Application for Permission and Another
| Jurisdiction | England & Wales |
| Judge | MR BARLING,MR JUSTICE CRANE |
| Judgment Date | 31 October 2001 |
| Judgment citation (vLex) | [2001] EWHC J1031-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4095/2000 |
| Date | 31 October 2001 |
[2001] EWHC J1031-2
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Crane
CO/4095/2000
MR G BARLING QC & MR M CHAMBERLAIN (instructed by Brown Cooper, 7 Southampton Place, London, WC1A 2DR) appeared on behalf of the applicant
MR J EADIE (instructed by Department of Social Security, Department of Health, New Court, 48 Carey Street, London, WC2A 2LS) appeared on behalf of the respondent
Wednesday, 31st October 2001
May it please your Lordship. I think you know the appearances. I appear, with Mr Martin Chamberlain, for the claimant, the Pro-Life Alliance. Mr James Eadie appears for the Secretary of State, the defendant. My Lord, who the claimant is and what its interest is is described in our grounds at paragraph 1 and also repeated in paragraph 5 of our skeleton argument.
As your Lordship also knows, Sullivan J effectively encouraged the hearing of the substantive issues alongside any issues that might arise in relation to permission, and your Lordship confirmed that approach at the short hearing yesterday.
The substantive issue is a short but very important point of interpretation in relation to the Human Fertilisation and Embryology Act 1990, and upon the answer depends whether cloning of human embryos by the procedure known as cell nuclear transfer (or for short "CNR") is governed by the 1990 Act or, as we submit, is left untramelled in any way by the Act.
A further question arises if the Secretary of State's construction of the Act is adopted, namely whether, far from being licensable, permitted and subject only to licensing, under the Act, human cloning by CNR is absolutely prohibited by the Act, whether for therapeutic or other purposes.
We submit that the correct result is one of the two latter ones, either that it is wholly outside the Act and therefore not capable of being licensed under the Act, or that it is wholly prohibited by the Act. In no circumstances, in our submission, is it possible to construe the Act so that human cloning by CNR is governed by it so as to permit its licensing. That then is the area of the debate, my Lord.
The matter is important not least because the technology is now said to be available so far as humans are concerned, or at least there are known to be persons interested in pursuing such a procedure in relation to humans. Also, because the Human Fertilisation and Embryology Authority (sometimes known for short as the "HFEA") has stated publicly that it will not make any decision on any research application involving embryos created using this technology until these proceedings have been concluded.
: Where do I find that public statement?
My Lord, it was confirmed by my learned friend in the course of the application for permission before Sullivan J.
: I saw that reference.
But it has actually been repeated in a newsletter by the authority, I have only just seen this actually, but there is a copy available for your Lordship and I might as well hand it up now (Handed). If your Lordship turns over the page of that update, as it is called, you will see in the right-hand column of the second page "New embryo research regulations", just about an inch or two down from the top:
"(reading to the words) three new categories for which human embryo research is permitted. The authority may now licence for research under paragraph 3 of schedule 2 to the Act but following additional purposes…"
Then it sets out what they are, (a), (b) and (c). Then it goes on:
"Following a recent application for judicial review the HFEA has said that it will not make any decision on research applications involving embryos created using CNR until proceedings have concluded."
However, it says that they:
"… can licence applications under the new categories provided embryos have not been created by cell nuclear replacement."
The implications for the authority are that if our submissions are correct, then in inviting or receiving or determining applications for licences for cloning, the authority would be acting ultra vires or, on the alternative construction which we say may follow from the Secretary of State's approach, it would actually possibly be aiding and abetting a criminal act.
: Why would it be aiding and abetting a criminal act?
Well, in the sense that if the alternative approach is correct —I will come onto this obviously, but my learned friend contends for a very wide interpretation of the Act which, in a sense, reduces the significance of the references to fertilisation —our submission would be that if that approach is to be adopted, which we say is wrong, it would have implications for an absolute prohibition that does exist in the Act in relation to another form of cloning, and it would effectively mean that this form of cloning was covered by that prohibition, absolute prohibition.
: That is 3(3) —
3(3)(d), your Lordship obviously has it in mind. My Lord, I will try and put flesh on that bone in due course.
It may just be convenient, I hope, to see what we mean, where we find the authoritative description, if you like, of what CNR is. That perhaps can be most conveniently looked at in the Donaldson Report, which your Lordship recalls was the report which led to the extension of the research purposes which, in turn, led to these proceedings. That is in the main court bundle at tab 2, beginning at page 27. It is the report of the Chief Medical Officer's Expert Group. If your Lordship would turn to page 48 of that tab, it is paragraph 2.26 of the Donaldson Report. Does your Lordship have that? It records that:
"To date human embryos have only ever been created from eggs and sperm. However, the cell nuclear replacement technique used to create Dolly the sheep shows that embryos can be formed without the use of sperm. Cell nuclear replacement involves inserting the nucleus of a cell from one of the body's organs or tissues into an unfertilised egg (oocyte) which has had its nucleus removed (i.e. has been 'enucleated'). This process is often referred to as cloning. This cell nuclear replacement technique has already been carried out successfully in the laboratory in mammals including sheep, cows, goats, pigs and mice. The resulting cells have been shown to develop through normal embryonic cell division."
Then it goes on:
"In the case of some animal research this process has been carried through to the birth of an offspring: the experiment with Dolly the sheep is an example."
Now, that is all I was proposing to read. Obviously, I will read anything else that my learned friend wants me to.
If it is convenient, if your Lordship could also turn to Dr Bahadur's statement, he being one of the claimant's expert witnesses. That is at the same bundle, page 168, paragraph 22, where Dr Bahadur describes effectively what the stages are in the CNR process. A number of stages are set out there in paragraph 22. This is not, as I understand it, at all controversial. While we are in Dr Bahadur, it might also be convenient just to note that he also summarises the steps that take place in the process of fertilisation. That is at an earlier paragraph, paragraph 8 on page 165.
: But again, there is no controversy about that.
As I understand it, not.
Yesterday, my Lord, we had have a certain amount of discussion about "zygote" and the respective evidence of my learned friend's witnesses and our expert witnesses. That led us to make the submission that we did not see that there was, in essence, a very great area of dispute. Can I just give you one or two references to make that good. That is, first of all, in the same bundle, if your Lordship would turn to page 188. This is an exhibit to Dr Bahadur's statement. The one I am looking at is within the book ""The Second Creation"".
Thank you.
Which is a book co-authored by Professor Wilmut, the Secretary of State's witness. At page 188 of the bundle, page 123 of the book itself, there is some discussion about zygote. This was a book, so one understands the context, as one sees from page 185, the frontispiece of the book, dealing with the cloning process. So it is a book about cloning. At page 123 of the book you can see that there is reference to zygote. All I need to do really, in the light of yesterday's discussion, is to draw your attention to the —at any rate in this context, which may well be the subject of comment, I accept that, but Professor Wilmut and his co-authors appear to be distinguishing at any rate the zygote from the reconstructed embryo, which, as they describe it, is one cell, which is the result of the Dolly cloning technique. Just so you have the complete references to what material there is in our evidence, at any rate —
: Sorry to interrupt you, at the top of page 123 the reference there to zygote is a zygote as part of the fertilisation process.
Yes, that is certainly right. It is being discussed as part of the fertilisation process. You will see also from the very general —and I accept that they are very general —definitions, if you like, in medical dictionaries and so on that appear at page 105 of this bundle, and I will just give my learned friend —if we pause there, Mr Chamberlain reminds me that we probably ought to glance at the glossary in "The Second Creation", which is on the last page. I should have just pointed out the glossary at the back of "The...
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