Each year, at least 1000 young women, but perhaps as many as twice that number, travel from Northern Ireland to another part of the United Kingdom in search of an abortion. They do so to avoid the criminal liability that (in most cases) still attaches to terminations of pregnancy in Northern Ireland, and to rely instead on the more liberal legal regime prevailing in England, Scotland and Wales.
Should they be entitled to obtain abortions free on the National Health Service?
The answer to this question, which was considered by the Court of Appeal in A (a child) v Secretary of State for Health, reveals the full extent to which, under the UK’s devolution settlement, the disaggregation of the NHS into four discrete health services – one for each of the four constituent territories* of the United Kingdom – is now legally entrenched. By implication, it also asks important questions about the effect of future devolution within England.
The Case
‘A’ was a 15 year old girl who travelled with her mother from Northern Ireland to Manchester for an abortion. The procedure was carried out at a private clinic at a cost of £600. She claimed that it should have been freely available on the NHS.
The Statutory Background
The legal starting point is two duties under the National Health Service Act 2006 (the NHS Act). At the time when ‘A’ was seeking an abortion, these rested on the Secretary of State for Health, who discharged them via Primary Care Trusts. The duties required him –
Section 1: to ‘continue the promotion in England of a comprehensive health service designed to secure improvement…in the physical and mental health of the people of England…‘
Section 3: to ‘provide throughout England, to such extent as he considers necessary to meet all reasonable requirements…such other services or facilities for the care of pregnant women…as he considers are appropriate as part of the health service…‘.
Following amendments made by the Health and Social Care Act 2012, the section 3 duty now lies on Clinical Commissioning Groups (CCGs). The Court of Appeal considered both the past and present law, and the parties accepted that, whichever of these was applied, the outcome of the case should be the same [7].
The Arguments
Clearly both statutory duties, in particular the section 3 obligation, use the language of discretion. The Secretary of State did not deny that he could have required abortions to be provided in England to women from Northern Ireland. He simply said that he chose not to. The general policy on the provision of NHS services in England is that residents of other parts of the UK, who are merely present in England for a time, cannot access them other than in limited circumstances (e.g. emergency care). There was no reason to make an exception in this case –
‘…the policy of the Government [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 legislative to provide, and which would be unlawful if provided in Northern Ireland…‘ [23]
In other words, put bluntly, the government’s position is that taxpayers in England should not fund NHS medical provision for residents of the rest of the UK. This is the case, in particular, in relation to services which the elected representatives for those parts of the UK have decided should not be provided in their own territory.
It was argued on the other side that this ignored the need arising in England due to the persistent flow of women from Northern Ireland, year-on-year, seeking abortions. The law in Northern Ireland was the cause of the need, not a justification for refusing to provide for it. The Secretary of State’s policy was therefore both irrational in public law terms, and discriminatory (as between women from Northern Ireland and those from England) in breach of Article 14 of the European Convention on Human Rights.
The Judgment
The judgment of the Court of Appeal was given by Elias LJ, and can be summarised in the following way.
First, the Secretary of State had a wide discretion to decide whether the presence in England of women from Northern Ireland seeking an abortion was a ‘reasonable requirement’ which it was ‘necessary’ for him to meet – a position established, since R v North and East Devon Health Authority ex p Coughlan [2000] 3 All ER 850, in relation to the predecessor legislation [11] and still applicable.
Second, to demonstrate that the Secretary of State had acted unlawfully in refusing to meet this ‘need’, the claimant would have to show that his decision was unreasonable on the ‘stringent irrationality’ standard of Wednesbury [22].
Third, in practice the claimant did not come close to meeting this standard. The argument was that it was irrational to deny ‘the right to free abortion’ to women from Northern Ireland because they were ‘citizens of the UK’, and other women throughout the UK could obtain abortions on the NHS [28]. However –
‘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 requirements…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 and range of those services, for the most part at least, to those for whom the authority has primary responsibility.‘ [29]
Fourth, as to the discrimination argument under the Convention, the claimant needed to show three things. The Article 14 prohibition on discrimination is not a freestanding right in itself, so she had to bring the case within the ambit of another right [31]. She then needed to demonstrate that there was discrimination on the basis of a one of the prescribed grounds [32]. Finally, she had to show that any discrimination was not objectively justifiable [38].
