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Human Rights Law

Gay Marriage in Northern Ireland

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1 December, 2015
Authors, Colin Murray, Human Rights Law, Law & Equality, Legal Topics, Submissions
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“Northern Ireland Assembly Votes to Legalise Same Sex Marriage” proclaimed the headline in The Guardian. Few headlines have promised so much more than the subsequent story delivers. For in spite of the one-vote majority in favour of a change in the law in Northern Ireland in the Assembly on Monday, the DUP’s invocation of a “petition of concern” (POC) on the issue meant that it was able to veto the introduction of same-sex marriage in Northern Ireland. As Gerry Lynch put it, ‘it still felt like a punch in the plexus to finally secure a democratic majority through years of hard work only for it to be vetoed undemocratically’. With rich irony the Northern Ireland Act provisions designed to protect minority groups against predatory applications of majority power have been turned into a means of stymieing reform aimed at delivering marriage equality.

It wasn’t supposed to be like this. With the spectre of the Northern Ireland Parliament’s permanent Unionist majority dominating the drafting of the arrangements for the Northern Ireland Assembly at the time of the Good Friday Agreement, POCs were intended to maintain consociationalism within Stormont by requiring a super-majority and cross-community support where Northern Ireland’s Unionist or Nationalist parties considered that a measure threatened the interests of their community. The ability of POCs to block any legislative change has instead seen them increasingly applied as a strong-arm tactic to prevent changes to the law with the aim of preserving the status quo or extracting concessions in return for a POC being lifted. DUP measures, indeed, appear to be block signed by party MLAs with the issue to which they are to be applied being added to the form at a later stage. Public confidence in the Stormont Assembly’s ability to address the needs of society in Northern Ireland has plummeted.

Whilst the DUP’s stance on gay marriage might be out of step with opinion polling across Northern Ireland, it remains popular with its own core supporters and so the political incentive to wield a POC (ahead of next year’s Assembly elections) remains strong. But if the democratic institutions in Northern Ireland remain so dysfunctional, will the courts intervene to permit gay marriage? Legal challenges to the limitations are already underway in the Northern Ireland High Court. The UUP leader Mike Nesbitt, whilst describing opposition to gay marriage as being on the “wrong side of history” (whilst maintaining his own vote against change), has told his party conference that he expects the new law to be forced upon law makers through the courts.

Forcing law reform through judicial decision could unblock this particular impasse. The need to react to an adverse court decision might help the Unionist parties to soothe the evangelical elements amongst their support base, being “saleable” as a long-resisted reform that was forced upon the parties. All the better if the judgment is not issued until after the Assembly elections. And for people who want to get married, a win is a win, and they are not likely to sniff at the courts forcing the pace of change.

So should the courts intervene? Under section 6 of the Northern Ireland Act the legislation of the Northern Ireland Assembly is not valid law if it is outside the legislative competence of the Assembly (a concept which includes making a law which breaches ECHR rights). But as the Northern Ireland Assembly has not made a law banning Gay Marriage, just failed to enact one allowing it, the general provisions of the Human Rights Act (and its incorporation of the ECHR into UK Law) will apply.

Whilst the ECHR includes a right to marry (Article 12) the Strasbourg Court has to date refused to rule that it is discriminatory for states not to apply this right to homosexual couples. In July, in its latest judgment on the issue,Oliari v Italy, the Court maintained that as only 11 of the 47 states signatory to the Convention had to date accepted same-sex marriage, there was no European consensus in favour of reading such a right into the terms of the ECHR. Many Unionist politicians picked up on this point in Monday’s debate:

The European Court of Human Rights has ruled that same-sex marriage is not a human right, so this is not a rights issue. (Gordon Lyons, DUP)

There is no human right recognised by the European Convention on Human Rights or the European Court of Human Rights to same-sex marriage. It therefore cannot be and is not a rights issue, nor is it an issue of equality. Rather, there is a worked-up, phoney demand for rights where none does or should exist. There is no equality issue here. (Jim Allister, TUV)

These same politicians will eagerly and angrily decry any effort by the Northern Ireland courts to change the law on human rights grounds. But Article 12 is not the only applicable ECHR right. The Court has established that the relationship of a cohabitating same-sex couple living in a stable partnership falls within Article 8 ECHR’s protection of “family life” (Schalk and Kopf v Austria), this might provide a basis for arguing that, as same-sex marriages concluded in other parts of the UK are treated as Civil Partnerships within the Northern Ireland jurisdiction, the awkward legal transformation of a marriage into a civil partnership as soon as someone steps off a ferry or plane amounts to discrimination.

