UK Supreme Court rules narrowly against free abortions in England for Northern Ireland women. But in Scotland?

Support for abortion reform in Northern Ireland becomes all the more relevant after the decision of the Supreme Court last Wednesday narrowly to reject the appeal against  Jeremy Hunt the Health Secretary for England,  refusing to exercise his discretion to allow  women from Northern Ireland to have abortions free of charge on the NHS  in England. A triumph of democracy, opponents would say.

From the Guardian report  

The judges were ruling on the case of a woman identified only as A, who was 15 and resident in Northern Ireland when she became pregnant in 2012. Unable to access abortion services in Northern Ireland, she travelled to Manchester with her mother, and used the services of a private clinic, at a total cost of £900 including travel.

This was a large sum for the family to find, and they were only able to afford treatment because of financial support from the charity Abortion Support Network.

Although the Health Secretary (for England)  has accepted that it is within his power to arrange for abortion services to be provided to women from Northern Ireland through the NHS in England, he has refused to exercise that power, the daughter’s lawyer Angela Jackman, of law firm Simpson Millar, said. 

But campaigners were encouraged by divisions between the five judges on the panel. Lord Kerr and Lady Hale, the two most senior members of the court, found that the current policy unjustifiably breaches women’s rights under article 14 (freedom from discrimination) and article 8 (right to private and family life) of the European convention on human rights.

Brenda Hale, deputy President,  is  the sole woman on the  court, while Brian Kerr is a former Lord Chief Justice of Northern Ireland,  (and a Catholic).

Delivering the majority decision Lord Wilson said.)

Parliament’s scheme is that separate authorities in each of the four countries united within the kingdom should provide free health services to those usually resident there. The respondent (Jeremy Hunt the Heath Secretary for England)     was entitled to make a decision in line with this scheme for local decision-making and in accordance with the target reflective of it which was imposed on him by statute. But the respondent has taken his argument a stage further. In response to the letter before action sent on behalf of the appellants, he stated that it was “the policy of the Government … that, in general, the NHS should not fund services for residents of Northern Ireland which the Northern Ireland Assembly has deliberately decided not to legislate to provide, and which would be unlawful if provided in Northern Ireland.”

 This is the consideration which the appellants submit to have been irrelevant. It was, so they argue, the assembly’s decision which created the need and it could hardly also represent a reason for refusing to meet it. I disagree.

The respondent  was entitled to afford respect to the democratic decision of the people of Northern Ireland; was entitled to have in mind the undeniable ability of Northern Irish women lawfully to travel to England and to purchase private abortion services there; and was entitled to decide not further to alter the consequences of the democratic  decision by making such services available to them free of charge under the public scheme in England for which he was responsible…

On any view the dissenting judgments of Lord Kerr and Lady Hale command considerable respect. Lord Kerr concludes that it was the duty of the Secretary of State (and is the duty of the groups) to provide for a UK citizen present but not usually resident in England the same medical services, free of charge, under the NHS as he provided (and as they provide) for those usually resident in England.

 Lady Hale agrees with him but also stresses that a requirement for abortion services represents a special case. It is, however, easy to think of other people suffering a grave medical condition who could mount an equally convincing special case. Lady Hale also suggests that the duty of the NHS in England to provide abortion services extends even to foreign citizens present in England; but its entitlement to charge such citizens, which Lady Hale recognises, might not negate the effect of the suggested extension on the functioning of the service.

Irrespective, however, of its precise extent, the duty proposed to be cast upon the respondent by Lord Kerr and Lady Hale would, in my view, precipitate both a substantial level of health tourism into England from within the UK and from abroad and a near collapse of the edifice of devolved health services. In the end, for the reasons given above, I find myself unable to agree either that sections 1 and 3 of the 2006 Act or that the human rights of UK citizens generate the suggested duty. I would dismiss the appeal.

So what about Scotland? Any developments?

Nicola Sturgeon has told the Scottish parliament that the devolved government would explore the possibility of giving women from Northern Ireland access to abortions in Scotland’s health service free of charge.

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  • Zorin001

    There seems to be a slight shift in the mood music from Foster regarding abortion for FFA, Incest and Rape and which is backed up by the results of the life and times survey so maybe some change in legislation if the assembly gets back up and running?

