R v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance)

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOFFMANN,LORD MILLETT,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date16 February 2005
Neutral Citation[2003] UKHL 13
Date16 February 2005
CourtHouse of Lords
Regina
and
Secretary of State for Health
(Respondent)
ex parte Quintavalle
(on behalf of Pro-Life Alliance) (Appellant)

[2003] UKHL 13

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hoffmann

Lord Millett

Lord Scott of Foscote

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

1

The issues in this appeal are whether live human embryos created by cell nuclear replacement (CNR) fall outside the regulatory scope of the Human Fertilisation and Embryology Act 1990 and whether licensing the creation of such embryos is prohibited by section 3(3)(d) of that Act. Crane J at first instance held that such creation fell outside the scope of the Act and was not prohibited by section 3(3)(d): [2001] 4 All ER 1013; [2001] EWHC Admin 918. The Court of Appeal (Lord Phillips of Worth Matravers MR, Thorpe and Buxton LJJ) agreed with the judge on the second point but reversed his ruling on the first: [2002] QB 628; [2002] EWCA Civ 29. Both points were re-argued before the House.

2

This case is not concerned with embryos created in the ordinary way as a result of sexual intercourse. Nor is it directly concerned with the creation of live human embryos in vitro where the female egg is fertilised by the introduction of male sperm outside the body. CNR, a very recent scientific technique, involves neither of those things. In the Court of Appeal and in the House the parties were content to adopt the clear and succinct explanation given by the judge of what CNR means and involves ( [2001] 4 All ER 1013, 1016):

"13. In the ovary the egg is a diploid germ (or reproductive) cell. It is described as 'diploid' because its nucleus contains a full set of 46 chromosomes. By the process of meiotic division the nucleus divides into two parts. Only one of these, a pronucleus containing only 23 chromosomes (described as 'haploid'), plays any further part in the process. Fertilisation begins when the male germ cell, the sperm, whose pronucleus contains 23 chromosomes, meets the haploid female germ cell and is a continuous process taking up to 24 hours. As part of the process the male and female pronuclei fuse to form one nucleus with a full complement of 46 chromosomes, a process known as syngamy. The one-cell structure that exists following syngamy is the zygote. After several hours the cell divides to create a two-cell zygote. At this stage it is generally referred to as an embryo. At about 15 days after fertilisation a heaping-up of cells occurs which is described as the 'primitive streak'. 14. Fertilisation may of course take place in the normal way or in vitro. 15. CNR is a process by which the nucleus, which is diploid, from one cell is transplanted into an unfertilised egg, from which … the nucleus has been removed. The [replacement] nucleus is derived from either an embryonic or a foetal or an adult cell. The cell is then treated to encourage it to grow and divide, forming first a two-cell structure and then developing in a similar way to an ordinary embryo. 16. CNR is a form of cloning. Clones are organisms that are genetically identical to each other. When CNR is used, if the embryo develops into a live individual, that individual is genetically identical to the nucleus transplanted into the egg. There are other methods of cloning, for example, embryo splitting, which may occur naturally or be encouraged. Identical twins are the result of embryo splitting. 17. The famous Dolly the sheep was produced by CNR. Live young have since been produced by CNR in some other mammals. It has not yet been attempted in humans. 18…. CNR of the kind under consideration does not … involve fertilisation."

The Act

3

The 1990 Act was passed "to make provision in connection with human embryos and any subsequent development of such embryos; to prohibit certain practices in connection with embryos and gametes; to establish a Human Fertilisation and Embryology Authority", and for other purposes. The sections at the heart of this appeal are sections 1 and 3, which I should quote in full:

"Principal terms used

1.(1) In this Act, except where otherwise stated -

  • (a) embryo means a live human embryo where fertilisation is complete, and

  • (b) references to an embryo include an egg in the process of fertilisation,

and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote.

(2) This Act, so far as it governs bringing about the creation of an embryo, applies only to bringing about the creation of an embryo outside the human body; and in this Act -

(a) references to embryos the creation of which was brought about in vitro (in their application to those where fertilisation is complete) are to those where fertilisation began outside the human body whether or not it was completed there, and

(b) references to embryos taken from a woman do not include embryos whose creation was brought about in vitro.

(3) This Act, so far as it governs the keeping or use of an embryo, applies only to keeping or using an embryo outside the human body.

(4) References in this Act to gametes, eggs or sperm, except where otherwise stated, are to live human gametes, eggs or sperm but references below in this Act to gametes or eggs do not include eggs in the process of fertilisation.

3.(1) No person shall -

  • (a) bring about the creation of an embryo, or

  • (b) keep or use an embryo,

except in pursuance of a licence.

(2) No person shall place in a woman -

  • (a) a live embryo other than a human embryo, or

  • (b) any live gametes other than human gametes.

(3) A licence cannot authorise -

  • (a) keeping or using an embryo after the appearance of the primitive streak,

  • (b) placing an embryo in any animal,

  • (c) keeping or using an embryo in any circumstances in which regulations prohibit its keeping or use, or

(d) replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo.

(4) For the purposes of subsection (3)(a) above, the primitive streak is to be taken to have appeared in an embryo not later than the end of the period of 14 days beginning with the day when the gametes are mixed, not counting any time during which the embryo is stored."

4

The Act imposes three levels of control. The highest is that contained in the Act itself. As is apparent, for example from section 3(2) and (3), the Act prohibits certain activities absolutely, a prohibition fortified by a potential penalty of up to ten years' imprisonment (section 41(1)). The next level of control is provided by the Secretary of State, who is empowered to make regulations for certain purposes subject (so far as relevant here) to an affirmative resolution of both Houses of Parliament (section 45(1), (4)). