The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?’
Held: (Hale and Kerr LL dissenting) The appeal failed. Though the Justices expressed a personal sympathy, the scheme created separate health systems for the four countries of the UK. The court had to respect choices made by the democratically elected authorities in Northern Ireland not to fund abortion services.
The human rights challenge fails as the difference in treatment was justified. The respondent’s decision as to whether to provide free abortion services fell within the scope of article 8. The respondent treated women usually resident in England differently from women who, although UK citizens, were usually resident in Northern Ireland. A difference of treatment between UK citizens present in England on the grounds of usual residence falls within the scope of ‘other status’ for the purposes of article 14. The respondent’s loyalty to the devolved scheme for health services in Northern Ireland on abortion services was rationally connected to his decision not to make the direction sought by the appellants. He could not have reached any decision less intrusive upon the article 8 rights of the appellants. The respondent’s decision struck a fair balance between the appellants’ rights and the interests of the UK community as a whole and, accordingly, was justified. The difference in treatment did not amount to discrimination
Lord Kerr (with Lady Hale), dissenting, said that though the aim in section 1 of the 2006 Act relating to the improvement of physical and mental health is limited to the people of England, the aim in section 1(1)(b) relating to the prevention, diagnosis and treatment of illness is not limited in the same way. Women in Northern Ireland seeking an abortion in England are being treated ‘for the prevention . . of illness’ under section 1(1)(b) as allowing an unwanted pregnancy to continue to term carries a risk of physical or mental injury. In failing to exercise his power, the respondent was wrong to believe that his section 3 duties were confined to the people of England.
Judges:
Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
Citations:
[2017] UKSC 41, 156 BMLR 1, [2017] 1 WLR 2492, [2017] HRLR 9, [2017] 4 All ER 353, (2017) 156 BMLR 1, [2017] Med LR 347, UKSC 2015/0220
Links:
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video
Statutes:
National Health Service Act 2006, National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 3(7), Health and Social Care Act 2012
Jurisdiction:
England and Wales
Citing:
Cited – YA, Regina (On the Application of) v Secretary Of State for Health CA 30-Mar-2009
The applicant was a failed asylum seeker who sought judicial review of a decision of an NHS Trust not to provide him with free care. The court was asked for guidance as to whether a health trust had a discretion to provide free health care to a . .
Cited – The Northern Ireland Human Rights Commission, Re Judicial Review QBNI 30-Nov-2015
The Court concludes that in Northern Ireland:
(i) There is no general right to abortion whether under the common law or under statute.
(ii) The Northern Ireland Human Rights Commission (‘the Commission’) has legal standing under the . .
Appeal from – A (A Child) and Another, Regina (on The Application of) v Secretary of State for Health CA 22-Jul-2015
The court considered an appeal from a refusal of judicial review of a decision not to provide free abortion services in England to women from Northern Ireland.
Held: The appeal failed. . .
At First Instance – A and Another, Regina (on The Application of) v Secretary of State for Health Admn 8-May-2014
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 . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Magee v The United Kingdom ECHR 6-Jun-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1+6-3-c; No violation of Art. 14+6; Pecuniary damage – finding of violation sufficient; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
Cited – BS v Spain ECHR 24-Jul-2012
A woman who was black and a prostitute established a ground of discrimination contrary to article 14 by reference to the interaction of all three factors . .
Cited – RR v Poland ECHR 26-May-2011
The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – Carson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
Cited – Dudgeon v The United Kingdom ECHR 22-Oct-1981
ECHR (Plenary Court) Legislation in Northern Ireland that criminalised homosexual behaviour which was lawful in the rest of the UK.
Held: There was a violation of article 8, but it was not necessary to . .
Cited – Nelson v United Kingdom ECHR 1986
A complaint of discrimination was made based on differences between the laws governing remission and parole in Scotland and England.
Held: The complaint was dismissed. The differences were ‘not related in any way to the personal status of the . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – P v United Kingdom ECHR 11-Jul-1988
The Commission stated: ‘in many, if not all, of the contracting states, different legal jurisdictions exist in different geographical areas within the state (eg cantons, communes, Lander, etc) . . the mere existence of variations between such . .
Cited – Alatulkkila and Others v Finland ECHR 28-Jul-2005
ECHR Judgment (Merits) – No violation of Art. 6-1; No violation of P1-1; No violation of Art. 14+P1-1. . .
Cited – Posti and Rahko v Finland ECHR 24-Sep-2002
Hudoc Two fishermen who operated under leases granted by the Finnish state complained that restrictions imposed by the government to safeguard fish stocks had failed to strike a fair balance under A1P1. The court . .
Cited – Magee v United Kingdom ECHR 6-Jun-2000
The denial of access to a solicitor for a suspect before interrogation was a breach of the right to a fair hearing. The breach was so fundamental as to irretrievably prejudice the rights of a defendant. The article might be expressed to refer to . .
Cited – Times Newspapers Ltd v United Kingdom ECHR 5-Mar-1990
The Commission noted that there was no indication that the difference there in question was based on any ground such as ‘association with a national minority’. All that was being said was that differences between the laws in different jurisdictions . .
Cited – Condliff, Regina (on The Application of) v North Staffordshire Primary Care Trust CA 27-Jul-2011
the claimant, a morbidly obese man, made a funding request to the trust for gastric surgery. This was refused because he did not meet the trust’s policy of offering funding to people who had a body mass index which exceeded a certain level. The . .
Cited – Gudmundsson v Iceland ECHR 1996
A revocation of a licence is not a deprivation of property, but rather a control of its use within the second paragraph of article 1 under a proportionate and Convention compliant scheme . .
Cited – Justice for Health Ltd, Regina (on The Application of) v The Secretary of State for Health Admn 28-Sep-2016
The claimant junior doctors’ association challenged the imposition on them of new contracts of employment, on the basis that the 2006 Act gave him no power so to act, that the manner of imposition was opaque and confused, and was irrational and not . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – MS, R (on the application of) v Collins and Another CA 30-Jul-1998
Judge LJ, giving the judgment of the court, said this: ‘In our judgment while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human, . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Horvath v Secretary of State for Environment, Food and Rural Affairs ECJ 3-Feb-2009
ECJ (Opinion) Reference for a preliminary ruling from the High Court of Justice of England and Wales (United Kingdom).
‘where the constitutional system of a member state provides that devolved . .
Cited – Regina (Quintavalle, Prolife Alliance) v British Broadcasting Corporation CA 14-Mar-2002
The applicant had stood for election, and since there were a sufficient number of candidates for the ProLife Alliance, they sought a party political broadcast. The material they produced was rejected by the respondent and others, as not complying . .
Cited – Regina v London Borough of Barnet ex parte G; Regina v London Borough of Lambeth ex parte W; Regina v London Borough of Lambeth ex parte A HL 23-Oct-2003
The applicants sought to oblige the local authority, in compliance with its duties under the 1989 Act, to provide a home for children, and where necessary an accompanying adult.
Held: There were four hurdles for the applicants to cross. They . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Crime
Updated: 16 August 2022; Ref: scu.587786