Fifth, there was no difficulty in establishing that the case fell within the ambit of another right, in this case Article 8 of the Convention (the right to private and family life). It was not necessary to show that this other right was breached (and indeed it was not, since the European Court has established, in A, B and C v Republic of Ireland [2010] ECHR 2032, that it is compatible with Article 8 to make abortion illegal [41]). However, the term ‘ambit’ is very broad, and the denial of funding for an abortion is still within the ambit of the Article because ‘it bears directly on personal autonomy [46].
Sixth, however, there was in fact no discrimination on a prescribed ground. Being a UK citizen is a personal characteristic for the purposes of Article 14 [47]. The state of the law in Northern Ireland is not [50].
Finally, in any event, even if there was discrimination it was objectively justified, for the same reasons why it was not irrational in public law to refuse to fund an abortion on the NHS in England –
‘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.‘ [51]
Importance
The importance of the case does not lie in its approach to the contentious subject of abortion, but in its treatment of the NHS devolution settlement generally. Whatever else may be said about the Secretary of State’s exercise of discretion in relation to ‘A’, it was firmly grounded in the logic of devolution. The Court of Appeal had to decide whether that logic should be displaced, in the circumstances of the case, either by conventional public law or human rights arguments. Neither argument appears to have made any impact when set against the principles underlying the devolution framework. It is clear that the Court of Appeal did not even come close to finding in favour of the claimant.
That devolution settlement is therefore resilient in the face of arguments that it should be relaxed on other legal grounds. If there was no reason to relax it in the circumstances of this case, where the Court was plainly sympathetic to the claimant personally [46], it is difficult to imagine in what factual situation any similar arguments would be likely to succeed.
The practical consequences of devolution in the NHS are therefore well-entrenched in UK law and policy.
The English Question
As with many aspects of devolution in the UK, this raises a number of unresolved questions about what happens in relation to, or within, England.
The Current Position
Following the Health and Social Care Act 2012, the Secretary of State retained the duty to promote a ‘comprehensive health service’ in England (section 1 of the NHS Act). But his former duty to provide services and facilities for that purpose ‘throughout England’ has now been converted into an obligation on each local CCG to provide those services and facilities only to those persons ‘for whom it has responsibility’ (section 3(1) of that Act).
With limited exceptions (e.g. emergency care), a CCG has responsibility only for those who are practice patients of GPs, or otherwise ordinarily resident, within its area (section 3(1A)). Therefore, on the face of it, these statutory changes suggest a move towards a considerably less ‘national’ NHS even within England.
For a number of reasons, the effects of this have so far been limited. In the first place, the Secretary of State previously met his section 3 duty by delegating it to Primary Care Trusts set up on a sub-regional basis, so the provision of health services never was entirely uniform across England. Second, conversely, there both was and is a wide range of measures that tend to promote consistency of approach across the country. Under the current law, these include, among other things –
a. Common statutory requirements on CCGs as to process or outcomes – see, for instance, the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the Responsibilities Regulations).
b. The use of NHS England to commission some services across all CCG areas – section 3B of the NHS Act and Part 3 of the Responsibilities Regulations.
c. Common national guidance which is treated as quasi-binding even when it falls short of a legal obligation or has no statutory basis – see for instance R (Rose) v Thanet CCG [2014] EWHC 1182 (Admin) in relation to NICE guidance which fell short of a binding recommendation, and the (factually-troubling) case of R (Whapples) v Birmingham Crosscity CCG [2015] EWCA Civ 435 in relation to Department of Health non-statutory guidance.
d. The Secretary of State’s power to add to the list of persons for whom CCGs have responsibility (section 3(1B) of the NHS Act).
However, the ultimate constraint on services becoming too far misaligned in different parts of England is that there is nothing to stop any person from one area temporarily registering as a practice patient in another and receiving services there. In principle, a person who was unable to receive a particular service in one part of the country could simply move elsewhere to obtain it.
In the case of individuals coming from Scotland, Wales or Northern Ireland, temporary registration with a GP in England does not trigger the responsibility of the local CCG, which is why, as the Court of Appeal found, the situation of ‘A’ would have been no better under the new law than the old [19].
