How a legal, media and political campaign came together to force change

By Janet Farrell and Nicola Peart

It would have been impossible, even a month ago, to consider that the government would be forced to back down on the very important issue of abortion access for women in Northern Ireland. But thanks to the arguments raised by the A&B case - they've done just that.  

A&B - a mother and daughter from Northern Ireland - have first hand experience of the region's draconian abortion ban. 'A' was just 15 when she became pregnant. Unable to access abortion services in Northern Ireland, she travelled to Manchester with her mother, B, and used the services of a private clinic, at a total cost of £900 (including travel). 

As a low income family, this was a huge sum to raise and they were only able to travel thanks to financial support from the Abortion Support Network charity. The abortion was delayed due to the need to raise money, meaning it was more physically invasive and distressing than it should have been.

Following their ordeal, the mother and daughter decided to challenge the legality of the Secretary of State’s policy to refuse to make provision for free abortion services for women from NI in England, even though he had the power to do so.

The case was heard by the Supreme Court on 2 November 2016, but its significant judgment wasn’t delivered until 14 June 2017. The Court was sympathetic to the position of women in NI and noted that it was “easy to understand why the plight of women who find themselves in unwanted pregnancy there is deeply unenviable”.

But the majority found by a narrow margin that the policy was not unlawful and that the discriminatory treatment could be justified by reference to the overall legislative scheme, which provides that the four territories of the United Kingdom have control over their own health services.

In so doing the Secretary of State (currently Jeremy Hunt) was entitled to “afford respect to the democratic decision of the people of Northern Ireland” and not to alter the consequences of the restrictions in NI by making such services available free of charge in England. An alternative finding, Lord Wilson said, would encourage health tourism and undermine “the edifice of devolved health services”.

'Double standards'

In robust dissenting judgments by Lord Kerr and Lady Hale, that reasoning was dismantled. Lord Kerr said that A “wasn’t seeking a better level of service but was instead obliged to come to the only medical service of which she could avail”.

He was unimpressed with the argument that the policy would somehow undermine the democratic will of the NI people. Both the Assembly and the British Government were well aware that it was perfectly legal for women to travel to England for abortions.

“That seems to me to partake of double standards," he said. "Women throughout the UK, apart from NI, are entitled to abortion services under the Abortion Act 1967 and the British Government must be taken to approve of, or at least ascent to, that position."

"On that account they must be taken to disapprove of, or at least dissent from, the denial of that right to women from another part of the UK. Why then should they feel constrained, under the guise of affording respect to the NI Assembly’s wishes, make it more difficult for NI women to exercise, in England, rights to which they are undeniably entitled." 

Lady Hale found that the policy “is inconsistent with the principle of equal treatment which underlies so much of our law…. a woman from Northern Ireland who is in Great Britain ought not to be denied, as a matter of policy, the same rights as other women here enjoy.”

Further “it is not the NHS decision making in NI which is at issue but rather the position in the criminal law. That law does not prohibit women from travelling to England to have a perfectly lawful abortion here and it cannot constitute a good reason for a policy denying them health services which are lawful here.” 

Coming together

Having won the case in Supreme Court, just, the government went on to lose the case in the media and ultimately in the House of Commons. The hypocrisy and inequality highlighted by Lord Kerr and Lady Hale garnered attention as campaigners worked tirelessly in support of Stella Creasy MP’s amendment to the Queen’s Speech, which called for women from NI to be provided with free access to abortion services in England.

It was given wide, cross-party support. The government, reading the writing on the wall, conceded the policy change on 29 June. Justine Greening MP stated “As Minister for Women and Equalities, I share the concerns of many colleagues about the experience of women from Northern Ireland obtaining an abortion through the NHS in England."

"At present women from Northern Ireland are asked for payment, and from now on it is our proposal that this will no longer happen.”

The government has had the power to change this policy for many years, but resisted doing so and indeed defended that policy all the way up to the most senior court in the land.

But factors few could have predicted coalesced in recent weeks, which not only shone a light on the unjust and inequitable position of NI women, but did so at a time when forcing the government’s hand was politically achievable.

