The judgments contain many interesting observations on devolution issues and democratic respect, on the impact of international law on domestic law, on common-law rights adjudication and on ‘margins of appreciation’: legal issues which lawyers and scholars will consider over time. They also concern an acute political controversy which may come to the forefront of debate right now.

When, on 7th June 2016, the Court announced that a decision would be handed down on Wednesday 14th, the Supreme Court Justices will have been aware that it would be legally controversial, involving as it does, abortion, rights-based adjudication, and the relationship between the legal systems of the devolved nations of the United Kingdom. But unless the judges had greater predictive powers than those of any psephologist, they will not have anticipated the result of the 8th June general election or the way the decision may influence discussions between the new minority Conservative administration and the Democratic Unionist Party of Northern Ireland.

Although this case might be characterized as the Northern Irish Roe v Wade, there was almost no media coverage of the hearing in November 2016. In the post-Miller environment, where there is increased awareness of the overlap between legal and political controversy, the judgment may attract more public attention.

The Appellants were a girl who had become pregnant at 15 and her mother, who had had to travel to the UK to obtain a privately funded abortion, in traumatic and expensive circumstances.

The Abortion Act 1967 does not extend to Northern Ireland, and abortion in Northern Ireland is available only in far narrower circumstances than elsewhere in the United Kingdom. Women in Northern Ireland can be, and indeed are, prosecuted for obtaining abortions in circumstances which would be lawful throughout the rest of the United Kingdom. The result is that a steady stream of women who are usually resident in Northern Ireland are obliged to make the journey to England in order to secure abortions. Nor can they obtain an abortion under the English NHS (except in an emergency) so they are obliged to attend private feepaying clinics. Lord Wilson, setting out the facts in the majority judgment, observed with sympathetic but laconic understatement that “the plight of women [in Northern Ireland] who find themselves in unwanted pregnancy there is deeply unenviable”.

However, the majority of the Supreme Court found that the duty under section 3 of the National Health Service Act 2006 to provide medical services “to such extent as he considers necessary to meet all reasonable requirements”, and his power to make directions as to what those might be, did not compel the Secretary of State (before 2013) or Trusts (after that date) to provide abortion services to UK citizens usually resident in Northern Ireland. Nor was the majority persuaded that such a reading of the legislation breached the Appellants’ rights under Articles 8 and 14 of the European Convention on Human Rights, even when these were read in the light of more specialist international legal instruments like CEDAW.

The majority accepted that access to abortion was within the ambit of the autonomy and dignity rights protected by Article 8, and that there was discrimination as between UK citizens in England on grounds of usual residence, but that this was justified. It held that the Secretary of State was entitled to exercise his discretion in such a way as to afford respect to the different legislative choices of the devolved legislatures as to the availability of abortion in their respective jurisdictions, and not to interpret the law in England in a way which might impinge on those choices.

However, Lord Kerr and Baroness Hale gave powerful dissenting judgments, which may hold sway if the case goes to Strasbourg. As Lord Kerr put it (see paras 84-85 and 91), no one in this case was arguing about what the law should be in Northern Ireland; they were arguing about the treatment that Northern Irish women should be entitled to receive, without discrimination, under the law of England, when they were in England. This did not impinge upon democratic respect for the decisions of the Northern Ireland Assembly about availability of abortion in Northern Ireland.

Baroness Hale agreed with Lord Kerr. She based her reasoning on the “fundamental” common law values of autonomy and equality and especially of human dignity. Reviewing the caselaw, she said (at para 93), that “the right of pregnant women to exercise autonomy in relation to treatment and care has been hard won but it has been won”. Though not, at least not yet, in relation to the women of Northern Ireland.

Research repeatedly shows that gypsies and travellers’ needs for culturally appropriate obligation are overlooked during the planning process, so in many areas there is a failure to allocate adequate land for travellers’ needs for regular stopping sites.  The failure to include the needs of gypsies and travellers in local plans makes it easier for planning authorities to refuse planning permission, often under local pressure to do so.  But planning inspectors, deciding whether to make exceptions to policies against permitting housing in the Green Belt, were sometimes prepared to take steps to mitigate this, by taking into account the absence of a supply of suitable  land allocation for gypsy sites.

Eric Pickles, Secretary of State for Communities and Local Government, resolved to put an end to what he perceived as an over-emphasis on exceptionalism in the cases of gypsies and travellers.   Ministerial Statements of July 2013 and January 2014 announced that he would consider for recovery all traveller site appeals in the Green Belt for the Minister to determine them himself. Those statements set out that the Secretary of State “wishes to give particular scrutiny to traveller site appeals in the green belt, so that he can consider the extent to which Planning Policy for traveller sites is meeting this government’s clear policy intentions”.   The evidence was that at first 100% of gypsy and traveller applications were called in and then 75%.

This use of the policy creates particular, and disparate, disadvantage for gypsies and travellers. It results in serious delay in determination of applications for planning permission (1-2 years), and the policy approach which the Secretary of State has taken in determining these appeals means that fewer  are succeeding.

The policy was the subject of a judicial review in the case of Moore & Coates.  The Claimants were gypsies whose appeals against refusal of planning permission for small sites to pitch caravans in the Green Belt had been called in and refused.  Mr Justice Gilbart decided that the application of the Ministerial Policy to recover all travel pitch appeals, or an arbitrary percentage of them, constituted unlawful indirect race discrimination in the performance of a public function, contrary to sections 19  Equality Act 2010, and also involved a breach of the Public Sector Equality Duty.  Although it was a matter for the Minister if he wished to recalibrate the policy approach to special circumstances and to encourage more effective provision for traveller sites in local plans, the means he had chosen was disproportionate, given the extent of detriment it imposed and other means of achieving those objectives which had been drawn to his attention by his own officials.