Moreover, the definition of marriage in Northern Ireland law – “the voluntary union for life of one man and one woman to the exclusion of all others” – rests on a nineteenth century judicial decision, Hyde v Hyde (backed up by secondary legislation – the Matrimonial Causes NI Order 1978). By altering this definition the courts cannot be accused of tossing aside legislation enacted by elected lawmakers, a fact which might embolden any judge concerned about the political backlash resultant from such a decision. They also have a much freer hand in terms of their powers under the Human Rights Act than they would have had if the definition of marriage was contained in primary legislation, if they can be persuaded to move ahead of Strasbourg on the issue of Article 12.

This room for manoeuvre makes the gay marriage cases crucial tests for the role of the courts in Northern Ireland’s system of government. On a range of issues from gay marriage, to the ban on gay blood donations to the strict limitations on abortion, judges in Northern Ireland are increasingly being confronted with cases which highlight the blockages in the Assembly’s law-making process. Some might decide that the time has come to chivvy the Assembly along.

Colin Murray.

Prisoner voting rights are another intractable struggle over Europe’s architecture for protecting human rights

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21 October, 2015
Colin Murray, EU, Human Rights Law
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handcuffsLast week, an appeal by a French prisoner to the EU’s top court against his voting ban revived the debate about prisoner voting rights in the UK. Colin Murray writes that although the appeal was unsuccessful, the ruling did not foreclose the possibility of future successful challenges to bans on prisoner voting. He suggests that it is highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate to their crime in the run up to the 2019 European Parliament elections, indicating the issue will continue to be a thorn in the Conservative government’s side.

It has been eleven years since the Fourth Section of the European Court of Human Rights issued the Hirst v UK judgement. In that time, the issue of prisoner voting rights has become the touchstone for the fraught relationship between the UK and the system of rights protection under the European Convention on Human Rights (ECHR). Whilst other crises (such as Abu Qatada’s deportation to Jordan and the reviewability of whole-life sentences) have been resolved or defused, the Strasbourg Court’s demand that the UK modify its blanket ban on convicted prisoners voting has remained an intractable source of conflict, inflaming the Conservative’s manifesto pledge to replace the Human Rights Act with a British Bill of Rights.

For all of the political fulmination upon prisoner voting in the run up to the 2015 General Election, the UK’s showdown with Strasbourg has of late settled into an uncomfortable stalemate. The UK is in continuing breach of its Article 3, Protocol 1 obligations and as such is subject to regular censure before Committee of Ministers’ meetings for its failure to execute the prisoner voting judgments. At the same time, however, the Strasbourg Court has made it clear, in Scoppola v Italy, that minimal reform of the law to extend the vote to short-sentence prisoners would satisfy the UK’s obligations, and in Firth v UK has denied compensation to UK prisoners for the breach of their rights.

The Court’s first olive branch has been snubbed (with successive Governments failing to respond to a Parliamentary Committee’s recommendation, almost two years ago, that short-sentence prisoners should be enfranchised). But the UK Government’s refusal to meet the Court half way is unsurprising, given the Court’s refusal to press the issue. Strasbourg’s denial of compensation ensures that David Cameron does not have to justify make embarrassing payments to prisoners, effectively downgrading the clash from crisis to a running sore point.

The détente between Strasbourg and the UK makes last week’s judgement of the EU’s top court, the Court of Justice of the European Union (CJEU), even more intriguing. Serendipitously timed for release to coincide with David Cameron’s speech to the Conservative Party Conference (and the ten-year anniversary of the Strasbourg Court’s judgement in Hirst), the CJEU’s judgement in Delvigne v Commune de Lesparre-Médoc caused such consternation that Downing Street was obliged to deny that the UK would change its ban on prisoners voting even before the decision was known. The binding effect of CJEU judgments in domestic law means that its intervention on the issue would be much harder for the UK Government to side-step (at least with regard to European Parliament and local elections) than Strasbourg’s rulings.

