortion services on the NHS can be charged and in fact are charged.[15]Regulation 3(7)(b) provides for those functions which will be provided on the basis of presence in the area alone, even to those from within the UK. These include, for example, emergency services, and certain services connected with drug and alcohol misuse but they do not include abortion services specifically. The latter can therefore only be provided to a woman resident in Northern Ireland who comes to England in the event of an emergency, or for certain mentally ill patients. The broad rationale seems to be that presence should suffice either where treatment should be given as a matter of compassion for someone taken ill or suffering an injury when by chance they happen to be away from home in the UK, or where a person is suffering from an illness or disease which, if left untreated, could harm others.[16]Given the way the regulations were drafted, therefore, it was not possible for a PCT to provide abortion services free on the NHS for someone temporarily present in the area of the Trust, whether the woman was from Northern Ireland or elsewhere in the UK. However, the Secretary of State concedes that he could have made a direction under section 7 of the 2006 Act to bring women from Northern Ireland within the scope of those who could in principle be provided with an abortion service, thereby equating their position with women resident in England.

The position since 2013

[17]The way in which health services are provided changed in April 2013. Clinical commissioning groups (“CCGs”) have taken the place of the PCTs, which have been abolished. The Function Regulations have been revoked. Section 3 has been amended so that the qualified duty formerly imposed on the Secretary of State and delegated to PCTs will now be exercised by the CCGs. They have to provide throughout England the services formerly provided by the PCTs.[18]The obligation imposed by section 3 on any CCG relates to persons “for whom it has responsibility”. The persons for whom it has responsibility are defined by section 3(1A). As before these are, broadly, patients of GP practices in the area or those usually resident there. Also as before there are certain prescribed circumstances e.g. emergencies, when the duty relates to anyone present in the area. This is the effect of various provisions of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.[19]Had the legislation been left in this form, it would have meant that women from Northern Ireland (or indeed, other parts of the UK) could temporarily register with a GP and thereby qualify for all NHS services, including abortion services. To prevent this, regulation 2 of the National Health Service (Clinical Commissioning Groups - Disapplication of Responsibility) Regulations 2013 provides that persons usually resident in Scotland, Wales or Northern Ireland are not persons to whom a CCG owes its section 3 duty, and that is so even if they would otherwise satisfy the statutory test and fall within the scope of the CCG’s responsibility. So the CCG is not, under the rules, under a duty to provide an abortion service to the appellant or any other pregnant woman residing in Northern Ireland.[20]However, as well as having a duty to commission services, CCGs also have a power to do so by a new section 3A. Regulation 2 of the Disapplication Regulations does not apply to that power. Accordingly, whilst a CCG could not, as the rules currently stand, provide abortion services to the appellant pursuant to its commissioning duty, it would be open to a CCG to make those services available on the same basis as to women living in England by the exercise of its commissioning power.[21]Moreover, although functions have now been transferred to CCGs, the Secretary of State could, by amending the relevant regulations, bring pregnant women from Northern Ireland within the category of those for whom the CCG has the qualified duty under section 3 to provide services. It is for this reason that the Secretary of State accepts that even under the amended legislation, he does in principle have the power to put pregnant women from Northern Ireland seeking abortion services on the NHS in the same position as those residing in England. He is able to secure for them free access to abortion services in appropriate circumstances.

