R Christian Concern v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice Chamberlain |
| Judgment Date | 19 May 2020 |
| Neutral Citation | [2020] EWHC 1546 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/1402/2020 |
| Date | 19 May 2020 |
[2020] EWHC 1546 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Lord Justice Singh
Mr Justice Chamberlain
No. CO/1402/2020
Mr M. Phillips (instructed by Andrew Storch Solicitors) appeared on behalf of the Claimant.
Ms J. Smyth and Mr Y. Vanderman (instructed by Government Legal Department) appeared on behalf of the Defendant.
( )
This is the judgement of the court to which both members of the court have contributed.
Introduction.
This is a ‘rolled-up hearing’ pursuant to the directions of Julian Knowles J dated 17 April 2020. The hearing was initially listed for 12 May but it became apparent that it would not be feasible for it to take place then and so, on 5 May, this Court adjourned the hearing until today, 19 May, and made further directions for the filing of skeleton arguments, evidence and bundles. In those circumstances, and since the Defendant was asked by the Court to take part in these proceedings, we consider that it is unnecessary for him to request permission to appear, although as a matter of courtesy he has requested permission should it be necessary. We are grateful to all those concerned for the preparation which has gone into this case in what are inevitably difficult circumstances at present. We are particularly grateful to counsel for their submissions.
Since this is a rolled-up hearing the first question for the Court to determine is whether to grant permission to bring a claim for judicial review. The second stage, if permission is granted, is to consider the substantive hearing of that claim for judicial review.
The subject of challenge is the Abortion Act 1967: ‘Approval of a Class of Places’ made by the Secretary of State on 30 March 2020 (to which we will refer as “the Approval” or “the Decision”). Among other things, this approves “the home of a pregnant woman” as being a place which is authorised for the purpose of section 1 of the Abortion Act 1967 (“the 1967 Act”). The Approval was made under sections 1(3) and (3A) of the 1967 Act, as amended. It is limited in its duration, until either the date when the temporary provisions of the Coronavirus Act 2020 expire or two years, whichever is earlier.
The issue of abortion raises questions of ethics and social policy on which many people have strongly held views, which are sometimes diametrically opposed and irreconcilable. Those questions are not for the courts to determine. The role of this Court, as always in judicial review proceedings, is to determine the lawfulness of the Secretary of State's decision, nothing else.
Material Legislation.
Two provisions of the Offences Against the Persons Act 1861 remain relevant. Section 58 makes it a criminal offence to administer drugs or use instruments to procure an abortion. It applies both to the pregnant woman herself and others, including doctors. Section 59 makes it a criminal offence, among other things, to supply drugs knowing that they are intended to be unlawfully used to procure the miscarriage of any woman.
Those provisions are now subject to the legalisation of abortion in the 1967 Act in defined circumstances. Section 1, which has the sidenote: “Medical termination of pregnancy”, provides:
“(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
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; 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.” (Emphasis added)
One of the requirements in section 1 of the 1967 Act is that any treatment for the termination of pregnancy must be carried out either in a type of hospital which is there specified or “in a place approved for the purposes of this section by the Secretary of State”: see subsection (3).
An amendment was made to section 1 of the 1967 Act by the Human Fertilisation and Embryology Act 1990 to insert subsection (3A), which provides that the power to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, “to approve a class of places”.
Background.
At the time that the 1967 Act was enacted, termination of pregnancy usually required surgical procedures. Since then things have moved on, particularly in relation to the period of the first 10 weeks of pregnancy, when the treatment given is usually “early medical abortion”. This is described as follows in the witness statement of Andrea Duncan filed on behalf of the Defendant, at para. 15:
“Early medical abortion (‘EMA’) involves taking two different tablets, Mifepristone and Misoprostol, which are most effective with a time gap between taking the first and second pill of 24–48 hours.”
The power to approve a class of places in section 1(3A) of the 1967 Act was first used in respect of England on 27 December 2018, when the Secretary of State approved “the home of a pregnant woman” as a class of places where the drug Misoprostol can be administered, provided that the woman has already attended an appointment with a doctor at an approved place and has taken the other drug, Mifepristone, at that place.
That Approval has now been superseded by the decision under challenge. The material change which was made by the approval of 30 March 2020 is to permit the taking of the first drug, Mifepristone, also in the home of a pregnant woman.
The Decision under Challenge.
After setting out certain definitions in para. 1, the Approval states as follows:
“2. The home of a registered medical practitioner is approved as a class of place for treatment for the termination of pregnancy for the purposes only of prescribing the medicines known as Mifepristone and Misoprostol to be used in treatment carried out in the manner specified in paragraph 4.
3. The home of a pregnant woman who is undergoing treatment for the purposes of termination of her pregnancy is approved as a class of place where the treatment for termination of pregnancy may be carried out where that treatment is carried out in the manner specified in paragraph 4.”
The Approval continues:
“4. The treatment must be carried out in the following manner
a) the pregnant woman has
i) attended an approved place;
ii) had a consultation with an approved place via video link, telephone conference or other electronic means, or
iii) had a consultation with a registered medical practitioner via video link, telephone conference or other electronic means; and
b) the pregnant woman is prescribed Mifepristone and Misoprostol to be taken for the purposes of the termination of her pregnancy and the gestation of the pregnancy has not exceeded nine weeks and six days at the time the Mifepristone is taken.”
The circumstances leading up to the Decision.
As is well known, this country is currently facing a public health emergency arising from the global Covid-19 pandemic. To meet that emergency Parliament has enacted the Coronavirus Act 2020 (“the 2020 Act”). The measure under challenge in the present case was not, however, made by or under the 2020 Act. It was made under the 1967 Act, as amended in 1990.
The circumstances in which the Decision under challenge was taken are set out in the witness statement of Andrea Duncan, at paras. 23–31; and 39–53. They can be summarised as follows.
From early March 2020, providers of abortion services began to make clear concerns about how the pandemic would affect their services. Even at this early stage, they were seeking an approval in the same terms as those eventually made in the Decision.
On 19 March, following a Ministerial Submission on 18 March, the Minister of Health for Care agreed that an approval be granted. Officials believed that the Secretary of State also agreed and the Approval was published on the UK Government website on 23 March.
On the evening of 23 March, the Prime Minister made a televised statement to the nation, which announced what has become known as the “lockdown”, urging people to stay at home...
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