In the end, Cameron’s speech was not upstaged, with the Court accepting that EU law was not breached in the ongoing denial of the vote to a convicted murderer in France over a decade on from the end of his incarceration. But if the judgment isn’t exactly headline-grabbing, is Joshua Rozenberg nonetheless right to argue that it means that the UK Government should act now on prisoner voting?

In many respects, the Delvigne reference was easy for the CJEU to resolve. The reference by the French Court was poorly constructed, with the Court being supplied with much less background information to the question of EU law its opinion was being sought on than it would usually expect (opening the possibility of ruling the reference inadmissible). The claimant had not attempted to follow the process which existed in French law to lift his disenfranchisement. Moreover, as a convicted murderer, France could make arguments about the seriousness of his offence warranting the additional punishment of disenfranchisement. The Court accepted that in some cases disenfranchisement was compatible with the EU’s Charter of Fundamental rights. Two years earlier, in Chester and McGeoch, the UK Supreme Court had reached the same conclusion on the limitations of the right to vote under EU Law:

I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law … under [EU law] a ban on eligibility will be justified in respect of a very significant number of convicted prisoners.  (Lord Mance, para.73)

And yet, in spite of these unpromising aspects of this case, the CJEU did not foreclose the possibility of future successful challenges to prisoner disenfranchisement using the Charter. The Court rejected the argument of the UK Government, intervening, that EU law was not engaged by criminal law sanctions or was not a live issue because the case involved a French national challenging French Law, and therefore involved no “cross-border” element. The Court affirmed that Article 39(2) of the Charter, by which “Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot”, did not need any cross-border element to generate a fundamental right enjoyed by EU citizens.

This means that in certain cases, claims for votes by prisoners will engage a Charter right. In the run up to the European Parliament elections in 2019 it will be highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate, given that the ban on voting applies automatically irrespective of the level of criminality which triggered imprisonment (which can be much lower than the serious criminality at issue in the Delvigne case) and there is no avenue to challenge the ban (as there was in the Delvigne case). These factors were determinate in the CJEU finding that French law involved a proportionate restriction of the right to vote. Such claims will be hard for the UK courts to dismiss out of hand, and could at the very least trigger a reference to the CJEU for consideration (as they previously refused to do in Chester and McGeoch, because of the serious criminality of the claimants in that case).

“Victories” like this one are therefore hard for the UK Government to crow over, even if they do help to kick the issue into the long grass for a few more years. It may ultimately be better for the UK Government to respond when it is not being forced to by pressure from a European Court (not that successive Governments have not revelled in the image of “standing up to Europe”). But perhaps the most interesting aspect of the case is the degree to which the CJEU staunchly refused to engage with any of the ECHR jurisprudence on prisoner voting. The Advocate General’s Opinion, released this summer, reached broadly the same conclusion as the CJEU (that EU law was engaged, but that the ban was proportionate), but did so based on extensive reliance upon Strasbourg jurisprudence.

The CJEU, however, continues to fear that it might lose out to Strasbourg as the ultimate arbiter where EU law engages human rights questions. Last year, it refused to allow the EU to accede to the ECHR and in Delvigne, as with other recent cases, it has shunned any mention of Strasbourg in its decisions out of concern over letting Strasbourg’s influence grow by the back door. Prisoner voting rights are becoming a central feature of yet another intractable struggle over Europe’s institutional architecture for protecting human rights.

Colin Murray is Senior Lecturer in Law at the University of Newcastle

Birth choices: mothers, medics and social services

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23 July, 2014
Harry Perrin, Human Rights Law, Medical Law
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Pregnant_woman_silhouette

 

– Harry Perrin (Solicitor)

Birth choices: mothers, medics and social services Harry Perrin (Solicitor) Standing up for yourself is not easy when you are lying on your back, and even the most robust people find it at least a little uncomfortable asserting their position to perceived authority figures. Women in labour face just this challenge in respect of the treatment they receive (or not) and the procedures to which they are subjected during birth; likewise for antenatal and post-natal treatment.

