* United Kingdom, United Kingdom Supreme Court , 14 June 2017 UKSC 2015/0220

Identification of the case

• Abortion Act 1967 (“the 1967 Act”)
• National National Health Service Act 2006 (“the 2006 Act”)

Summary of the case

A, a resident of Northern Ireland, became pregnant at the age of 15 and with the support of her mother, B, decided to seek the termination of her pregnancy. She went to a private clinic in Manchester and underwent an abortion. The respondent was the Secretary of States for Health. The appellants argued that the respondent’s failure to provide for A, as a UK citizen usually resident in Northern Ireland, to be entitled to undergo an abortion free of charge under the NHS in England was unlawful and that in failing to make such a direction the respondent acted irrationally and unlawfully took into account the Northern Ireland Assembly’s decision not to provide abortion services. Furthermore, the appellants argued that the respondent had violated Article 14 on the prohibition of discrimination and Article 8 on the right to respect for private life of the European Convention on Human Rights (ECHR) with the argument that their right to respect for private and family life was not secured without discrimination on the ground of usual residence.

• Civil judicial enforcement

The Supreme Court dismissed the appeal by a majority of 3 to 2 on two grounds. First, the human rights challenges that had been claimed to be violated were not successful as the difference in treatment was justified under Article 14 of the ECHR as a difference of treatment between UK citizens in England on the grounds of usual residence falls within the scope of “other status” for the purposes of this provision. Second, the respondent’s decision as to whether to provide abortion services to certain groups of women without charge falls under the scope and exceptions under Article 8 of the ECHR. The Court passed that the respondent’s decision had struck a fair balance between the appellants’ rights and the interests of the UK community as a whole and, hence, was justified. With that reasoning the court concluded that there was no discrimination.

Role of the Charter and role of the general principles on enforcement

The judgment is focused on the ECHR provisions on discrimination (Article 14) and right to respect for private and family life (Article 8).

- Abortion Act 1967 (“the 1967 Act”),

Section 1– four circumstances where termination of pregnancy is lawful

Section 7(3) – extension of the Act to England, Wales and Scotland

- National Health Service Act 2006 (“the 2006 Act”)

Section 1 – Promotion of a comprehensive health service in England

Section 3 – Provision of health services

Section 7 (1) – beneficiaries of abortion (in terms of location)

The ECHR provisions, particularly Articles 8 and 14 were relevant in the case as the rights under these provisions were contested by the appellant as a failure to protect on part of the respondent.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• C-428/07

• A, B and C v Ireland (2011) 53 EHRR 13
• Magee v UK (2000) 31 EHRR 35
• Carson v United Kingdom 51 EHRR 13
• Posti v Finland (2003) 37 EHRR 6
• Alatulkkila v Finland (2005) 43 EHRR 34
• Dudgeon v United Kingdom (1981) 4 EHRR 149

Conform interpretation with EU law as interpreted by the CJEU and with the ECtHR.

The Court referred to CJEU judgment in R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs where “the constitutional system of a Member State provides that devolved administrations are to have legislative competence, the mere adoption by those administrations of different standards would not constitute discrimination contrary to Community law”.

The Court referred to ECtHR cases in several instances to clarify and elaborate the rights enshrined in the ECHR such as, inter alia, in:

- Considering differential treatment arising from differences between the law of Northern Island on the one hand, and England and Wales on the other hand. (Magee v United Kingdom).

- In discussing the scope of women’s right under Article 8 (respect of private life) (A, B and C v Ireland).

- In discussing whether a person’s place of residence though not one of the grounds of discrimination specified in article 14, whether it would fall under “other status” (Carson v United Kingdom)

The judgments of the CJEU and the ECtHR helped the Court elaborate the rights in the ECHR.

Additional notes on the decision

It has been commented in blogs that the judgment was interesting in its analysis of the weight to be given to international law when interpreting ECHR and that although such a conclusion was not been agreed on by a minority, for those seeking to rely on International Conventions and “soft law” interpretative materials, there is a high threshold to meet before it will form part of the domestic courts’ analysis of its obligations under the Convention.