However, this is only because of the effect of regulations specifically excluding CCG responsibility in these cases – the National Health Service (Clinical Commissioning Groups – Disapplication of Responsibility) Regulations 2013 (the Disapplication Regulations). And these do not apply to patients moving for treatment from one part of England to another.
For all of these reasons, the NHS within England still remains, for the most part, a genuinely national health service. However, it is possible that this may not be the case for much longer.
Manchester and Beyond
In November 2014, Greater Manchester entered into a ‘devolution deal’ with the government – the Greater Manchester Agreement. Put simply, in return for agreeing to various governance reforms, including the introduction of a directly-elected mayor, the combined authority of ten councils in the Greater Manchester area, together with the new mayor, would receive a series of new powers devolved by central government.
This was important as a straw in the wind, but otherwise unexciting. The powers being devolved were not ones to set the pulse racing. However, things got more interesting in February 2015, when the ten councils, together with the twelve CCGs in Greater Manchester and NHS England, entered into a Memorandum of Understanding under which they agreed to establish new arrangements to bring together and manage the total £6bn budget for health and social care funding for the combined authority area. The devolution aspect of this arrangement involved bringing resources from NHS England, perhaps as large a component of the total as £1.5bn, under the aegis of a new Greater Manchester Strategic Health and Social Care Partnership.
The government’s initial words of support for these developments were later formalised in a Further Devolution supplement to the original devolution deal.
The full implementation of all of these arrangements requires legislative underpinning, to be provided by the Cities and Local Government Devolution Bill which is currently before the House of Commons. The Bill provides for a legal structure under which, through a series of order-making powers, the government can transfer functions to combined authorities to give effect to devolution deals it has entered into with them.
What exactly does this mean for the future? The answer is that no-one knows exactly. But the potential implications of the broad powers included in the Bill are signalled by an amendment that the House of Lords felt it necessary to make to clause 8, adding the following restriction –
‘An order under this section may not provide for a regulatory function that is exercisable by a public authority in relation to the whole of England to be exercisable by a combined authority in relation to its area if the regulated function is itself exercisable by the combined authority by virtue of an order under this section.‘
This was explicitly aimed at avoiding the fragmentation of health regulation in England by the devolution of currently national regulatory responsibilities, such as those of Monitor and NICE, to areas in control of their own health budgets such as Greater Manchester. The government may, or may not, ensure the removal of the amendment in the Commons. It seems unlikely that devolving regulation forms any part of its current policy. But the mere fact that the amendment was thought necessary at all speaks to just how broad the powers under the Bill are, and how far-reaching its changes could be.
History argues for a serious measure of scepticism when Whitehall promises devolved powers to the regions of England. Nonetheless, assuming for the moment that the Bill is capable of delivering meaningful devolution of NHS budgets to Greater Manchester and all of the other (actual or potential) combined authorities that have recently sought equivalent devolution deals from the government, can a genuinely national NHS in England still emerge from the other side of it?
In truth it seems unlikely. If Greater Manchester controls its own £6bn health and social care budget, would it really want to make available services for temporary residents from (say) Birmingham, any more than it would if those individuals had come from Belfast, Edinburgh or Cardiff, where the equivalent combined authority there had chosen not to use its resources to fund similar services? Why should taxpayers in one area use the resources allocated to them to fund services to someone from another area? The answer must surely be that the logic of devolution applies as implacably within England as between England and the other territories of the UK.
It is therefore difficult to imagine a world of devolved healthcare funding in which the government did not, sooner or later, need to change the Disapplication Regulations to put residents from different areas of England on the same footing as residents from different parts of the UK.
The lesson from the case of A is that, on the current state of the law, these sub-national boundaries would be resilient in the face of legal challenge. And that really would be the beginnings of a genuinely non-national English NHS.
Update
In a decision given on 23 December 2015 the UK Supreme Court has now granted ‘A’ permission to appeal the judgment of the Court of Appeal.
Endnote
*Northern Ireland is not a ‘nation’ exactly, so it is difficult to find a single term that fits all four component parts of the UK. Lord Neuberger in the Rotherham case suggests ‘territory’ [54]. It is hard to improve on that.
Public Law & Regulation 