Know this: your consent must always be sought before any medical procedure is performed on you (Article 8 of the European Convention on Human Rights (ECHR) – right to private life, which the courts have interpreted as encompassing the right to physical integrity and autonomy).

And know this: the court has ruled that you have the right to refuse treatment even if doctors regard your decision as ill-advised (Re MB, 1997), even if it might lead to your death, and even if it might lead to death or serious harm to you or your baby (St George’s Healthcare Trust v S, 1997).

This might seem extreme at first glance but it is an important safeguard. Healthcare professionals on the ground might think one course of action is the right thing to do; the mother might think differently. This could apply to antenatal care (for example, attendance at check-ups and scans); during labour (consenting to a lumbar puncture or having an unassisted birth) or post-natal care (such as inoculations or other treatment). A court could try to determine the issue but, when the mother is in labour, there would obviously be no time. Just to concede to the doctor as the ‘expert’ would violate Article 8. The only safe position is for the mother to have the final say; in law at least, in theory. In practice, lines become blurred as these rights must operate alongside the statutory regime of safeguarding.

Healthcare professionals should inform social services if they reasonably believe that a child will be at risk of significant harm once it is born (Children Act 1989), but when this duty is used as a ‘threat’, to try to coerce the mother into allowing a particular treatment or procedure, it becomes less about statutory safeguarding and more about the undermining of legal rights. It is unclear whether the practice of doctors ‘threatening’ mothers and families with a social services referral before, during or after labour is widespread; it would be difficult to collect the data. My evidence is all anecdotal, but Birthrights, an organisation seeking to protect human rights in childbirth (on whose website I have gratefully relied for the law), clearly believes it is a danger sufficient to warrant specific advice to mothers.

The healthcare professional in this context may seek to rely on the mother’s refusal to undergo this or that procedure as evidence that she would be unable to act in her child’s interests once born. It is perhaps too flippant a retort to say that the mother’s choices were related to the birth process and thus would not be relevant once the child was born, but this does not put the doctor in the right. The healthcare professional who makes the ‘threat’ of a referral would presumably be seeking to change the mother’s mind, to make her make the ‘right’ decision. The threat, however, actually has the opposite effect: it makes the mother’s decision less reliable, less ‘right’. Consent is not freely given if it is influenced by a threat, and a doctor who carries out a procedure on a person where he/she knows (or should know) that consent has not been given freely is committing a battery and potentially a violation of Article 8 ECHR.

Moreover, it is by no means the case that a mother’s choice not to ‘co-operate’ with medical professionals will or should automatically warrant a referral to social services. Such a referral is only appropriate where the choice indicates a risk of significant harm to the child once born.

During labour, it may not be particularly easy for the mother or her birth partner to remember Article 8 ECHR, Re MB, St George’s v S and the Children Act 1989, less still to cite them in a coherent and compelling way; and this would depend on the healthcare professionals’ willingness to listen. The most powerful tool a mother or birth partner can have may simply be the confidence which comes from knowing their rights and knowing the procedure which would actually ensue if the threat of a referral to social services was carried out. The power of such threats lies in the unknown; in the imagination of the fearful mother who thinks the involvement of social services will equate to her child being taken away and placed into care. It is not so.

Firstly, the medical professionals making the referral should obtain the consent of the parents to do so unless seeking consent will place the child at risk. Within 10 days of the referral, an Initial Assessment should be carried out to gauge whether the child is at risk of significant harm: stage one in terms of social services’ continued involvement, should matters even make it this far. Should a finding of risk of significant harm be made at this assessment, the next stage would typically be an enquiry under section 47 of the Children Act. The enquiry is based on a ‘Core Assessment’, an information-gathering exercise to which relevant professionals contribute along with, crucially, parents and family members. It is the second stage in terms of social services’ involvement. The next step is a Child Protection Conference at which the information is analysed and any proposed actions set out in respect of keeping the child safe in the future: stage three. Bear this thorough process in mind when you are weighing up the likelihood of a referral leading to care proceedings because you did not want an ultrasound, had an unassisted birth, refused a lumbar puncture, or turned down inoculations. Will exercising your legal rights in ways such as these – in and of itself – really clear these hurdles and convince social services to apply to have your child taken into care?

