A & Anor, R (on the application of) v Secretary of State for Health [2014] EWHC 1364 (Admin)

Case No CO/656/2013[2014] EWHC 1364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT MANCHESTER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2014
Before
THE HONOURABLE MR JUSTICE KING
Between
The Queen on the application of A (by her litigation friend B)ClaimantsAnd BClaimantThe Secretary of State for HealthDefendant
Mr Stephen Cragg QC and Dr Austen Morgan (instructed by Maxwell Gillott Solicitors) for ClaimantsMr Jason Coppel QC (instructed by the Treasury Solicitor’s Department) for DefendantHearing Hearing dates: 10 th and 11 th July 2013 plus further written submissions of 8 th August, 11 th November and 28 th November 2013.
Judgment
[1]These proceedings came before me as a rolled up hearing. I grant permission and proceed to give judgment on the substantive claim.[2]This claim concerns the lawfulness of the extent of and limitations on the provision of abortion services by the National Heath Service (‘NHS’) in England to a person present in England but ordinarily resident in Northern Ireland. There are two claimants in this case: A, who is a minor, and B who is her mother. For ease of reading, A is referred to throughout as the claimant and B is referred to as her mother or litigation friend.[3]The claim does not however involve any challenge to the law of Northern Ireland on abortion or the extent of the provision of abortion services in Northern Ireland. The clamant does not seek to challenge the law of Northern Ireland as inadequate or contrary to her rights.[4]Nor does the claim involve a complaint that the claimant was not able to access abortion services in England as such. She was able to access such services, albeit they were those provided privately by an independent clinic, outside the NHS for a fee, and no obstacles were put in her way in this regard.[5]The real complaint here is that the claimant was unable to access in England abortion services free of charge.

The law on abortion as between the two jurisdictions

[6]The law on abortion is stricter in Northern Ireland than it is in England and Wales. The Abortion Act 1967 (‘the 1967 Act’), which liberalised the position in England and Wales when enacted, was expressly not extended to Northern Ireland (see section 7(3)). The liberalisation in the 1967 Act took effect by specifying the circumstances in which a person was not to be guilty of an offence ‘under the law relating to abortion’ when a ‘pregnancy is terminated by a registered practitioner’. I accept the point emphasised by Mr Cragg QC on the part of the claimant that the key concept is termination by a registered practitioner. Section 1(1) of the 1967 Act provides as far is material:
‘(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith - (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’
[7]The availability of lawful abortion in Northern Ireland is still governed by the legal framework equivalent to that which prevailed in England and Wales before the 1967 Act was passed, that is to say the statutory provisions of ss. 58 and 59 of the Offences Against the Persons Act 1861 creating offences relating to attempts to procure abortion (respectively, ‘administering drugs or using instruments to procure abortion’ and ‘procuring drugs etc. to cause abortion’) and s.25(1) of the Criminal Justice Act (Northern Ireland) 1945 which replicated the provisions applicable in England of section 1(1) of the Infant Life Preservation Act 1929 (creating a new offence of child destruction to cover a loophole between abortion and infanticide), and the common law, in particular the courts’ interpretation of the defence recognised at common law and held to be incorporated into the 1861 Act offences (as well as expressly provided for by the 1929 and 1945 Acts) where the act was done for the purpose of preserving the life of the mother. (See R v Bourne [1939] 1 KB 687).[8]The effect of the law in Northern Ireland is summarised in the judgments of the Court of Appeal in Northern Ireland in Family Planning Association of Northern Ireland v Minister For Health and Social Services and Public Safety [2004] NICA 37, in particular at paragraph 12:
‘Operations in Northern Ireland for the termination of pregnancies are unlawful unless performed in good faith for the purpose of preserving the life of the mother; • The ‘life’ of the mother in this context has been interpreted by the courts as including her physical and mental health; • 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.’
[9]Not surprisingly, the differences in the legal position between the two jurisdictions, have led to a steady stream of pregnant women ordinarily resident in Northern Ireland travelling to England to access abortion services which would not be available to them in Northern Ireland. The statistics for 2011 (the latest available) show that notifications to the Department of Health indicate that there were 6,151 abortions for non-residents carried out in England in hospitals and clinics of which 1,007 were residents of Northern Ireland (some 4,149 were residents of the Irish Republic).

