R British Pregnancy Advisory Service v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lady Justice Nicola Davies,Lord Justice McCombe |
| Judgment Date | 10 March 2020 |
| Neutral Citation | [2020] EWCA Civ 355 |
| Docket Number | Case No: C1/2019/1498 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 355
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE SUPPERSTONE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice Nicola Davies DBE
and
Lady Justice Simler DBE
Case No: C1/2019/1498
Jude Bunting (instructed by Reynolds Porter Chamberlain LLP) for the Appellant
Clive Sheldon QC and Galina Ward (instructed by Government Legal Department) for the Respondent
Hearing date: 19 February 2020
Approved Judgment
The issue in this appeal is the correct construction of the words “the pregnancy has not exceeded its twenty-fourth week” in section 1(1)(a) Abortion Act 1967 (“the 1967 Act”).
Section 1 of the 1967 Act provides, so far as is relevant:
“(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
…
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
The appellant, the British Pregnancy Advisory Service (“BPAS”), is a registered UK charity, which provides reproductive health services, primarily on behalf of the National Health Service in England, Wales and Scotland, from 70 clinics across the England and Wales. It specialises, amongst other matters, in late-term abortions.
On 23 July 2018 the Chief Medical Officer (“CMO”), acting on behalf of the respondent (“the Secretary of State”) wrote to all doctors (“the Decision Letter”) performing termination of pregnancy in the following terms:
“ Clarification of time limit for termination of pregnancy performed under Grounds C and D of the Abortion Act 1967
I am writing to clarify the Department of Health and Social Care's interpretation of the legal time limit for termination of pregnancy performed under Grounds C or D of the Abortion Act 1967, which sets out that an abortion can legally be performed under these Grounds where ‘the pregnancy has not exceeded its twenty-fourth week’. The Department's legal advice is that the time limit for abortion performed under Grounds C or D equates to a pregnancy not exceeding 23 weeks and 6 days. The taking of the second abortion drug or surgical evacuation forms part of the treatment for termination of pregnancy and therefore all elements of treatment must be completed by 23 weeks and 6 days.
This advice is based on the fact that, clinically, a pregnancy is dated from the 1 st day of the woman's last menstrual period (LMP). As you will be aware, this day is counted as day 0 of her pregnancy. Therefore, when the woman reaches 23 weeks + 0 days she will have entered her 24 th week of pregnancy, which will run from 23 weeks + 0 days to 23 weeks + 6 days (7 completed days of pregnancy in total). Using this method of calculation, a woman will have exceeded her twenty-fourth week of pregnancy once she is 24 weeks + 0 days pregnant, or in other words, from midnight on the expiration of her 24 th week of pregnancy. On the expiration of her 24 th week of pregnancy, she will have been pregnant for a total of 168 days; an abortion on the 169 th day (24 weeks + 0) would, in the view of DHSC's legal services, be unlawful.
To remove any ambiguity, HSA4 forms and other relevant documentation, including the Required Standard Operating Procedures for independent sector providers will be amended to clearly state that abortion under Grounds C or D can legally be performed up to and including 23 weeks and 6 days.”
In proceedings for judicial review the appellant sought to challenge the interpretation of the phrase “the pregnancy has not exceeded its twenty-fourth week” in section 1(1)(a) of the 1967 Act. It is the appellant's case that the phrase should be given what it says is its natural meaning, thus a pregnancy reaches its 24 th week on week 24 + 0 days and does not exceed the 24 th week until week 24 + 1 day. Such a reading accords with the Secretary of State's long-standing interpretation of section 1(1)(a). The effect of the CMO's July 2018 interpretation is to remove a day from the upper time limit for lawful abortions. The implications, in the context of this penal statute, are said to be considerable both for women undergoing a termination of pregnancy and for the registered medical practitioners who are involved in the process.
The appellant's challenge was heard by Supperstone J ( [2019] EWHC 1397 (Admin)). In dismissing the challenge, the judge determined that the correct construction of the words “the pregnancy has not exceeded its twenty-fourth week” in section 1(1)(a) of the 1967 Act is that a woman will have exceeded her 24 th week of pregnancy once she is 24 weeks + 0 days pregnant, or in other words, from midnight on the expiration of her 24 th week of pregnancy, as stated in the Decision Letter.
Following refusal by the Administrative Court, Hickinbottom J granted permission to appeal upon the issue of the interpretation of these words in section 1(1)(a) of the 1967 Act.
Legislative history and framework
At the time of enactment, section 1(1) of the 1967 Act did not specify any time limit. Section 5(1) of the 1967 Act stated: “Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus)” (“the 1929 Act”). Section 1(1) of the 1929 Act provides that it is an offence for a person to cause a child to die before it has an existence independent of its mother, with the intent to destroy the life of a child capable of being born alive. Section 1(2) provides that “… evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive”. It follows that when the 1967 Act was first enacted, the time limit for effecting a lawful abortion was 28 weeks.
The 1967 Act was amended by the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”) which introduced new subparagraphs to section 1(1) of the 1967 Act, with effect from April 1991. They included inserting the words “not exceeded its twenty-fourth week” at section 1(1)(a) ([2] above).
The Abortion Regulations 1991 prescribed, inter alia, the processes by which the medical opinion required by the 1967 Act shall be given. Medical practitioners must complete two forms, HSA1 and HSA4. The HSA1 form is used for the purposes of certifying that the opinions required by section 1(1) of the 1967 Act are held. It was mandatory to use the HSA1 form in England until 18 April 2002 and in Wales until 17 December 2002. Following amendments made to the Regulations in 2002 the forms are no longer mandatory and medical practitioners can provide the prescribed information by other prescribed methods.
The HSA1 form is to be completed by two registered medical practitioners, prior to carrying out any abortion, to certify that they are of the opinion, formed in good faith, that one of five grounds applies. The grounds are known as Grounds A to E. Relevant are Grounds C and D:
“C. The pregnancy has NOT exceeded its 24 th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman;
D. The pregnancy has NOT exceeded its 24 th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman;…”
Grounds C and D reflect section 1(1)(a) of the 1967 Act and are the only grounds that contain a time limit.
The HSA4 form is used for the purpose of giving notice to the CMO of a termination. It contains the same reference to Grounds A to E, in particular Grounds C and D. Like HSA1, the HSA4 form is no longer mandatory and medical practitioners can provide the required information by other prescribed methods. At section 12 of the form, the medical practitioner is required to specify the number of weeks of gestation by: (a) completing a tick box that confirms the pregnancy has or has not exceeded its 24 th week; and (b) filling in the blank to enter the number of weeks at which gestation is estimated at.
Factual background
The history of the Secretary of State's understanding of the correct interpretation of section 1(1)(a) of the 1967 Act is set out in the witness statement of Ms Andrea Duncan, the Deputy Branch Head for the Healthy Behaviours Team in the Department for Health and Social Care (“the Department”). Ms Duncan has worked in and subsequently managed the team who lead on abortion policy for some 20 years. It is accepted that the Secretary of State's interpretation of section 1(1)(a) of the 1967 Act has not been consistent.
Ms Duncan states that the earliest evidence of a position being taken on this issue was the amendment of the HSA4 form with effect from December 2002 to include the words “this includes pregnancies up to 24 weeks + 0 days” after the...
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