Public law argument

[22]The appellants in their appeal rely on both the public law and Convention arguments unsuccessfully advanced below. As to the former, they submit that the Secretary of State failed properly to discharge the section 3 duty to “take such steps as he considers necessary to meet all reasonable requirements” by refusing to provide (or at least enabling PCTs to provide) free abortion services to those resident in Northern Ireland. The steady flow of women from the province seeking abortion established a “reasonable requirement” which could only be met by making abortion services available to them; it was necessary for the Secretary of State to take that step. Mr Cragg QC, counsel for the appellants, accepts that he has to establish that the failure by the Secretary of State to recognise that this was a reasonable requirement has to be shown to be unreasonable to the Wednesbury standard, but submits that the stringent irrationality test is satisfied here. No reasonable minister, properly directing himself, could have reached any other conclusion but that he should provide free abortion on the NHS for women from Northern Ireland.[23]In this context the appellants rely upon the response given by the Secretary of State to the letter before action. It was stated that it was:
“the policy of the Government …. that in general the NHS should not fund services for residents of Northern Ireland which the Northern Ireland assembly has deliberately decided not to legislate to provide, and which would be unlawful if provided in Northern Ireland ....”
[24]Mr Cragg submits that this was clearly an improper consideration: it makes no sense to rely upon the illegality of abortion in Northern Ireland as a justification for refusing to provide the service free on the NHS. On the contrary, it was that fact which created the requirement; the lack of abortion services for these women where they live is a decisive argument in favour of providing these services in England.[25]It is important to note, as Mr Justice King pointed out in his judgment below, that the reason that abortion services are not available to women from Northern Ireland is not because they were singled out by the Secretary of State for less favourable treatment. It is a consequence of the decision to provide services for UK citizens on the basis of residence. The appellant would not have been eligible for the service in Manchester had she lived in Wales or Scotland (or, indeed, in other health regions within England). Moreover, although there are women from the Republic of Ireland, where the law on abortion is even more strict than it is in Northern Ireland, who are able to obtain abortion on the NHS, they are charged pursuant to charging powers which do not entitle the Secretary of State to charge UK citizens.[26]So on what basis can it be said that free abortions should be provided to women resident in Northern Ireland? Mr Cragg put forward a number of possible grounds. The broadest is that the service should be provided whenever a free abortion is not available to the woman in her own country. But that would require opening up the health service in England to a potentially vast array of people from all over the world. Moreover, it is not obvious why abortion should be selected in preference to other forms of health treatment. Mr Cragg did not seriously pursue that submission, sensibly conceding that the principle of limiting access to free health services on the basis of ordinary residence is, as a general rule, justified.[27]A more limited basis, floated by Mr Cragg, is that the Secretary of State should act where abortion is not legal in the woman’s place of residence. But that would not justify it being provided free of charge, and access is already available if the woman goes to a private clinic. Moreover, if the law were to require provision free of charge in such circumstances, that would mean that the Secretary of State would have to provide the service without charge to a large number of women from the Republic of Ireland, almost five times as many as come from Northern Ireland. It is not irrational for the Secretary of State to be unwilling to adopt that policy.[28]The narrowest basis, and the one on which Mr Cragg finally rested his case, is that women from Northern Ireland constitute a special case both because abortion is (save exceptionally) illegal where they live, and because they are denied the right to free abortion as citizens of the UK, notwithstanding that other women throughout the UK can obtain those services. The Secretary of State should therefore have used his powers to place these women in precisely the same situation as women from England and indeed all other parts of the UK. He should have provided the service which the Northern Ireland government was not prepared to provide, and indeed could not legally provide.[29]I do not accept this argument. There was nothing irrational in the approach of the Secretary of State. It is entirely logical to provide a range of NHS services throughout the UK on the basis of local residence requirements. As Lord Woolf pointed out in Coughlan, it is for the Secretary of State to decide what is a “reasonable requirement” in section 3 and whether it is necessary to meet that requirement. In making that decision he must have regard to section 1 and to the fact that the obligation is to provide the service in England for the people of England. As the Secretary of State accepts, that does not preclude him from providing a service on the basis of presence alone for women from Northern Ireland, but in my judgment it underpins why it could not conceivably be said that the Secretary of State is obliged to exercise his discretion so as to extend free abortion services to such women. It is not irrational to take the view that English taxpayers should not have to bear the cost of providing abortion services to women from Northern Ireland. Furthermore, the constitutional arrangements confer the power to provide health services on the devolved legislatures and it is wholly rational – and certainly not Wednesbury irrational - to limit the scope of a range of services, for the most part at least, to those for whom the authority has primary responsibility. The fact that Northern Ireland does not provide these services because it still considers that abortion should, in most circumstances, be illegal does not compel the Secretary of State to take a different approach to women from that area. It cannot be irrational for the Secretary of State, with responsibility for the health service in England, to consider that it is not his duty to seek to remedy what some might consider to be the harsh consequences of the law adopted by the devolved legislature in Northern Ireland. I would therefore dismiss this public law challenge.