Plainly the situation in NI itself remains bleak, especially in light of the Court of Appeal's decision in the NIHRC case. But the government's climb down on free access to abortion services in England and Wales for NI women is a significant step forward and is one worth celebrating. 
 
About the authors: 

Janet Farrell is a solicitor with Bhatt Murphy Solicitors. She acted for Humanists UK (formerly the British Humanist Association), an intervener in the A and B case. Nicola Peart is a pupil barrister at Doughty Street Chambers. Both are members of the legal group of the London-Irish Abortion Rights Campaign. 

 

Links to the A and B judgment, key press releases and blogs reacting to the case are listed below along with links to the government’s new policy position and the reaction to the climb down.

A and B were represented by Simpson Millar LLP (Caolfhionn Gallagher CG and Steven Cragg QC)

Interveners Alliance for Choice, British Pregnancy Advisory Service, Birthrights and Family Planning Association and Abortion Support Network were represented by Leigh Day (Helen Mountfield QC and Jude Bunting)

Interveners Humanists UK (formerly British Humanist Association) were represented by Bhatt Murphy Solicitors (Heather Williams QC and Kate Beattie)

 

A AND B JUDGMENT AND PRESS RELEASES

 

COMMENTARY ON A AND B 

Summary of the Supreme Court decision. The author, Rosalind English, suggests that the judgment is a melting pot of key issues facing society today: “If you want to hear the real deal about devolved government, Northern Ireland, sexual assault, the meaning of ‘England’, abortion, federalism, the power of the state, healthcare, medical tourism, women’s rights, discrimination, nationality, social security or the NHS, you need do no more than read this case”: NI Abortion Refugees: further thoughts, UK Human Rights Blog 15 June 2017: https://ukhumanrightsblog.com/2017/06/15/ni-abortion-refugees-further-thoughts/

The author, Rosalind English, summarises the reasoning behind the Supreme Court decision before discussing the most salient issues. 

Press release. Grainne Teggart, Campaign Manager for Amnesty International in Northern Ireland: “This is a further blow to women for Northern Ireland, who already face some of the harshest abortion laws in Europe … As ever, it is the most marginalised women who will be worst affected" 

Press release, summarising the case and outcome. Martha Spurrier, Director of Liberty: “Will ministers continue to turn a blind eye to the suffering caused by these antiquated laws – or will they challenge their DUP partners and push for a change supported by the majority of Northern Ireland’s population?" 

Blog by Dr Sheelagh McGuinness and Professor Keith Syrett. The authors give political context and insight into the financial costs for NI women. They also summarise the Supreme Court decision and legal issues arising.

The blog summarises the case, noting a few standout figures and points. Cites Danielle Roberts of Alliance for Choice, commenting that “Recent research published in the BMJ shows that at least 1 woman a day is using safe but illegal abortion pills from Women on Web, risking up to life in prison”. Discusses the political context and battles on the horizon.

The author, Koldo Casla (JustFair UK: https://twitter.com/justfairUK) suggests that international human rights bodies and ECtHR would differ with the conclusions of the majority in A and B.

 

PRESS RELATING TO A AND B

Summary of case, outcome, and press statements by NGOs and campaign groups.

Summary of case, outcome, and press statements by NGOs and campaign groups. [paywalled] 

Summary of case, outcome, and press statements by NGOs and campaign groups.

Summary of case, outcome, and press statements by NGOs and campaign groups.  

Summary of case, outcome, and press statements by NGOs and campaign groups.

Commentary about young girls leaving NI for England, relying in particular on statistics released by the Department of Health and the Abortion Support Network.

Summary of case, outcome, and press statements by NGOs and campaign groups.

Summary of case, outcome, and press statements by NGOs and campaign groups.

 

PRESS RELATING TO GOVERNMENT’S CLIMB DOWN 

An overview of the climb-down and events in parliament, citing Creasy’s withdrawal of her proposed amendment, claiming victory, and saying: “Let us send a message to women everywhere that in this parliament their voices will be heard and their rights upheld”.

Overview of the events in Parliament, noting that “Rather than risk a defeat on a critical day when the Queen’s Speech has to pass, Conservative ministers were willing to shift in the end – to make a big concession to avoid being beaten.”

Hannah Little