The background to this claim

[10]The claimant at the material time was a 15 year old girl. She is ordinarily resident in Northern Ireland. In October 2012 she with her mother, her litigation friend, travelled to England to have her pregnancy terminated at an independent clinic (the Marie Stopes clinic) in Manchester at a cost of £600.00 plus travel costs of some £300.00, of which she (or rather her mother) had herself to contribute one half, the other half being provided by an Northern Ireland voluntary organisation (the Abortion Network) which had advised and assisted her in the process. They had advised her (accurately) that in their experience women who travel from Northern Ireland to England are not permitted to have a termination on the NHS and therefore have to make their own private arrangements.[11]The witness statement of the claimant’s mother sets out the background to the claimant being denied a termination in Northern Ireland by the medical authorities and to her having to travel to England if she were to obtain a lawful abortion. She speaks of finding ‘the whole experience and stress of not knowing whether it was going to be possible to have the procedure and raise the funds was harrowing and had a serious impact on (A) and myself. Had we known from the outset that we would be able to travel to the UK and that (A) could have the procedure free on the NHS, this would have significantly reduced the stress and trauma she experienced’.[12]That witness statement continues in these terms:
‘Having now had the opportunity of taking legal advice in England, I understand that publicly funded health care services are intended to be free at the point of use for all UK residents. I feel my daughter has been treated most unfairly, because when she was required treatment in another part of the United Kingdom, she did not get it, and was offered no assistance by the state health care system. If my daughter had had some other health condition, which necessitated her travelling to another part of the UK for treatment I believe that no obstacles would been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs.’
[13]The emphasis is the emphasis of the court because the highlighted sentence reflects a misunderstanding of the legal position in England as regards access to abortion services on the NHS at the material time. Unless the claimant were an emergency case, she in all likelihood would have been denied treatment on the NHS (it appears she did not in fact seek out such NHS facility) but not because she was seeking an abortion as such, nor because she was a Northern Ireland resident as such, but because she was not ordinarily (or rather ‘usually’) resident in England (or more narrowly not ordinarily/usually resident in the area of the material local Primary Care Trust in Greater Manchester to which she went), which ‘ordinary/usual residence’ is, as explained below, the primary basis upon which the provision of secondary care services, such as abortion services, are provided by the NHS in England to residents of the United Kingdom.[14]This residence basis for the provision of such services on the NHS in England is reflected in the 2011 statistics to which I have already referred. On the material before me, of the 1,007 abortions carried out for residents of Northern Ireland, the vast majority were provided in fee charging independent private clinics. Only five were provided on the NHS and hence only 5 were provided free of charge in England.

The legal position in England

[15]It follows that these proceedings concern directly the legislative framework/provisions under the National Health Service Act 2006 for the provision of medical/health services through the National Health Service in England, as distinct from the provision of such services through the health service provided in other parts of the United Kingdom, including Northern Ireland but of course also Scotland and Wales. The facts of the claim engage the material statutory provisions as they stood immediately before the 1st April 2013. New statutory arrangements for the commissioning and provision of services in England under the 2006 Act came into force on 1st April 2013.[16]It is further to be emphasised that the defendant is sued in his capacity as the Secretary of State for Health for England. At all times material to the facts of this claim, the defendant was under the general duty in section 1 of the National Health Service Act 2006 to ‘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 physical and mental illness. Under subsection (2) of section 1 the defendant must ‘for that purpose’ provide or secure the provision of services in accordance with the Act.[17]Under subsection (3) the services so provided must be provided free of charge except in so far as the recovery of charges is expressly provided for under any enactment.[18]Equivalent provisions exist in legislation in relation to a similar duty imposed upon the relevant authorities in the other parts of the United Kingdom, that is to say Wales, Scotland and Northern Ireland. See for example s.1 of the National Health Service (Wales) Act 2006, imposing a duty on Welsh ministers in relation to the people of Wales and art 4 of the Health and Personal Services (Northern Ireland) Order 1972 imposing a duty upon what is now the Department of Health, Social Services and Public Safety in relation to the people of Northern Ireland.[19]Consistent with that to which I have already referred, and in the context of the Devolution of Powers within the United Kingdom, Health Policy within Northern Ireland, being neither a ‘reserved’ nor an ‘excepted’ matter, is a ‘transferred matter’ pursuant to s 4 of the Northern Ireland Act 1998 and is thus within the legislative competence of the Northern Ireland Assembly. It is accordingly, in the context of the service provision in issue in the present proceedings, for the relevant authorities in Northern Ireland to decide to what extent abortion services falling within the law applicable to Northern Ireland should be provided by the health service in Northern Ireland consistent with the duties imposed upon them under the applicable legislation.[20]Further criminal law itself in Northern Ireland is devolved. The criminal law relating to the termination of pregnancy in Northern Ireland is itself a ‘transferred matter’ following the devolution to Northern Ireland of policing and justice powers in 2010.[21]It must therefore, as the defendant submitted, be for a matter peculiarly for the Northern Ireland Assembly whether to amend the law governing the availability of abortion in Northern Ireland, the assembly being accountable to the electorate of Northern Ireland for its decisions in this regard, and if abortion in Northern Ireland did become lawful in a greater range of circumstances, it would again be for the Northern Ireland authorities to decide to what extent these wider abortion services should be provided free of charge by the health service there.

