It was entirely logical for the Secretary of State for Health in the exercise of his duty under section 3 of the National Health Service Act 2006 to provide a range of NHS services including abortion services throughout the United Kingdom on the basis of local residence. The Secretary of State was not obliged to exercise his discretion so as to extend free abortion services to women from Northern Ireland and failure to supply such a service was not a breach of rights under the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court of Appeal so stated when dismissing the appeal of the claimants, A, a child by her mother and litigation friend B, and B, against a decision of King J on 8 May 2014 [2014] EWHC 1364 (Admin) to refuse their claim for judicial review of the Secretary of State’s failure in his exercise of power under section 3 of the National Health Service Act 2006 to provide abortion services for women and girls from Northern Ireland, such failure also being a breach of rights under article 14 read with article 8 of the Convention.

ELIAS LJ said that it was conceded by the Secretary of State that he had, 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 were made available to women in England. The contention was that the Secretary of State had acted unlawfully in failing to exercise that power; that such failure was an irrational exercise of the duty conferred on the Secretary of State by section 3 of the National Health Service Act 2006 and that it was a breach of her Convention rights involving an infringement of article 14 when read with article 8. Under section 3 the duty was to “take such steps as he considers necessary to meet all reasonable requirements”. The Secretary of State had a wide discretion both as to the assessment of needs and how best to provide for them. The “reasonable requirements” decision was to provide services for UK citizens on the basis of residence.

His Lordship did not accept the contention that women from Northern Ireland constituted a special case both because abortion was (save exceptionally) illegal where they lived, and because they were denied the right to free abortion as citizens of the UK, notwithstanding that other women throughout the UK could obtain those services; that 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 and that he should have provided the service which the Northern Ireland Government was not prepared to provide, and indeed could not legally provide. There was nothing irrational in the approach of the Secretary of State. It was entirely logical to provide a range of NHS services throughout the UK on the basis of local residence requirements.

As to the Convention challenge, the claimants based their argument on Thlimmenos v Greece (2001) 31 EHRR 411 where the European Court of Human Rights had held that article 14 could exceptionally be applied so as to give effect to the principle that different cases should be treated differently. The argument was that even though it was 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 forbade abortion; and second, because they were citizens of the United Kingdom. The Secretary of State, it was asserted, ought to have recognised their special and distinct status and given them the same rights as women in England. The argument therefore essentially mirrored the public law submission but placed in the context of Convention rights.

His Lordship very much doubted whether that way of putting the case even engaged the Thlimmenos principle. In Thlimmenos the claimant had argued that it was unfair not to differentiate him from others caught by a general rule. Here the general rule was that, exceptional cases apart, only those resident in England could have an abortion free on the NHS. The claimant was not someone caught by that rule who was seeking to be an exception to it; on the contrary, she was complaining that she had not been brought within it when she should have been. She was seeking to be differentiated from those who failed to comply with the rule rather than those to whom it was applied. Even if Thlimmenos could in principle be engaged in a case like the present, the question arose whether the conditions of its application were met.

The judge had rejected the Convention argument on the grounds that failure to provide state funded abortion did not fall within the ambit of article 8. His Lordship considered that the denial of the right to a free abortion, thereby putting stress and pressure on women and sometimes their relatives who could not afford to pay for an abortion, was treatment which engaged article 8.1 even if readily justifiable under article 8.2. Moreover, once a state had agreed to fund abortions for some women, as the Secretary of State in England had done, his Lordship had no doubt that it was conferring a right falling within the ambit of article 8 since it bore directly on personal autonomy. This was particularly so given that for some women, as for the claimants, a child and her mother, additional stress might 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 might therefore engage the discrimination principle in article 14.

Was there discrimination on a prescribed ground? In his Lordship’s judgment the particular criminal status of the law on abortion would not fall within the concept of “other status”. Pregnancy itself would be, but his Lordship did not see how the state of the law regulating the termination of pregnancy could be said to constitute a personal characteristic. There was no discrimination on any of the prescribed grounds. The critical factor which it was alleged demanded the different treatment of women in Northern Ireland was the state of the law which was not caught by article 14. That did raise a point of some interest, however. It assumed that when applying the Thlimmenos principle, the factor or factors which were relied upon in order to establish that the claimant was in a significantly different situation must be one of the article 14 prescribed grounds. Logically there was no reason why that should necessarily be so. However, given that the basic concept of direct discrimination itself was so linked, it was in his Lordship’s judgment likely that the Strasbourg court would subject the Thlimmenos principle to the same limitation.

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 had been made out of Thlimmenos discrimination, his Lordship had no doubt that the Secretary of State was entirely justified not to make an exception for women from Northern Ireland.

McCOMBE and MOORE-BICK LJJ agreed.