Northern Ireland: Judicial Review of Abortion Policy
It was reported on 14th June 2017 that the highest court within the UK, the Supreme Court, narrowly rejected an appeal from Northern Ireland regarding free abortions. This particular case was rejected in both the High Court and the Court of Appeal prior to being heard in the Supreme Court.The full judgment can be found here.
The appeal concerned a mother and daughter, who were appealing for women from Northern Ireland to receive free abortions on the NHS in England. Currently, there is ban on abortions for women from that particular region of the UK as the Secretary of State for Health, Jeremy Hunt, has a policy to refuse this. The policy itself does not allow the funding of medical services in England that would be unlawful if received in Northern Ireland.
The facts of the appeal can be summed up as follows. This concerned a 15 year old girl, who was resident in Northern Ireland when she became pregnant in 2012. The girl, who I shall refer to as “X” in this instance, was unable to access abortion services in Northern Ireland owing to the unlawfulness of the treatment as alluded to earlier. Due to this, she travelled to Manchester with her mother, and was required to use the services of a private clinic. The total cost of the treatment and X’s travel in this instance was circa £900. Due to these costs, X required financial support in order to obtain the treatment. It was duly provided by the Abortion Support Network (ASN), a charity that helps people (gender is not considered by ASN) from Ireland, Northern Ireland and the Isle of Man travel to England to access a safe and legal abortion.
X and her mother sought Judicial Review proceedings on the basis that this decision was unlawful. Part of the argument put forward by the appellants was that the powers afforded to the Health Secretary under section 3 of the National Health Service Act 2006 should apply to women who are normally resident in Northern Ireland and are seeking an abortion via the NHS in England. The provision essentially entrusts the Health Secretary with a duty to provide certain services within England. It was accepted by the Secretary of State for Health that he had a right to exercise a power to arrange abortions for women from Northern Ireland, but in the instant case, refused to do so. Generally, abortions in Northern Ireland’s hospitals are only available to women and girls where their life or health is in grave danger; only 23 were carried out in 2013-14.
Whilst the Supreme Court rejected the appeal, it should be noted that the two most senior members of the court hearing the appeal, namely Lord Kerr and Lady Hale, found that the Health Secretary’s current policy does unjustifiably breach women’s convention rights and provided powerful dissents. It should be noted that all five Supreme Court judges ruled that the current set of circumstances do in fact discriminate against women resident in Northern Ireland. The disagreement was over whether or not that discrimination was indeed, justified. In particular, the right of freedom from discrimination, afforded to citizens under Article 14, and the right to private and family life, afforded to citizens under Article 8, of the European Convention on Human Rights (ECHR) were the centrepieces of Lord Kerr's and Lady Hale's considerations.
The court were in the unenviable position whereby they had to wrestle between the very strong competing views on abortion (pro-life v pro-choice). Naturally, this decision has been subject to criticism. It is clear that opinions in Northern Ireland are now changing, although this is a hotly contested area on a political scale.In fact, one of the most accurate barometers of social option in the region (the public attitudes survey), found that 73% of those polled think abortion should be legal in the event that, should a pregnancy go full term, the baby will be born dead or die shortly after birth. However, this can be contrasted with a number of the political parties in Northern Ireland, who are predominantly against the legalisation of abortions in the region.
Whilst X has suffered defeat at a domestic level, it would appear that the split in the Supreme Court has given her hope. It is likely that X and her mother will take the case to the European Court of Human Rights in Strasbourg on the basis that there is a significant chance that the court may find in their favour, having been confirmed by their legal team. Of course, whether the Strasbourg court finds to the contrary of the Supreme Court is a matter that will be decided in the future. It should be noted though, that even if Strasbourg disagree with the Supreme Court, this decision is of course, persuasive at best and non-binding as seen in Section 2 of the Human Rights Act 1998.