The Convention argument: Article 14 read with Article 8

[30]Article 8 of the Convention protects private and family life. Article 14 is as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[31]Article 14 is not a free standing right: it applies only where the act in question falls “within the ambit” of another Convention right, although there need be no infringement of that right as such: Petrovic v Austria(2001) 33 EHRR 14 para. 22. The concept of “within the ambit” has been broadly construed. In Zarb Adami v Malta (2007) 44 EHRR 3, Judge Bratza noted that “it is indisputable that a wide interpretation has consistently been given by the Court to the term.”[32]In order to constitute discrimination in the typical case of direct discrimination, there must be a difference in treatment on one of the prescribed grounds of persons in analogous situations, without any objective and reasonable justification. The prescribed grounds are widened by the concept of “other status” which has been applied in a range of circumstances, although the Strasbourg Court has held that it has to be based on a personal characteristic: Kjeldsen Madsen and Pedersen v Denmark(1976) 1 EHRR 371 para. 160. However, this has been widely construed and can include, for example, social categories such as professional or trade union status.[33]The standard case of direct discrimination reflects the principle that like cases should be treated alike and arbitrary distinctions should be ignored, but in Thlimmenos v Greece (2001) EHRR 15 the Strasbourg court also held that Article 14 can exceptionally be applied so as to give effect to the principle that different cases should be treated differently. The court formulated the principle as follows (para. 44):
“The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
[34]The facts in Thlimmenos illustrate how the principle operates. The applicant was a Jehovah’s Witness and for religious reasons refused to enlist in the army. This constituted a felony under Greek law. As a consequence of having committed a felony, the applicant could not by law hold the post of chartered accountant. He successfully argued that the law failed to distinguish between persons convicted of an offence as a result of their religious beliefs and those convicted on other grounds. The court held that the relevant law engaged his Article 9 right to freedom of religion; that the offence for which he had been committed was materially different to other felonies since it did not imply any dishonesty or moral turpitude; and that there was no justifiable reason for refusing to make an exception for the applicant and others in like circumstances. It is this principle on which the appellants now rely in this appeal.[35]Mr Cragg did not in his oral submissions seek to argue, as he had done below, that there was direct discrimination. There plainly was discrimination on grounds of residence, and the Strasbourg court has accepted that in principle this is capable of being a personal characteristic falling within the scope of “other status” in Article 14: Carson v UK(2010) 51 EHRR 13. However, in so far as the discrimination takes this form, it excludes all non-resident pregnant women and not merely those from Northern Ireland. Essentially for reasons already given, and as Mr Cragg realistically conceded, even if the discrimination on grounds of residence in this case falls within article 14 - a point which Mr Coppel disputed - it is objectively justifiable for the Secretary of State to allocate free NHS services, including abortion services, on that basis.[36]The argument finally relied upon at the hearing, which was based upon the Thlimmenos principle, does not appear to have been advanced before the judge. It was formulated in an unusual way. The contention is that even though it is in general justifiable to limit the benefit of free abortion services to residents and therefore to refuse to extend them to non-residents, the position of women in Northern Ireland should be distinguished from other non-residents for two related reasons: first, because of the fact that their law generally forbids abortion; and second, because they are citizens of the United Kingdom. The Secretary of State, it is asserted, ought to have recognised their special and distinct status and given them the same rights as women in England. The argument therefore essentially mirrors the public law submission but placed in the context of Convention rights.[37]I very much doubt whether this way of putting the case even engages the Thlimmenos principle. In Thlimmenos the claimant argued that it was unfair not to differentiate him from others caught by a general rule. Here the general rule is that, exceptional cases apart, only those resident in England can have an abortion free on the NHS. The appellant is not someone caught by that rule who is seeking to be an exception to it; on the contrary, she is complaining that she has not been brought within it when she should have been. She is seeking to be differentiated from those who fail to comply with the rule rather than those to whom it is applied.[38]Even if I am wrong about that and Thlimmenos could in principle be engaged in a case like this, the question arises whether the conditions of its application are met. Mr Coppel, counsel for the Secretary of State, contended that there are still three hurdles facing the appellant. First, she has to show that any discrimination fell within the ambit of her Article 8 rights; second, she must show that the relevant discrimination was on one of the prescribed grounds; and finally, she will fail if the state can show that there is objective and reasonable justification.[39]Mr Coppel submitted that her case fails at each of these hurdles. Mr Justice King was minded to accept each of Mr Coppel’s submissions (although he was focusing on a direct discrimination argument rather than the Thlimmenos argument now pursued). The judge rejected the Convention argument on the grounds that the failure to provide state funded abortion did not fall within the ambit of Article 8. He also expressed the view, without actually deciding the points, that in any event any discrimination was not on one of the prescribed grounds, and that even if it was, there was objective and reasonable justification. I will consider these issues in turn.