Ultimately, only a court can make the decision to remove your child or take away your parental responsibility. A social worker cannot, and a doctor certainly cannot. There is a principle in family law known as the ‘no order principle’, in which the court must be convinced that making an order in respect of the child is better for him/her than making no order at all. Ask yourself the question again: will exercising your legal rights before, during or after labour really – in and of itself – convince a judge that making an order after the event would be better for your child than making absolutely no order at all?

It is filled with jargon and possibly scary, but it is worth knowing the process which would follow if a threat to make a social services referral were carried out. It indicates that some such threats will be empty; and that those that are not will not easily lead to care proceedings (at least not without other evidence which might indicate that you cannot care properly for your child). It reveals the social-services-equals-child-in-care equation which causes such fear, and from which such threats gain their power, as the misapprehension it is.

Fear during labour comes from lack of knowledge. This is as true for the physiological and spiritual sides of birth as it is for the legal. Empowerment and confidence come not from citing court cases or European legislation, but from the mother and her birth partner knowing their rights. Labour is no time for lying down.

Harry Perrin is a lawyer who helps people, organisations and businesses understand their rights, make informed choices, and achieve their goals through the best possible means.

Any views expressed are those of the author and should not be taken to represent those of his employer.

Rule of Law v National Security: The Big Fight Live

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16 June, 2014
Colin Murray, Human Rights Law, Terrorism Law
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boxing

 

– Colin Murray (Senior Lecturer, Newcastle Law School) [email protected]

This post was first published on Human Rights in Ireland

In his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at [4]): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at [4]) as “a national interest of the first importance”.

But after decades of ruling the roost in the UK, and in the era of Al Qaeda in which the function of the state to protect individuals within its jurisdiction has been touted more widely than ever before, national security has been rocked in a succession of legal battles. It started in December 2004, in Belmarsh Detainees, when the right to liberty landed the blow that ended indefinite detention without trial for suspected foreign national terrorist suspects under the Anti-Terrorism Crime and Security Act 2001 (New Labour’s flagship response to 9/11). Five years later, in AF (No.3), the right to a fair hearing ultimately emerged victorious from a series of crunch battles with Control Orders (the system of executive-imposed “house-arrest” restrictions which replaced detention without trial). The embarrassing setbacks in the deportation of Abu Qatada saw a plucky combination of the prohibition of torture and the right to a fair hearing run rings around national security interests. Suddenly, under the European Convention principles brought into the UK legal systems through the Human Rights Act 1998, national security was no longer unassailable. The Home Secretary Theresa Mayfumed:

The problems caused by the Human Rights Act and the European Court in Strasbourg remain and we should remember that Qatada would have been deported long ago had the European Court not moved the goalposts by establishing new, unprecedented legal grounds on which it blocked his deportation. I have made clear my view that in the end the Human Rights Act must be scrapped.

Seeing these victories under the banner of human rights, advocates grew in confidence in propounding rule of law principles in the face of national security. And the courts responded. In Binyam Mohammed’s case, after interminable rounds in the High Court and an ultimate show down in the Court of Appeal, the rule of law emerged victorious (at [17]); “the interests of open justice must prevail”. Everyone loves a home-grown winner, not tainted by coming out of the “European” stable. The courts of the UK seem energised by these developments; after all, how could even the Daily Mail question a judicial approach rooted back 799 years to Magna Carta. David Cameron might well rue claims like:

In many ways the Government has a choice between this country’s ancient rights of habeas corpus and the right not be detained without trial; between Magna Carta and the ECHR.

And so last week a battered and bruised national security turned out once again against the rule of law, now touted (at [2]) as “a priceless asset of our country and a foundation of our Constitution”. But national security is nothing if not adaptable; it keeps bouncing back. For none of the above defeats of national security interests can be characterised as a knock out. The courts may have closed certain doors, but every one of the above judgments has opened new windows for national security interests.