The position in England prior to 1st April 2013

[22]The 2006 Act as it stood before April 2103 (or indeed since) did not impose any absolute duty on the defendant to provide abortion services. The provision of such services fell within the qualified duty of the defendant under section 3(1) of the Act under which he had a qualified duty to provide certain (secondary) care services as he judged ‘necessary’ ‘to meet all reasonable requirements’, and certain of those services are defined in terms of those he ‘considers are appropriate as part of the health service’. Thus section 3(1) provided that ‘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 appropriate as part of the heath 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.’[23]It is common ground that it is subsections 1(c) and (d) that enable the provision of abortion and ancillary services in England.[24]Prior to April 2013 the functions of the defendant under section 3(1), in other words the performance of the qualified duty to provide the identified services under section 3 in England, were delegated to (inter alia) local Primary Care Trusts (PCTs). This was the effect of Regulation 3(2) of The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administrative Arrangements) (England) Regulations SI2002/2035 as amended (‘The Function Regulations’). Under section 7 of the 2006 Act as it then stood the defendant was empowered to direct inter alia a PCT to exercise any of his functions relating to the health service and under section 8 the defendant was empowered to give directions to any such PCT about their exercise of any such functions.[25]The persons to whom a PCT were empowered to provide such section 3(1) services were circumscribed by the provisions of Regulation 3(7) of the Function Regulations which so far as residents within the United Kingdom were concerned, save for limited exceptions, such as patients with serious mental illness or in the case of emergency services, confined those persons to its practice patients or persons ‘usually resident’ (as distinct from merely being present) in its area.[26]Thus Regulation 3(7) provided as far as is material: (7) Every Primary Care Trust shall exercise the functions referred to in paragraphs (1) and (2)(a) in so far as those functions consist of providing or securing the provision of services to patients, other than the services referred to in sub-paragraph (b) of this paragraph, for the benefit of – (i) the practice patients … of persons providing primary medical services under Part 1 of the Act in respect of whom the Primary Care Trust is the relevant Primary Care Trust; (ii) persons usually resident in its area or resident outside the United Kingdom who are present in its area, and who do not fall under the responsibility of another Primary Care Trust under head (i) above; (iii) qualifying patients resident in Scotland, Wales or Northern Ireland who are present in its area and who do not fall under the responsibility of another Primary Care Trust under head (i) above; (iv) qualifying patients present in Wales who are liable to be detained under the Mental Health Act …(b) in so far as those functions consist of providing or securing the provision of – (i) accident and emergency services and ambulance services; (ii) services provided at walk-in centres; (iii) facilities and services for testing for, and preventing the spread of, genitourinary infections and diseases and for treating and for caring for persons with such infections and diseases; (iv) services which the Secretary of State has a duty to provide under section 5(1)(a) of the Act or which he may provide under Schedule 1 to the Act (medical inspection and treatment of pupils); (v) services which the Secretary of State has a duty to provide under section 5(1)(b) of the Act (services relating to contraception); (vi) health promotion services; (vi) services in connection with drug and alcohol misuse; (viii) any other services which the Secretary of State may direct; for the benefit of all persons present in their area. The emphasis in the above exposition of the material regulation of the Function Regulations is that of this court.[27]It was as a result of these provisions (no further material direction having been under Reg. 3(7)(b)(viii)) that at the material time of this claim a local PCT in England would have had the power to provide abortion services to a person who was ordinarily resident in Northern Ireland and who was not a practice patient of the PCT, only in two circumstances. First, if she were a patient with serious mental illness within the meaning of ‘qualifying patients’ for the purposes of Reg. 3(7)(a)(iii), that is the meaning in s130C of the Mental Heath Act 1983. Secondly there was the power in Reg. 3 (b)(i) to provide ‘emergency services’ which clearly might involve the provision of abortion services in a emergency. It would be for a PCT to judge whether their limited powers to provide abortion services to such women were engaged, based on the particular circumstances of the case.[28]As already explained, the claimant was provided with abortion services not by the NHS but by an independent clinic in Manchester and it would appear, did not approach the NHS in England to obtain such services but it is conceded by the defendant that it is likely she would have been refused treatment if she had done so, unless her case was considered an emergency.[29]The point emphasised throughout these proceedings however by the defendant is that the limitations on the power of a PCT under the Function Regulations to provide such services were not directed to, or targeted towards, residents of Northern Ireland as such. Nor were they targeted at abortion services in isolation. They reflected a residence based system of qualification for treatment of a UK resident by a PCT in respect of a number of secondary care services, which would have produced the same outcome for any prospective patient seeking abortion services in for example (material to this claim) Greater Manchester who like the claimant was neither registered with a GP practice there or usually resident there, wherever elsewhere it was within the UK the patient was usually or ordinarily resident, be it for example elsewhere in England, or more pertinently for present purposes, in Scotland or Wales as well as Northern Ireland.[30]The case for the defendant throughout these proceedings moreover is that this residence based system for responsibility for patients and for the accessing of the identified health care services in England reflected the separation of powers between the health services in the four jurisdictions of the United Kingdom provided for in primary legislation to which I have already referred. As was put by Mr Coppel QC in his written argument those ordinarily resident in Scotland and Wales as well as those in Northern Ireland are expected in general to access the relevant services from the health service of those jurisdictions, consistently with the duties imposed upon the relevant authorities to provide a health service for the people of those countries.