The ambit point

[40]Mr Coppel submitted that the refusal to fund abortion services on the NHS did not fall within the ambit of Article 8. He observed that there is in general no obligation on the State to fund health care services of any description, let alone abortions: see R (Condliff) v North Staffordshire Primary Care Trust [2012] PTSR 420 paras. 41-50. He also argued that since it is established, at least in the current state of jurisprudence, that it is compatible with Article 8 to make abortions illegal (see A, B and C v Republic of Ireland(2011) 53 EHRR 13) there cannot conceivably be a right to have an abortion funded by the State. Accordingly, the failure to provide a free abortion service does not even begin to engage Article 8(1) and so could not be said to fall within the ambit of that Article.[41]In my judgment, that is too narrow a formulation of the concept. The scope of Article 8 has been widely defined. In Connors v UK(2005) 40 EHRR 9, para. 82, the Strasbourg court observed that it was to protect “rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others, and a settled and secure place in the community.”[42]In the current state of Convention law, although there is no right to an abortion under Article 8, the court in A, B and C stated in terms (para. 216) that the prohibition of abortion, at least when sought for reasons of health and well being, falls within the scope of Article 8(1) because it constitutes an interference with respect to their private lives. It is not unlawful because the interference is justified under Article 8(2).[43]Furthermore, once a State allows abortion in any circumstances, it must not structure its arrangements so as to frustrate or limit access to that right: Tysiac v Poland (2007) 45 EHRR 42. Similarly, if a State grants a right without being required to do so, the right may still fall within the scope of Article 8 so as to attract the protection of Article 14. In Petrovic v Austria(2001) 33 EHRR 14 the applicant, a father, complained that parental leave allowance was only available to mothers and that this was a breach of Article 14 read with Article 8. As to the question whether the complaint fell within the ambit of Article 8, the Strasbourg court pointed out that the limited scope of parental leave allowance could not amount to a failure to respect family life since there was no positive Article 8 obligation to provide financial support of this nature. Nonetheless since the purpose was to promote family life by allowing a parent to stay at home, the payment fell within the scope or ambit of Article 8 and Article 14 was therefore engaged (although the claim in fact failed because the discrimination was found to be justified.)[44]In P and S v Poland(2013) 129 BMLR 120 a teenage girl had faced practical difficulties when seeking to exercise her lawful right to abortion as permitted by Polish law. The Strasbourg court held that there had been an infringement of their Article 8 rights. The court said this (para. 111):
“The Court was of the view that effective access to reliable information on the conditions for the availability of lawful abortion, and the exercise of relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent: Evans v United Kingdom(2008) 40 EHRR 728.”
[45]The court also noted (para. 110) that a pregnant woman could suffer “anguish, anxiety and suffering entailed by her efforts to obtain access to abortion”; and that (para. 109) “the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter.”[46]In the light of these judicial observations, and bearing in mind the very broad meaning given to the concept of “the ambit” of an article, I consider that the denial of the right to a free abortion, thereby putting stress and pressure on women and sometimes their relatives who cannot afford to pay for an abortion, is treatment which engages Article 8(1) even if readily justifiable under Article 8(2). Moreover, once a state has agreed to fund abortions for some women, as the Secretary of State in England has done, I have no doubt that it is conferring a right falling within the ambit of Article 8 since it bears directly on personal autonomy. This is particularly so given that for some women, as for these appellants, a child and her mother, additional stress may result from concerns about finding the money necessary to enable her to have access to a private abortion. The rules determining who should receive the free service and who should be excluded may therefore engage the discrimination principle in Article 14.

Is there discrimination on a prescribed ground?

[47]The characteristics which it is said place women from Northern Ireland in a materially different position from other non-residents are that the law in Northern Ireland in general makes abortion unlawful; and that the affected women are UK citizens. The question is whether these factors would constitute discrimination falling within the meaning of “other status” in Article 14. No doubt being a UK citizen would be, but that on its own is not the basis of any discrimination, and in my judgment the particular criminal status of the law on abortion would not fall within the concept of “other status”. Pregnancy itself would be, but I do not see how the state of the law regulating the termination of pregnancy can be said to constitute a personal characteristic.[48]In my judgment that conclusion is supported by the decision of the Strasbourg court in Magee v United Kingdom 920010 31 EHRR 35. The claimant was convicted of a terrorist offence and given 20 years’ imprisonment. He was arrested and detained in Northern Ireland and was subject to its laws. These were more favourable to the state than the laws then operating in England and Wales: he could be detained for a longer period without the right to see a solicitor; and adverse inferences could be drawn from his silence. He alleged that he was thereby subject to an alleged violation of Article 6 read with Article 14. The Strasbourg Court did not accept that Article 14 was infringed. He was not treated differently because of any personal characteristic but because of “the geographical location where the individual is arrested and detained.”[49]As Mr Cragg points out, the authority is not directly in point because the appellant’s differential treatment here took place when she was in England. Her complaint is not that she was treated differently under Northern Ireland law which differs from English law; it is that she ought to have been treated differently under English law. Even so, I accept Mr Coppel’s submission that the substance of her complaint is that she ought to have been treated differently in England because she is subject to a different legal rule in Northern Ireland. Magee supports the conclusion that this difference in the laws operating in constituent parts of the UK is not a personal characteristic.[50]I therefore agree with Mr Coppel that there is no discrimination on any of the prescribed grounds. The critical factor which it is alleged demands the different treatment of women in Northern Ireland is the state of the law which is not caught by Article 14. This does raise a point of some interest, however. It assumes that when applying the Thlimmenos principle, the factor or factors which are relied upon in order to establish that the claimant is in a significantly different situation must be one of the Article 14 prescribed grounds. Logically there is no reason why that should necessarily be so. However, given that the basic concept of direct discrimination itself is so linked, it is in my judgment likely that the Strasbourg court would subject the Thlimmenos principle to the same limitation.

Justification

[51]Even if the alleged justification for different treatment under the Thlimmenos principle need not be linked to the prescribed grounds and a prima facie case has been made out of Thlimmenos discrimination, I have no doubt that the Secretary of State is entirely justified not to make an exception for women from Northern Ireland. I reach that conclusion essentially for the reasons already given with respect to the public law right. The Secretary of State is justified in taking the view that free services should be provided principally to those residing in England, and that it is for the constituent governments of the UK to determine what services they will provide to their own residents.[52]The difficulties facing the appellant are compounded by the fact that her submission is that the Secretary of State should choose to make additional funds available for one particular type of health provision, namely services related to abortions, and for one particular group of persons. The Strasbourg court has on many occasions said that there is considerable leeway afforded to governments in relation to economic and social matters, particularly where expenditure is concerned: see, for example, the discussion by Toulson LJ, as he was, in Condliff, paras. 41-49. I do not accept that this is one of the very exceptional circumstances when the state will be under a positive Article 8 duty to provide a benefit free of charge.

The intervener’s submissions

[53]Alliance for Choice as intervener has made certain additional arguments which were adopted by the appellants. It has focused upon certain international instruments which it says have an important bearing upon the exercise of discretion by the Secretary of State. First, there is the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) which, as its title suggests, requires states to eliminate all such forms of discrimination. Article 12 requires eliminating discrimination in the field of health care, and includes “granting free services where necessary”. Article 16(1)(e) requires states to eliminate discrimination against women in all matters relating to family relations including ensuring the right “to decide freely and responsibly on the number and spacing of their children and to have access to the information … and means to enable them to exercise these rights.”[54]Oversight of that Convention is provided by the Committee on the Elimination of Discrimination Against Women. That Committee has expressed concern about the very restrictive abortion laws in Northern Ireland, and observed that it encourages women to seek abortions elsewhere in the UK. It has urged the UK to have a national dialogue on the question and it has interpreted Article 12 as requiring that criminal laws on abortion be amended. It has also recommended that women should not be discriminated against by having to pay high fees for healthcare services or being distant from health facilities.[55]Second, reliance is placed upon the fact that the UN Committee on Economic, Social and Cultural Rights has called upon the UK to amend the law in Northern Ireland to bring it into line with the rest of the UK, or at least to allow abortion in cases of rape, incest or foetal abnormality.[56]These international instruments are not part of the law of the UK since they have not been incorporated directly into English law. But Mr Bunting, counsel for the intervener, submitted in his written skeleton argument that they are relevant because of the well established principle that the Convention itself should be applied consistently with international human rights’ standards. They therefore have a bearing on the construction of Convention articles as Lord Reed noted in the Supreme Court in R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC [2015] 1 WLR 1449 paras. 82-84, citing Demir v Turkey(2008) 48 EHRR 1272, para. 69. Mr Bunting submits that they are relevant to the question whether the claim falls within the ambit of Article 8 (which I have found to be the case in any event) and whether the practice of not funding abortions for Northern Ireland residents is justified and/or proportionate.[57]In my judgment, these provisions are of no real assistance in this case. These and various other international instruments were taken into consideration by the Strasbourg court in A, B and C v Ireland but they did not cause the court to conclude that the abortion law in the Republic of Ireland contravenes Article 8 rights and it is not suggested in this case that the law of Northern Ireland does so. Absent any such challenge, the argument has to be that the authorities in England have an obligation by virtue of these international treaties to take steps to circumvent the effect of a law passed in Northern Ireland. Because the law in Northern Ireland is so harsh, the Secretary of State must mitigate the effects and make abortion services available in England without charge.[58]I agree with Mr Coppel that it is difficult to see how this argument can be sustained in circumstances where there has been no challenge by these appellants to the abortion law in Northern Ireland itself. If it is consistent with the appellant’s human rights that she be denied abortion altogether in Northern Ireland, it is difficult to see how it could be a breach of her human rights by the Secretary of State when she is in fact allowed access to abortion services in England albeit at a cost. Nor can it sensibly be argued that Article 8 requires the Secretary of State to undermine or mitigate the consequences of the abortion law in Northern Ireland by providing abortions free of charge in England.[59]For these reasons, I would dismiss the appeal.

Lord Justice McCombe:

[60]I agree.

Lord Justice Moore-Bick:

[61]I also agree.

Cited in 5 later judgments