  • Jag

    Question for anyone – do you know how much the NHS charges a woman from Northern Ireland travelling to England for an abortion? I suppose it depends on the individual circumstances, term etc, but is there a ballpark or range?

  • Martin Warne

    Without a doubt.
    When Stormont reconvenes neither DUP nor Sinn Fein will have a majority veto anymore so MLAs will be able to seriously for the first time push forward on more progressive views.
    There is room now for movement on same gender marriage, there is scope to allow an act on Irish language and the abortion laws must come into line with the rest of the UK .
    This is 2017 after all and not the dark ages.
    These are emotive subjects though and it will take a lot of soul searching from Nationalists as well as us Unionists to shift the balance of agreement and move Northern Ireland forward.

  • Korhomme

    The respondent was entitled to afford respect to the democratic decision of the people of Northern Ireland

    This can only mean ‘respect’ in a legal sense. It certainly isn’t reflective of opinion generally, as the NILT survey shows.

  • Martin Warne

    Emotive subjects like this can bring out the best and sometimes the worst in society as we have seen through many decades all over the United Kingdom.
    But when we entered the new millennium wasn’t a new era of tolerance meant to come with it ?
    Yet there is so much less tolerance of those whose deeply held personal views do not conform to the popular trend.
    Not that I would have agreed with his politics but picture the sad departure of Tim Farron from the Liberal Democrat leadership this week who apparently cannot reconcile his private Christiann faith anymore with public office.
    – if that is true what a tragic endictment of 21st century surrendered attitudes.

    When the Northern Ireland Assembly reconvenes there will be no longer be a veto for either DUP or Sinn Fein which indicates a fairer than ever chance of more progressive views prevailing through the ultimate ‘consensus’ legislature in the UK.

    There is a surely room now for an Irish Language Act and a lot of scope to enable same gender marriages in Northern Ireland.

    Abortion laws will have to change and on all of these DUP, Sinn Fein and the other Parties will have to come together in a spirit of compromise for the best interests of Northern Ireland.

    It is simply not acceptable that anyone from Northern Ireland should be driven to travel to Wales, Scotland or England simply to achieve what is now generally recognized as a basic Human Rights.

    It is 2017 after all and not the dark ages.

  • aquifer

    The political parties here, in their collaboration with paramilitaries, have already taken the power of ruling over life and death from the judiciary. It seems that this personal oppression should now be extended beyond Stranraer.

  • Granni Trixie

    And for those who identify with neither blocs there is likely to be soul searching too.

    I am one of those who finds their conscience troubled both by the idea of the impact of abortion on society’s value for life AND by the impact of laws on women who make the journey to have abortions across the water.

    Even as I struggle to reconcile views on this complex moral issue, it is clear to me that we need clarity on the law that exists as well as some changes to accommodate the reality.

  • Granni Trixie

    Many regard FFA as a health decision, distinguishing it from abortion in general: similarly rape and incest to some are ‘different’ morally because they are a consequence of crimes. Such views are different from ‘a womens right to chose’ rationale’.

  • Granni Trixie

    Whatever the financial cost it is obvious that the present “system” impacts unfairly on those on low incomes.

  • woodkerne

    ‘British rights for British citizens’ … A certain irony in that civil rights era exhortation, don’t you think?

  • Roger

    Whatever one’s views, the ability to terminate the life of a fetus isn’t “generally recognised as a basic human right”….

  • aquifer

    With less social support to keep them out of trouble, less wanted children can become a burden on more than their mother. Denying both choice to women and resources to children is a cruel way to flaunt the power of men.

  • doopa

    Related question: if one had a different operation in England would it be refused? Or does this ruling specifically refer to abortion procedures?

  • Slater

    Time for a new Abortion Act in both GB and NI to address the fact of safe medical terminations up to ten weeks. These should be legalised throughout the UK by means of properly prescribed drugs administered with due supervision.