The position since April 2013

[31]Although new statutory arrangements for the commissioning of and provision of services under the 2006 Act came into force on the 1st April 2013 they still reflect the same residence based system – subject to exceptions – for responsibility for patients and for the accessing of section 3(1) services, including abortion services. And as they currently stand someone in the position of the claimant as a person resident in Northern Ireland would be in like position as before, as regards access to NHS abortion services in England (and any other listed service under section 3 of the Act) (although see below the existence now of a discretion in the local health body, the clinical commissioning groups).[32]Thus:(1) There is still the general duty on the Secretary of State under section 1 (1) to continue the promotion in England of a comprehensive health service designed to secure the physical and mental heath ‘of the people of England’ and in the prevention, diagnosis and treatment of physical and mental illness.(2) Clinical commissioning groups (CCGs) have now been established (under s 14D of the 2006 Act and PCTs have been abolished (s 34(1)). The Function Regulations have been revoked.(3) Under the new section 3 of the Act the qualified duty to provide secondary care services necessary to meet all reasonable requirements which had previously been upon the defendant so to provide ‘throughout England’, has now been passed as a local responsibility to individual CCGs. Thus a CCG is now by primary legislation subject to the qualified duty in s 3(1) of the Act – equivalent to the duty formerly placed on the Secretary of State – ‘to arrange for the provision of the following to such extent as it considers necessary to met the reasonable requirements of the persons for whom it has responsibility’.(4) Persons for whom a CCG has responsibility for the purposes of this duty are defined in section 3(1)A as (a) persons who are provided with primary medical services by a member of the group and (b) persons who usually reside in the group’s area and are not provided with primary medical services by a member of any clinical commissioning group. Moreover the effect of regulation 2(1)(a) and (2)(a)(b)(c) of the National Health Service (Clinical Commissioning Groups - Disapplication of Responsibility) Regulations 2013 (the ‘Disapplication Regulations’) is that, for the purposes of section 3, s. 3(1A), and hence the section 3 duty, does not apply to a person who is usually resident in Northern Ireland (or Scotland or Wales) albeit that person is registered with a member of a CCG, whether in a temporary or longer term capacity and would otherwise fall within the definition of a person for whom it has responsibility.(5) However as was the case for the PCTs under the Function Regulations, CCGs are still under a section 3 duty/to commission ambulance and accident and emergency services for any person present in its area and are still under a section 3 duty towards a qualifying patient within the meaning of Mental Health Act present in its area who is a resident of Northern Ireland. This is the effect of regulation 4 and respectively paragraphs 2(a) and 2(i) of Schedule 1 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (‘the Standing Rules’ Regulations) made under section 6E of the 2006 Act. Regulation 4 of the Standing Rules provides in terms that a CCG for the purposes of sections 3 and 3A of the Act has responsibility for the persons listed in paragraph 2 of Schedule 1 ‘in addition to those mentioned in section 3(1)(A)’.(6) Further, under section 3A of the Act as now amended, a CCG does have a power to commission services for persons for whom it has responsibility as defined in section 3(1)(A). The Disapplication Regulations do not apply to this power. It follows that a CCG could now choose to exercise its powers to commission services under s 3A, including abortion services, for a person ordinarily resident in Northern Ireland (or indeed Scotland or Wales) if such services would improve the physical or mental health or treatment of any person, and if such person was registered with a member of the group (albeit in a temporary capacity) and hence would fall within 3(1)A(a).[33]The defendant summarises the effect of the post April changes in this way:
‘Therefore under the new regime the CCGs are in a slightly different position than were PCTs vis a vis the provision of services to persons ordinarily resident in Northern Ireland. Some services must be provided based on the presence in the CCGs’ area; no such duty applies to other services vis a vis persons ordinarily resident in Northern Ireland (and Scotland and Wales). But there is discretion to commission services, including abortion services, for the benefit of all potential patients, including patients ordinarily resident in Northern Ireland. In this way, decision-making as to the appropriate provision of certain services has been devolved from the Secretary of State to the level of CCGs.’

The Claim: the grounds of challenge

[34]The grounds of challenge directed at the defendant Secretary of State being pursued in the context both of the legislative framework as it stood at the time of the facts, i.e. pre April 2013, and that post April 2013, although originally wide ranging, are now two fold. They each now focus exclusively on what is said to be the unlawful policy of the defendant with regard to the availability of abortions in England to women resident in Northern Ireland. As finally formulated in Mr Cragg’s skeleton argument, the sole remedies sought in the claim are:
‘Declarations … that the policy adopted and explained by the defendant is unlawful either because it leads to an unlawful exercise of the defendant’s functions under the NHS Act (both before and after April 2013) and/or because the policy is incompatible with the claimant’s Convention rights.’
[35]The first ground recognises that as the legislative provisions stood as at October 2012 it was the provisions of the Function Regulations which stood in the way of the claimant as a non resident in England, obtaining abortion services in England and there is now no challenge to the lawfulness of those Regulations as such. Nor is there a challenge as a matter of principle to the lawfulness of a residence based system for the provision of and access to secondary care services in England, to and by residents of the United Kingdom. As the defendant submits it would be difficult to maintain such an all embracing challenge to such a system. The rationale for such a system put forward by the defendant reflecting the separation of powers between the health services in the different jurisdictions of the United Kingdom and as explained in paragraphs 29 and 30 above appears to me to be unimpeachable.[36]Accordingly the claimant focuses upon the failure of the defendant in discharge of his section 3 duty under the 2006 Act to make a specific exception to the residence based system, for residents of Northern Ireland to enable them to access abortion services on the National Health Service in England in a greater range of circumstances than those currently allowed for. The defendant does not dispute that under the pre April 2013 statutory regime he had the ready means by which to create such an exception, for example by introducing amendments to Reg. 3 of the Function Regulations (albeit subject to the will of Parliament expressed through the negative resolution procedure) or by giving directions falling within Reg. 3(7)(b) (viii) conferring power upon PCTs to provide abortion services to women who are ordinarily resident in Northern Ireland but who are present in their area. However the defendant asserts that he did not do so for justifiable reasons.[37]The claimant accepts that the duty under section 3 was a qualified duty to make provision for health care services listed in that section throughout England to ‘such extent as he considers necessary to meet all reasonable requirements’ which involves ‘a degree of judgment on the part of the defendant as to the circumstances in which he will provide the services ... in certain circumstances he can exercise his judgment and legitimately decline to provide … services’ (per Lord Woolf in R v North and East Devon Health authority ex p. Coughlin [2001] QB 213 at paragraph 24.[38]The claimant’s case however is that the defendant in breach of that duty to provide what is ‘necessary to meet all reasonable requirements’, has failed to make provision for the women who it is known will travel from Northern Ireland to England each year in substantial numbers to seek abortion services. Mr Cragg prays in aid the analysis of the section 3 contained in the judgment of HHJ Pelling QC (sitting as a deputy HCJ) in R (Booker) v NHS Oldham [2010] EWHC 2593 (Admin) at paragraph 23: ‘... Section 3 creates an enforceable duty to provide care facilities for those who are ill or have suffered illness subject to the qualification that the Secretary of State or the PCT as his delegate need not provide such service where he or it does not consider they are reasonably required or would be necessary to meet a reasonable requirement’.[39]Mr Cragg also prays in aid the obligation upon PCTs under s 2 of the Healthcare Act 2009 to have regard to the NHS constitution for England (now re-enacted as an obligation upon the defendant in section 1B of the 2006 Act as amended since 1 April 2013) paragraph 2 of which provides that ‘Access to NHS services is based on clinical need, not an individual‘s ability to pay’.[40]Mr Cragg argues that there is self evidently a ‘reasonable requirement’ for the provision of abortion services in England to women travelling in such numbers from Northern Ireland and to judge it to be ‘not necessary’ to meet that requirement save in the limited circumstances of emergency and so forth, is in itself a perverse judgment.

Irrelevant and hence unlawful policy considerations

[41]At the centre of this ground of challenge is however a more nuanced attack on the way the defendant has gone about discharging his section 3 duty in England in the context of abortion services and the known requirement of residents from Northern Ireland, namely by reference to the policy adopted by the defendant set out in the letter of 15th January 2013 in reply to the claimant’s pre action letter. It was expressed in these terms (the emphasis is the emphasis of the court): ‘Substantial numbers of women travel from Northern Ireland to access abortion services in England and Wales. In 2011 … 1007 abortions were provided in England and Wales to women ordinarily resident in Northern Ireland. However the vast majority are provided in the independent sector clinics and are not funded by the NHS. … That reflects the limited legal powers described above and the policy of the Government which is 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. Residents of Northern Ireland are entitled to access abortion services in Great Britain but in general they must make their own private arrangements for so doing’.[42]The submission is made that the unavailability and unlawfulness of the service provision in Northern Ireland is an irrelevant and indeed irrational and hence unlawful consideration for the defendant to take into account in discharge of the section 3 duty. It was the clinical needs of the women concerned seeking the service provision in England which should have been the relevant factor, not where they came from within the UK or more particularly the unavailability of the service in that part of the UK from which they came. It is said by Mr Cragg to be irrational to reach the conclusion that certain services not being available in one part of the UK, they should not be provided in England to those who came from that part.[43]Since the hearings were closed the claimant in a Note dated 13 November 2013 drew the court’s attention to the possibility that the defendant has taken a further irrelevant and indeed misconceived factor into account in formulation of policy, namely that it might be unlawful, in the sense of being against the criminal law, for a GP in Northern Ireland to refer a women for an abortion outside Northern Ireland. This is based on the Hansard reported observations of Paul Goggins MP, then Minister of State at the Northern Ireland Office on 15 July 2009, that ‘it was not clear’ to him that such a GP would have the power of referral. The Note further informed this court that the DPP for Northern Ireland in the context of new abortion guidelines in Northern Ireland ‘has confirmed that it would not be a crime to assist a woman to go elsewhere in the UK for a lawful termination’. The defendant however has made clear that he ‘has never sought to justify his current policy with regard to the availability of abortions to women resident in Northern Ireland on the grounds that it would be unlawful for a GP to refer a woman for an abortion to health services in England’ (Defendant’s Post Hearing Note of 28th November 2013). I accept this to be the case.[44]Although the statutory framework has altered as explained above, and although the defendant no longer has a power of direction under the Function Regulations, and the primary section 3 duty is on the CCGs, the defendant accepts that he still has an overriding responsibility for the Health Service in England reflected in section 1 of the 2006 Act including powers to direct that certain services are provided, (and the claimant highlights further the section 1B duty on the defendant to have regard to the NHS constitution; the section 1C duty on the defendant ‘to have regard to the need to reduce inequalities’; the section 3B power of the defendant to make regulations for the new NHS Commissioning Board to commission services; the regulation making powers of the defendant under section 6E to require the Board or CCGs to arrange for specified services to be provided).[45]Hence post April 2013 the defendant accepts that he retains the means to take steps to require CCGs to make provision of abortion services on the same basis to persons resident outside their areas including persons ordinarily resident in Northern Ireland. These are detailed in his Notes to the Court dated 8 August 2013 and 28 November 2013 and would involve amendment to paragraph 2 of Schedule 1 to the Standing Rules and to regulation 2 of the Disapplication Regulations although he says this would be a highly unusual ‘indeed unprecedented step’, to single out a ‘particular, non- emergency medical service in this way’.[46]Further hence the claimant maintains this first ground of challenge in the context of the post 2013 statutory regime on the ground that the defendant’s ‘unlawful policy’ ‘leads to an unlawful exercise of the defendant’s functions under the NHS Act (both before and after April 2013)’.

The Human Rights Challenge

[47]The second ground of challenge is again to the policy of the defendant with regard to the availability of abortions in England to women resident in Northern Ireland which is said to be incompatible with the claimant’s rights under the European Convention on Human Rights and hence unlawful pursuant to section 6(1) of the Human Rights Act 1998.[48]Her case is that in breach of Article 14 she has been directly discriminated against in relation to the enjoyment of her rights under the Convention, those rights being those under Art 8, namely the right to respect for her private life. Article 14 provides:
‘The enjoyment of the rights and freedom 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’
. The claimant does not assert a violation of her Article 8 rights as such. It is sufficient she says to maintain a discrimination case under Art 14 that she came within the ambit of a convention right, in this case Article 8.[49]The submission proceeds as follows: (1) When the claimant seeks to access abortion services in England provided for in accordance with the law in England her Article 8 right to respect for her private life is engaged. She comes ‘within the ambit of Article 8’. For this proposition she relies upon the decision of the European Court in Tysiac v Poland (2007) 45 EHRR 42 where the court found (at paragraph 108) that ‘legislation regulating the interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant her private life becomes closely connected with the developing foetus’. That was a case in which it was held that although there was no convention right (whether under Art 8 or otherwise) to an abortion as such, Article 8 did impose a positive obligation on any State which did provide for a lawful abortion in certain circumstances, to provide an effective and accessible procedure allowing an individual to establish whether or not she was entitled to a lawful abortion. Mr Cragg relies further upon the general statement of principle in paragraph 109:
‘109. The Court also reiterates that “private life” is a broad term, encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world. Furthermore, while the Convention does not guarantee as such a right to any specific level of medical care, the Court has previously held that private life includes a person’s physical and psychological integrity and that the State is also under a positive obligation to secure to its citizens their right to effective respect for this integrity. The Court notes that in the case before it a particular combination of different aspects of private life is concerned. While the state regulations on abortion relate to the traditional balancing of privacy and the public interest, they must-in case of a therapeutic abortion be also assessed against the positive obligations of the State to secure the physical integrity of mothers-to-be.’ (2) She is then discriminated against on a ground falling within Article 14, namely her place of residence within the UK, namely her place of residence in Northern Ireland, which she says is within the concept of a ‘personal characteristic or status’
. For this latter proposition she relies upon a passage in the judgments of the European Court in Carson v UK (2010) 51 EHRR 13, where is recorded at paragraph 66:
‘The Chamber held that in the circumstances of the case, ordinary residence, like domicile and nationality, was to be seen as an aspect of personal status and that place of residence, applied as a criterion for the differential treatment of citizens in the grant of state pensions, was a ground falling within the scope of Art 14.’
The emphasis is the emphasis of the court. Further as Mr Coppel pointed out, the passage referred to relates only to the recital of that which had been stated by the lower Chamber. The material passage in the judgment is that at paragraph 70: ‘The Grand Chamber agrees with the Chamber’s conclusions on this issue. It has established in its case law that only differences in treatment based on a personal characteristic (or “status”) by which persons or groups of persons are distinguishable from each other are capable of amounting to discrimination within the meaning of art. 14. However, the list set out in art. 14 is illustrative and not exhaustive, as is shown by the words “any ground such as”. It further recalls that the words “other status” (and a fortiori the French “toute autre situation”) have been given a wide meaning so as to include, in certain circumstances, a distinction drawn on the basis of a place of residence. Thus, in previous cases the Court has examined under art. 14 the legitimacy of alleged discrimination based, inter alia, on domicile abroad and registration as a resident. In addition, the Commission examined complaints about discrepancies in the law applying in different areas of a single contracting state. It is true that regional differences of treatment, resulting from the application of different legislation depending on the geographical location of an applicant, have been held not to be explained in terms of personal characteristics. However, as also pointed out by Stanley Burnton J., these cases are not comparable to the present case, which involves the different application of the same pensions legislation to persons depending on their residence and presence abroad.’ (3) There is discrimination because there is difference of treatment in analogous or relevantly similar situations (applying the principles established in DH and Others v Czech Republic at paragraph 175). The claimant would say that she is treated differently from all other citizens of the United Kingdom as regards access to ‘state funded abortions’ because unlike citizens ordinarily resident in England, Scotland or Wales, she has no option of returning to her place of ‘usual residence’ in order to access a state funded abortion; (4) The claimant accepts that once a difference in treatment is shown, for there to be a breach of Art 14 there has to be no objective and reasonable justification but the onus is on the defendant to justify such difference (DH at paragraphs 175-81), a burden which she submits has not been discharged. Mr Cragg accepts further that the State enjoys a margin of appreciation but this on the case-law is greater the more the issue is one of economic or social policy and that ‘when it comes to individual rights, such as Article 8 right, Strasbourg is not inclined to defer’, citing Stec and others v UK (2006) 43 EHRR 47, paragraphs 51-2.[50]On all this I was referred to the statement of principle in Burden v UK (2008) 47 EHRR 38 at paragraph 60:
‘The court has established in its case law that in order for an issue to arise under Art 14 there must be a difference in the treatment of persons in relatively similar situations. Such a difference is discriminatory if it has no objective and reasonable justification; in other words if it does not pursue a legitimate aim or if there is not a reasonable relationship or proportionality between the means employed and the aim sought to be realised. The contracting states enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social; strategy.’
The court’s conclusions Unlawful policy leading to a breach of the section 3 duty (and the unlawful exercise of the defendant’s functions under the 2006 Act post April 2013)