Detention without Trial and Control Orders may have gone. TPIMs, the only form of executive measure that the courts are comfortable with signing off as “human-rights compliant” may well be “withering on the vine”, in the words of Parliament’s Joint Committee on Human Rights, because for the security services they require too extensive a level of disclose to restricted individual for too little security benefit (as seen by multiple cases of absconding from TPIMs). Deporting foreign national terrorists may be harder than ever since Abu Qatada’s case. But the criminal justice system has proven entirely open to adaptation to take up the slack. In the words of Professor Clive Walker:

The prime focus of United Kingdom anti-terrorism policy and laws in the aftermath of 9/11 seemed to be on Belmarsh rather than on the Old Bailey – in other words on detention without trial and latterly on control orders. However, the era of executive measures was never exclusive and is fading.

Criminal law responses to terrorism have picked up where executive responses have fallen foul of judicial scrutiny. And this end point is unsurprising; the criminal justice system enjoys a level of legitimacy that special counter-terrorism measures never will. Adapted offences and special police powers can be sold on civil liberties grounds much more easily than detention without trial. In legislation like theTerrorism Act 2006 we have seen offences emerge that are broader in their scope than anything ordinarily expected within the criminal law, like the offence under section 5 of “acts preparatory to terrorism”, where any act, no matter how insignificant, giving effect to a terrorist intention can carry with it up to life imprisonment. Modern criminal justice in the UK has not come closer to the invocation of a thought crime. And the judiciary have not halted this process, indeed they have encouraged it. Lord Hughes, rejecting one challenge to the similarly objectionable section 6 offence, intoned that “the complaint that is made is not about the certainty of the section, it is about its breadth and its breadth is a matter of policy for Parliament.”

Give national security an inch, and its proponents will take a mile. Invite it in to the criminal justice system, and there is a real risk that it will so thoroughly pollute the system that it will poison the very legitimacy that it sought to feed off. That is how, in AB CD, we got to a case where the authorities sought to import all of the benefits of the secret processes they enjoyed in executive measures proceedings into the criminal justice process, where they could be happily married to extended criminal offences. Today’s judgment fends off this possibility (at [21]):

We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case.

And this would indeed be a gross departure for the criminal justice system. The possibility would open up the UK to the possibility of cases like that of Prisoner X, who died in an Israeli prison in 2010, with no possibility for public scrutiny of the fairness of his treatment. Following today’s ruling, the media can name the individuals involved in this case as Erol Incedal and Mounir Rarmoul-Bouhadjar. And yet much of the trial will proceed in closed court (at [14]):

We are persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution.

And so in this case secret hearings will be able to proceed with regard to offences as broad as section 5 of the Terrorism Act 2006; one of the offences with which AB is charged. The trial is slated to commence next Monday in the Central Criminal Court. National Security, bloodied but unbroken, wins on points.

Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

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19 May, 2014
Dr Sylvia de Mars, Human Rights Law, Medical Law
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nhs

 

– Dr Sylvia de Mars (Newcastle University)

This post was first published on Human Rights in Ireland

Given that my  research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge.  The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one.

In rejecting the claim, the High Court applied public law as it currently stands in England, and though the judgment does not state this explicitly, one would assume that it has done so not least of all because the issue of access to the English NHS has been an increasingly politically sensitive one in recent years.  What few restrictions exist in English law to entitlement to access the NHS, the English courts have in this case attempted to uphold, and they have done so by emphasising that healthcare is a devolved matter:

Health Policy within Northern Ireland, being neither a ‘reserved’ nor an ‘excepted’ matter, is a ‘transferred matter’ pursuant to s 4 of the Northern Ireland Act 1998 and is thus within the legislative competence of the Northern Ireland Assembly. It is accordingly, in the context of the service provision in issue in the present proceedings, for the relevant authorities in Northern Ireland to decide to what extent abortion services falling within the law applicable to Northern Ireland should be provided by the health service in Northern Ireland consistent with the duties imposed upon them under the applicable legislation.

Provisions on entitlement to treatment by the NHS in England are set out in the NHS Act 2006. Under the NHS Act 2006, anyone who is “ordinarily resident” in Great Britain is entitled to use the NHS for free: section 1(3) states that “free” service is obligatory for all those entitled to use it, unless otherwise noted.  An exception is contained in section 175, which entitles the English authorities to introduce additional legislation to recover charges from “overseas visitors”.

The NHS Act 2006 does not define “ordinary residence”.  In order to make the concept workable in practice, Department of Healthguidance on charging overseas visitors directs NHS employees to apply R v Barnet LBC Ex. p Shah when deciding if a visitor is to be charged.  In Shah, Lord Scarman ruled that anyone adopting an ‘abode’ voluntarily and for settled purposes “as part of the regular order of his life”, regardless of how long, would pass an “ordinary residence” test unless said person’s stay in the UK was unlawful.  This ruling was made in the context of the Education Acts, but — as the Department of Health Guidance states — “is generally recognized to have a wider application.”

Key here is where the NHS Act 2006 demands the residence to be.  Unlike the Education Acts, for example, where “ordinary residence” was demanded in the United Kingdom, the NHS Act 2006 demands “ordinary residence” in Great Britain.  It thus explicitly excludes Northern Ireland.  The general reasoning behind an “ordinary residence” requirement in order to access social services is that visitors to the UK should not be entitled to access what are “free at the point of use” services at the expense of the UK taxpayer.  However, as noted, the exception is — in most areas of law — to those not resident in the United Kingdom.  This was raised by one of the claimant’s mothers in A & Anor, who said:

Having now had the opportunity of taking legal advice in England, I understand that publicly funded health care services are intended to be free at the point of use for all UK residents. I feel my daughter has been treated most unfairly, because when she was required treatment in another part of the United Kingdom, she did not get it, and was offered no assistance by the state health care system. If my daughter had had some other health condition, which necessitated her travelling to another part of the UK for treatment I believe that no obstacles would been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs. [emphasis added]

As King J points out, this is a misunderstanding of the relevant legislation.  King J, however, does not stress that Northern Ireland is singled out as an exception in primary legislation already; instead, he focuses on the fact that abortion is a “secondary care service”, and these are only provided for local residents, by what used to be Primary Care Trusts (PCTs) and what are now Clinical Commissioning Groups (CCGs).  In short, prior to 2013, funding — as directed from the UK Parliament to the Department of Health, and then distributed to PCTs — for secondary care services such as abortion services was again proportionate to “local” populations in areas, and the English NHS (through local PCTs) was entitled to charge for these services unless they are provided in an emergency (as emergency treatment, regardless of where in England it takes place, is always free) or unless the service is provided for what is termed a “qualifying patient”, as in a patient with serious mental illness as per s130C of the Mental Health Act 1983.  Consequently, the law directed the English NHS to charge anyone who is not locally resident for secondary care services, including abortion access, unless a specific exception applied to them.

The law applicable to CCGs is slightly different, as is summarized well in the judgment:

[T]he CCGs are in a slightly different position than were PCTs vis a vis the provision of services to persons ordinarily resident in Northern Ireland. Some services must be provided based on the presence in the CCGs’ area; no such duty applies to other services vis a vis persons ordinarily resident in Northern Ireland (and Scotland and Wales). But there is discretion to commission services, including abortion services, for the benefit of all potential patients, including patients ordinarily resident in Northern Ireland. In this way, decision-making as to the appropriate provision of certain services has been devolved from the Secretary of State to the level of CCG.

As King J ultimately finds in A & Anon, the current position of the NHS Act 2006 is that CCGs can provide abortion services (for free) to Northern Ireland residents if it wishes to, but there remains no obligation to provide these services free of charge.  Rather than accept that, as abortion is (outside very restricted circumstances) illegal in Northern Ireland, the English NHS has a duty to provide abortion services to those “ordinarily resident” in other parts of the United Kingdom, his ruling focuses very explicitly on the fact that the Health Secretary’s general duty is to the people of England, and that the English NHS cannot be held responsible for the fact that the devolved authorities in Northern Ireland impose much more severe restrictions upon the availability of legal abortions in Northern Ireland.