The judge quashed the decisions to recover the Claimants’ appeals, though he did not quash of the Ministerial Policy itself.  This judgment is an important landmark, countering the suggestion that singling out applications for planning permission by gypsies and travellers for scrutiny is not discriminatory because they are asking for something different from the settled community rather than symmetrical ‘equal treatment’.  Although the judgment does not expressly rely on the Council of Europe Framework Convention on Minority Rights, it chimes with its overarching policy purpose, that members of minorities should not have to choose between respect for their differences and equal enjoyment of the social advantages enjoyed by the majority, and that proper reasons are needed before a policy particularly affecting the lifestyle of a protected minority group is singled out for special attention.

Despite the determination that the application of Ministerial Policy was unlawful, there is no evidence that the Minister has changed his approach to the recovery of traveller appeals.   Unless and until he does so, we can expect further challenges to refusals of planning permission, building on the logic of the Moore & Coates case.

Firstly, the Prime Minister announced that the government would be “cutting back on judicial reviews”.  He  said  that although some  (such as the challenge to the  award of the West Coast mainline franchise) were well-founded, “so many are completely pointless”.  He would, he said,  cut  back on judicial reviews by increasing the fees payable to bring them, and reducing the time limit for doing so.

There is, though, no evidence that impecunious litigants are more likely than the well-heeled  to bring unmeritorious cases; and of course, it is for the courts to decide which challenges are well-founded and which are ‘pointless’.  Access to justice is a fundamental constitutional right, long established in the common law.  An increase in court fees which has the effect of barring  litigants from access to the court will breach that constitutional right:  R v Lord Chancellor’s Department ex parte Witham [1998] QB 575.

The decisions to increase fees and cut time limits for judicial review are not ones upon which the government has consulted.  But this may not matter,  because the Prime Minister’s second announcement was an intention to cut back on consultations.  “We are saying to Ministers …if there is no need for a consultation, then don’t have one”.   The Prime Minister claimed that “when we came to power, there had to be a three month consultation on everything, and I mean everything, no matter how big or small”.

That was not an accurate summary of the Cabinet Office Code of Practice on Consultations 2008, which explicitly stated that there was ministerial discretion as to when consultation was required:

“This Code is not intended to create a commitment to consult on anything, to give rise to a duty to consult, or to be relied on as creating expectations that the Government will consult in any particular case. The issues on which the Government decides to consult depend on the circumstances in each case”.

The 2008 Code did, however, draw attention to the need to ensure that consultation exercises were accessible and clearly targeted at the subjects of proposed decisions, including those “tough” decisions mentioned by the Prime Minister (capping welfare; freezing child benefit; raising the state retirement age).  These are decisions where the impact will not be felt equally across society.  And, as the courts  in those pointless judicial reviews, have noted, a decision maker can scarcely give ‘due regard’ to the equality implications of its proposed decisions, as required by s149 Equality Act 2010,  if it has not asked those who may know what they might be (R(Rahman) v Birmingham City Council  [2011] EWHC 944 Admin).

That may not matter either, though, because the Prime Minister also thinks that too much time is spent thinking about equality issues.  His third announcement was  that – in an effort to stop ‘gold-plating’ EU legislation – he was “calling time” on Equality Impact Assessments.  We don’t need these “reams of bureaucratic nonsense”, he said,  because “we have smart people in Whitehall who consider equalities issues while they’re making policy”.

Again, the Prime Minister’s statement was factually misleading.  The origin of the public sector equality duty, now found in section 149 Equality Act 2010, is not the EU.  Its genesis was the shocking findings of the MacPherson report into the police handling of the death of Stephen Lawrence.  Sir William MacPherson found that the police had subjected the Lawrence family and Stephen’s friend Dwayne Brooks to ‘institutional racism’ because they had not examined how their policies and ways of working affected black people.  The report concluded:

“It is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging sections of our communities’”(Ch. 46.27).

The Divisional Court held in R(Brown) v Secretary of State for Work & Pensions and Secretary of State for Business, Enterprise and Regulatory Reform  [2008] EWHC 3158 (Admin) at [30], that disability too had played “regrettably little part in the thinking and decision making of public authorities” and said, “The purpose of [the public sector equality duty] is to achieve a climate of change.”

Nor was it right to say that the public sector equality duty requires decision makers to  “undertake equality impact assessments” .  Indeed, the courts have deprecated a tick-box approach.  They have, however, required decision-makers to consider equality issues “in substance, with rigour and an open mind”.

Perhaps the “smart people in Whitehall”, like Mr Toad’s “clever men at Oxford”, already know “all there is to be knowed”.  But it is hard to see how they can consider the statutory equality needs properly –  in substance and with an open mind – if they do not inform themselves of other people’s points of view, through proper consultation.  And it will be hard to  hold them to account when they get it wrong if challenge by way of judicial review is regarded as “pointless” and priced out of realistic existence.

“Inattention to [equality] is unlawful and bad government”.  Those were the words of the Court of Appeal in another judicial review (R (BAPIO Action) v Secretary of State for the Home Department [2007] EWCA Civ 1139.    Such “pointless” observations may, however, soon be a thing of the past, as Britain hurls headlong forward in a global race, where the distance between the winners and the losers stands to become ever more marked.

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