The court’s conclusions

[51]Ultimately I have not been persuaded by the claimant’s submissions under this head.[52]The starting point still has to be that the residence based system for the responsibility for the provision of and for the accessing services listed in section 3 of the 2006 Act pre April 2013, as reflected in the Function Regulations, (and the new statutory framework since April 2013) which is the source of the limited circumstances in which someone in the position of the claimant could access abortion services provided by the NHS in England, is in my judgment an entirely rational exercise of the defendant’s target duty under section 1 of the 2006 Act to promote a comprehensive health service and his qualified duty to provide the section 3 listed services to the extent he considers necessary to meet all reasonable requirements. As already explained, that duty does not require the defendant to meet all requirements for heath related services, nor even all reasonable requirements for such services. It is always a matter for the judgment of the defendant Secretary of State whether there exists such a requirement, whether that requirement is a reasonable requirement and what if anything is necessary to do to meet that requirement.[53]The regimes set up under these Regulations (and under the post April 2013 arrangements) were and are, as already explained, not targeted at residents of Northern Ireland as such and nor were, or are, they targeted at abortion services in isolation. There is nothing irrational in the defendant making the judgment that it is not necessary to meet in England in the same circumstances which apply to those who reside in England (or are registered with a GP practice in England), all secondary health care requirements of those who usually reside in a different part of the UK, whether they be reasonable or not looked at in isolation, given the separation of health care powers and duties in the four jurisdictions of the United Kingdom. The section 1 duty to promote a comprehensive health service in England is a duty, inter alia, in relation to the physical and mental health of the people of England and I accept the defendant’s submission that it is not to that extent a duty in relation to persons who are ordinarily resident in Northern Ireland. In these circumstances the defendant in my judgment must, in exercising his judgment under section 3 (or in exercise of his functions under the 2006 Act as amended), be entitled to have regard to the statutory position that the primary responsibility for the physical and mental health of those resident in Northern Ireland lies with the authorities and the health service in Northern Ireland, and that those ordinarily resident in Northern Ireland (or Scotland or Wales) should be expected in general to access the relevant services from the health service of those jurisdictions, consistent with the duties imposed on the relevant authorities to provide a health service for the people of those jurisdictions.[54]Thus there can, in my judgment, be no objection in principle to a residence based system of qualification for, amongst others, abortion services, regardless of the particular sensitivities associated with abortion. The defendant must be entitled to make the judgment that the needs of those resident in Northern Ireland for abortion services, amongst other listed services, are not ‘reasonable requirements’ for the purposes of his section 3 duty which ought to be met, by the NHS in England save in the limited circumstances already provided for.[55]Thus in principle I consider the approach taken by the defendant under section 3, complained of in these proceedings, to be entirely lawful.[56]I turn then to the basis upon which it is said that that approach has become unlawful because of the particular policy adopted by the defendant.[57]The fact that abortion services in Northern Ireland are available on a much more limited basis because of the state of the criminal law in Northern Ireland cannot in my judgment render that judgment of the defendant under section 3 a perverse one. This is but a consequence of the devolution of powers and duties not only in relation to health care which underpins the judgments made by the defendant under section 3 but in relation to criminal law. The complained of failure to provide abortion services in England for persons ordinarily resident in Northern Ireland save in exceptional circumstances may well be a failure to provide services which the responsible authorities in Northern Ireland have decided not to provide and which indeed would be unlawful if they were provided in Northern Ireland but this in itself cannot in my judgment render the residence based system for the provision of such services in England a perverse one. The defendant is still entitled to make the judgment that it is for responsible authorities in Northern Ireland to determine what services should be provided for their residents in accordance with the law established by the responsible authority in Northern Ireland and that decisions taken there in accordance with the law cannot convert what would otherwise not be a reasonable requirement which ought or is necessary to be met in England into something different.[58]The above analysis in my judgment would render lawful the approach adopted by the defendant in this case irrespective of whether he had adopted the express policy complained of. This said however I see nothing unlawful in the defendant adopting the express policy ‘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’. This is no more than paying respect in the context of the devolution of powers, for the approach deliberately adopted by the responsible authorities in Northern Ireland and there can be nothing unlawful in that in my judgment.[59]Nor can it be said in my judgment that the adoption of such policy has unlawfully fettered the discretion of the defendant. Again as Mr Coppel submitted, the defendant was entitled to adopt a policy and to give effect to that policy in the Function Regulations. He was free to change that policy and to introduce amendments to those provisions at any stage. Again Mr Coppel points out in this context that the new legislative framework governing CCGs does modify the position.[60]The above analysis based on the separation of powers between the health services in the four jurisdictions of the UK in my judgment is as applicable to the new statutory regime since April 2013 as it is to that prevailing previously. There is nothing in my judgment unlawful in the defendant declining to make a specific exception to the residence based system of responsibility for health care services for a particular non emergency–medical service namely abortion services.[61]Thus I do not consider that the policy complained of is unlawful on the first basis put forward, that is to say that it leads to an unlawful exercise of the defendant’s statutory functions under the NHS Act.

The Human Rights Challenge

[62]Nor on proper analysis do I consider that the human rights basis of challenge to the policy can succeed. My reasoning is as follows.[63]In summary form the challenge is in effect a submission that the denial of the claimant as an ordinary resident of Northern Ireland to access abortion services provided by the NHS in England, amounts to a breach of the Article 14 prohibition of discrimination. As the claimant was not denied in England access to abortion services compliant with the Abortion Act 1967, albeit in a fee charging private clinic, the challenge amounts to a submission that the denial to her in England as an ordinary resident of Northern Ireland of access to a state funded abortion amounts to a breach of Article 14.[64]To begin to succeed however the claimant has to demonstrate that she has been discriminated against in her enjoyment of an identified Convention right albeit she does not have to demonstrate a violation of that right. She identifies for this purpose her Article 8 right to respect for her private life and relies upon the decision in Tysiac that ‘legislation regulating the interruption of pregnancy touches upon the sphere of private life’. But that decision did not establish that there was any Article 8 convention right to an abortion as such let alone a state funded abortion. All it established was that where the State has chosen by law to regulate abortion, Article 8 imposes a positive obligation on the State to provide an effective and accessible procedure allowing individuals to establish whether or not they are entitled to a lawful abortion and an accessible procedure to allow access to such services if they are so entitled (see in similar vein the decision of the European Court in A, B, C v Ireland (2011) 53 EHRR 13).[65]In these circumstances I can see no basis for the submission that the claimant here has been allowed in England anything other than the full enjoyment of whatever her Convention rights under Article 8 rights amount to, as regards the positive obligations imposed upon the State in relation to the access to abortion services. She can point to no procedural deficiencies. The provisions of the Abortion Act 1967 are clear. The powers of the NHS to provide the claimant with abortion services are spelled out in legislation. She was not deprived of the opportunity to receive such abortion services as she was entitled to, because of any absence of any procedural safeguards. The claimant was entitled to and did access abortion services in England (at the independent clinic approved by the defendant), albeit not state funded. I agree with Mr Coppel, that any Article 8 obligations towards the claimant as regards the provision of abortion services, imposed on the defendant have here been satisfied.[66]The fallacy in the claimant’s Article 14 argument in my judgment is that it proceeds on the basis that she has been discriminated against in her enjoyment of her convention rights because of the denial to her of access to a state funded abortion which is not denied to others in a comparable position. But there is no suggestion in the case–law of the European Court of Human Rights that the State is required to fund abortion services and I received no submission that this was so. I was referred to the judgments of the Court of Appeal in R (Condliff) v North Staffordshire Primary Care Trust [2012] PTSR 460, in particular at paragraphs 41-50, (as well as Wiater v Poland ECHR 917). These authorities go to show only how limited is any positive obligation on the State to provide or fund health care services of any description.[67]Absent any convention right to a state funded abortion and absent any procedural defects in gaining access to whatever abortion services to which she was entitled under the legislative provisions enacted by the State, I do not consider that this article 14 challenge can succeed.[68]If I were wrong in this analysis, and article 8 and article 14 are here engaged, I would still consider that the claimant faces formidable obstacles in her human right challenge for the following reasons, although I find it unnecessary to finally determine these issues:(i) it is dubious in my judgement whether there has here been any discrimination on grounds of status for the purposes of Article 14. The claimant would, absent an emergency, have been denied access to abortion services on the NHS in England because of the specific provisions of the Function Regulations. She was denied access not because of her being ordinarily resident in Northern Ireland but because of her not being either a practice patient in the relevant area or usually resident in England in the particular area. I accept that Carson (paragraph 70) is authority for the proposition that place of residence abroad, that is outside the contracting state, as a basis for a distinction in treatment (in that case in the provision of a state pension) would in the circumstances of that case amount to a distinction based on a personal characteristic or status for the purposes of Art 14. but it by no means follows that a distinction based on place of residence within different areas of the contracting state would similarly qualify. Certainly the decision in Magee v UK (2001) 31 EHRR 35 (see in particular paragraph 50) although not directly in point supports the view that differences in legislative treatment of citizens between different areas of a contracting state does not engage Article 14. I say it is not directly in point since that case is to be explained on the basis of the geographical reach of the legislation concerned and the geographical location of the complainant rather than his place of residence (see again Carson at paragraph 70). Nonetheless my present view is that a system for accessing heath care services within one contracting state, which has devolved health care powers and duties to different areas of the State, which depends upon the place of residence of the individual, does not amount to involving a distinction based upon personal characteristic or status so as to engage Article 14. Although the claimant says she was put in a different position from all other citizens in the United Kingdom, in so far as access to services in England (and this is what this case is all about) was concerned, she was under the Function Regulations in no different position from anyone else who was neither a practice patient nor usually resident in the material area of the particular PCT, be that person a resident of another area of England, or a resident of Scotland or Wales.(ii) Even if this were a case of difference in treatment based on personal characteristic or status, I consider the defendant’s submissions in favour of an established objective reasonable justification compelling, based as it is on the recognition of the existing division of responsibility for health services within the four jurisdictions of the United Kingdom, and the objective justification for the residence based system of qualification for heath care treatment to which I have already referred and given the wide margin of appreciation available to the defendant. I accept that the position might have been different if the health care services provided in the jurisdiction in which the claimant is resident were themselves non compliant with her Convention Rights but as already stated, the claimant does not contend this to be the case. Nor does she challenge on Convention grounds the criminal law on abortion in Northern Ireland.[69]For all these reasons I consider that the human rights challenge to the defendant’s identified policy must fail.

Final conclusion

[70]For all these reasons this claim is dismissed. The parties are invited to submit written submissions on costs and any other ancillary issues, to be dealt with on the handing down of this judgment.

Cited in 1 later judgment