In R (A & B) v Secretary of State for Health  UKSC 41 the Supreme Court considered whether the Secretary of State’s failure to exercise his power to require that abortion services be provided through the NHS in England – to women ordinarily resident in Northern Ireland – was unlawful. The question was whether he failed to discharge his duty under the National Health Service Act 2006, s 3 to “take such steps as he considers necessary to meet all reasonable requirements” for services. It also considered whether the continuing failure to provide such abortion services infringed the European Convention on Human Rights (“ECHR” of “the Convention”), art 14 in conjunction with 8. In particular, the Supreme Court considered to what extent these rights under the ECHR should be informed by other obligations and principles of international law.
Supreme Court Judgment
The Court of Appeal had found that the Secretary of State was entitled, as part of his general powers to provide for the functioning of the National Health Service (“the NHS”) in England, not to make any provision for the free, lawful termination of pregnancies in England for those women who were citizens of the UK but who were usually resident in Northern Ireland.
The appellants appealed to the Supreme Court on two grounds. The first was that the failure to make provision for free abortions in England was unlawful in public law because the respondent (a) took into account an irrelevant consideration when exercising his power; (b) took a decision which was irrational; and (c) in fact the respondent had a duty, not merely a power, to make such provision. The second ground of appeal was that the decision was unlawful because it breached the appellants’ rights under arts 8 and 14 ECHR.
“the right of pregnant women to exercise autonomy in relation to treatment and care has been hard won but it has been won”
The Supreme Court agreed with the Court of Appeal by a 3-2 majority (Baroness Hale and Lord Kerr dissenting) and dismissed the appeal on both grounds. In particular, the Secretary of State was entitled to respect the democratic decision of the devolved administration in Northern Ireland and to acknowledge the ability to purchase private abortions. On the issue of human rights, the majority accepted – and by the time of the hearing was no longer disputed by the respondent – that the issue was within the scope of the ECHR, art 8 in relation to autonomy and dignity rights. However, the Court concluded that the appellant’s rights under the ECHR, arts 8 and 14 were not breached. It accepted that there was discrimination on the grounds of usual residence but held that it was justified. In short, the majority concluded that the Secretary of State was entitled to exercise his discretion in such a way as to respect the different choices of the devolved legislatures. Their decision to restrict the availability of abortions was for them, as a devolved power, to take and the Secretary of State was entitled to not interpret the law in England in a way that might interfere with or restrict those choices.
Lord Kerr and Baroness Hale dissented from the majority. Lord Kerr argued that it was not a question of the law in Northern Ireland, but rather the law of England when the women were in England. As the women were usually resident in England and so entitled to NHS services, it did not impinge on the democratic decision of the Northern Ireland administration to restrict access to abortions to its own residents. Baroness Hale agreed with this. She furthermore argued that these were fundamental questions of democracy and autonomy. As she put it at paragraph 93: “the right of pregnant women to exercise autonomy in relation to treatment and care has been hard won but it has been won”.
The Court placed very little weight on the international law materials relied upon
The Court also considered the relevance of international conventions and soft law to its interpretation of Convention case law. The Appellants relied on the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), which requires the UK – as a party – to “ensure to women appropriate services in connection with pregnancy […], granting free services where necessary.” They also relied upon CEDAW General Recommendation No. 24, issued in 1999 by the Committee for CEDAW which recommended as part of its elaboration on Article 12 that “[w]hen possible, legislative measures criminalising abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion.” They relied on similar provisions in General Comment No 22 (2016) of the UN Committee on Economic, Social and Cultural Rights (“ESCR”). The Court placed very little weight on the international law materials relied upon [34-35]. While accepting that such materials were in principle relevant to the interpretation of the ECHR, the Majority held that “at its highest one can say only that there is a trend in some of the international material to which the current law in Northern Ireland runs counter. The trend adds background colour to the inquiry into fair balance under the Convention”.  However, the appellants needed material “of a far more vivid hue” if it was to tip the balance against the Secretary of State’s decision. It furthermore held that the authorities of the committees relied upon by the appellants was “slight” as a matter of international law, relying on Jones v Ministry of Interior of the Kingdom of Saudi Arabia  1 AC 270 at .
Role of international law
The Court’s approach to the relevance of international law materials to their interpretation of what was required by the Convention appears to mark a more restrictive approach than that taken by Strasbourg where the scope of the relevant Convention provision is in doubt. This has been particularly prevalent in cases involving claims of gender based discrimination; here, the Court has noted the importance of having regard to the specialised legal instruments addressing discrimination against women as well as the relevant decisions of international monitoring bodies: Opuz v Turkey  50 EHRR 28. Provided there is a sufficient link between the international treaty and the Convention right in issue – e.g. where the international instrument is directly concerned with a particular form of discrimination – then the interpretation of the scope of the Convention right will be informed by any relevant international law instrument: see, e.g. Lord Reed in R(JS) v Secretary of State for Work and Pensions  1 WLR 1449 .
international law must achieve near uniformity – and be sufficiently specific in its language – before it will be considered as a useful interpretative tool by the domestic courts
In the present case, the international treaties relied upon by the Appellants were clearly directly relevant to the form of discrimination that was said to breach their Convention rights. While they do not mandate the provision of free abortion services by states to persons not normally resident in that state, it was accepted by the majority that there was at least a “trend” in some of the international material presented to which the Northern Irish position appeared to run counter. Taken together with the short shrift given to the various “soft law” materials promulgated by the Committees tasked with interpreting the scope of these international instruments, the Supreme Court appears to place a high burden on those wishing to rely on international instruments to inform Convention rights. The majority also relied on the observations of the House of Lords in Jones v Saudi Arabia  1 AC 270 where, at paragraph 23, Lord Bingham remarked that the treaty body established under the UN Convention Against Torture was neither an exclusively legal nor adjudicative body and in making a general recommendation on the absence of effective measures to provide civil compensation to victims of torture in Canada it did not “advance any analysis or interpretation of … the Convention”.
The key question for those wishing to rely on international law – both treaties and the general recommendations of any related treaty body – must therefore be whether there is a sufficiency of material, directly relevant to the scope of the Convention right in question, which aids in its interpretation. However, the Supreme Court has set the threshold high in this case. Despite a “mass” of material put before the court, it was said to add only “background colour” to its inquiry into the fair balance to be struck . It seems then that international law must achieve near uniformity – and be sufficiently specific in its language – before it will be considered as a useful interpretative tool by the domestic courts.
Editors’ Note: A previous version of this post appeared on the UK Supreme Court Blog