From a functional perspective, there is little to fault in this conclusion.  Health care is not only a devolved matter, but it has now even withinEngland, become a “local” matter.  Financially, the centralized mechanism whereby health services across the United Kingdom are funded is only sustainable if block grants reach CCGs (or the prior PCTs) on the basis of how many residents are likely to need services.  This stands separate from the Northern Ireland position on abortion, and consequently the predictable stream women, resident in Northern Ireland, seeking abortions in England; as a matter of public law, the local English NHS simply holds no responsibility to provide any secondary care that is “free at the point of use” for anyone not ordinarily resident in their particular catchment area, unless very specific exceptions apply.

Acceptable as this functional, “respectful of devolution” reasoning is likely to be to those concerned about the English NHS’s budgetary crisis, however, it ultimately hides behind devolution to ignore the fact that a substantial number of women who have UK citizenship cannot benefit from human rights law applicable within the United Kingdom as a whole.  As the Abortion Act 1967 does not apply to Northern Ireland, the claimant attempted to argue that denial of free access to the NHS to obtain this abortion violated Article 14 (on non-discrimination) of the European Convention of Human Rights, by way of interference with her Article 8 (right to private life) right:

The claimant would say that she is treated differently from all other citizens of the United Kingdom as regards access to ‘state funded abortions’ because unlike citizens ordinarily resident in England, Scotland or Wales, she has no option of returning to her place of ‘usual residence’ in order to access a state funded abortion…

King J was very quick to dismiss this argument, and he does so in very formalistic terms.  He ruled that there was no such thing as a right to a “state funded abortion”; rather, that Article 8 and 14 read together require residents of Northern Ireland to be able to access abortions in England as any other UK citizen is.  This duty, he concluded, the Secretary of State fulfilled, as the claimant did manage to obtain an abortion in England, and her right to do so was not legally impeded.  What services the NHS provides for free is, in short, not affected by the ECHR; this is a matter of contracting state policy, and not specific to abortion as such.  While technically not untrue, this position does skirt the reality that all healthcare services in all parts of the UK are provided “for free” for those eligible to use them, meaning that the right to obtain such a service privately is at best a half-right — it is not one that anyone outside of Northern Ireland would ever need to make use of, but this is ignored by the High Court.  Similarly ignored is that not all Northern Ireland residents would be able to afford a private abortion,which flies in the face of the philosophy underpinning the National Health Service: the NHS is there to provide treatment on the basis of need, regardless of ability to pay for it.

Additionally, and obiter, King J suggests that there is no “discrimination” in this case at all, in the sense that the residence requirement for secondary care services stems from the objective reasonable justification  of the “division of responsibility for health services within the four jurisdictions of the United Kingdom.”  In other words: this was not a personal ruling, it was a pragmatic one given that healthcare is a devolved matter, and the only way around it would be for the claimant to contest the Northern Ireland’s law on abortion under the ECHR … but this was not what the claimant did.

One way to view the final point is as a nudge for the claimant to challenge the Northern Ireland law on exactly those grounds; it reads almost as an expression of regret, whereby King J indicates he cannot simply ignore the public law in order to rule on the human rights issues.  However, that will be of little consolation for those interested in seeing women’s rights protected in the United Kingdom as a matter ofnational law, rather than international law — and indeed, the latter appears to be what the High Court is very unwilling to do.  Given that the post-2013 restructuring of the NHS has granted CCGs the power to grant access to free abortions as a matter of discretion, the door to actually use human rights to support the ability of women from Northern Ireland to obtain abortions in the United Kingdom where this is legally permissible as a state-funded service appears to have been wide open in this case; but, while highlighted, this was not taken advantage of, nor was the Secretary of State instructed to take this step by simply legislating so that CCGs made services not available in onepart of the United Kingdom available to all those resident in that part in other parts of the United Kingdom.  Ultimately, the four parts here do not make a whole, and from a human rights perspective, this is at best regrettable.

As it stands, the grounds for further action are clearly there — but so far, the High Court remains unwilling to rule in a way that clearly informs the Northern Ireland Assembly that its attitude towards abortion is unsustainable in a United Kingdom that respects the human rights of its female citizens.