  • Granni Trixie

    My understanding is that there is a residential requirement in the British Isles in order to get any medical attention. If so, then same rules are being applied as in cases of abortion. But I could be wrong,

  • BERZERKERMG

    If anybody opposes abortion because they think it is murder, they should stop and imprison women who travel to mainland Britain for abortion. That is the only logical conclusion to their belief. If it was known I was going to travel to another country to murder someone I would be stopped and imprisoned. It is bizarre that this is a situation that unites both north and south, although I know people from the south who have gotten married in the North to avail of the potential for abortion if there were difficulties in the pregnancy. Hopefully within the next year the South will legislate for this and the ridiculous situation where people agree with abortion by allowing people travel but not if it’s in their back yard stops. This is backwards nonsense. There are no extenuating circumstances with abortion – you’re either murdering someone or you’re not. If you believe it’s murder, you cannot allow people travel. Fatal foetal abormalies, rapes, etc. are all distractions – if you agree with abortion for them you agree with abortion full stop. That is a fact. It is genuinely a black and white issue.

  • Martin Warne

    You are absolutely right, which is why I advocate a free vote vote on such issues with no party whips. This kind of thing transcends party politics.

  • Martin Warne

    That specifically is correct and I respect your point. But access to choice in the 21st century United Kingdom is a basic human right.

    Whether an issue is right or wrong is for each and every one of us to decide for ourselves, which is why I advocate a free vote in the Assembly with no party whips.

    There are certain issues like this which transcend party politics.

  • Roger

    Again, that’s not correct. The law of the United Kingdom prohibits the termination of a fetus in Northern Ireland. That’s not incompatible with the UK’s own Human Rights legislation or any other Human Rights laws. Baldly asserting otherwise doesn’t change that.

  • Martin Warne

    It is not my intention to baldly assert anything or to bandy semantics around.

    Perhaps my use of the phrase ‘Human Rights’ is misleading but women in Northern Ireland may travel to the any other part of the United Kingdom to access a ‘Right’ under UK law which is currently denied them in Northern Ireland.

    The moral rights and wrongs of this are personal to each and every individual conscience but non more so that than young women in Northern Ireland whose lives have and may still become nightmares because they are forced to live under a different law than the rest of the UK.

    The law on abortion IS different in Northern Ireland to the rest of the United Kingdom and that IS a matter for our Northern Ireland Assembly to address– and we WILL have to address it sooner rather than later in Stormont and nowhere else.

  • Roger

    Whatever your intentions, baldly asserting that a right to terminate a fetus exists as a basic human right is what you did. Twice. No arguments were made. Just bald assertions. That’s not semantics.

    Glad we are moving on.

  • Martin Warne

    If we are moving on, Roger, then no one is more glad than me. I would always rather build bridges than destroy them.

    But I cannot make an argument for or against a law which will come before our NI Assembly again and again until it is brought into line with the rest of the UK.

    (at this point in time we are not even close the law in ROI)

    Emotive issues like this will often cause many people try to gain some elusive moral high ground and there is none to be had.

    Such a personal matter must come outside the control of party whips, whether Nationalist or Unionist, so that MLAs may be better placed to do what is best for young people in Northern Ireland.

  • Roger

    I’m for building bridges too; couldn’t understand your second para re being unable to make arguments; don’t agree there is no moral high ground; don’t know what you mean by what’s “best” for “young” people…given context, the words seem open to rather chilling interpretations.

    But anyway, I’m not going to argue about fetus termination and its moral rights or wrongs. The arguments are pretty well known. Not my thing. I confine myself to the narrower legal point we’ve since agreed on.

  • Martin Warne

    I think we’ve built a bridge , Roger, but to close on two points of clarification:
    1) I will not and cannot attain to any moral high ground on such issues.
    2) When I refer to ‘young people’ in Northern Ireland, I mean those who deserve the same opportunities as their counterparts living in the rest of the UK.
    Kind regards and many thanks for a courteous exchange of views.

  • doopa

    Trying to draw out the distinction – when you say there is a residential requirement in the British Isles – do you only have to live in the British Isles (i.e. including the RoI) or do you mean UK?

    When I’ve been living the rUK I’ve never had any issues accessing medical professionals on trips to NI. I doubt there is any charge back happening on people accessing care in other parts of the country. I was under the impression that much like the agreement with the rest of the EU they don’t try to accurately enumerate all instances of charging but rather estimate them and allocate funds accordingly.

  • Granni Trixie

    I meant “across the water” by which I do not mean ROI. You’re probably right that in practice medical professionals work their way around the rules.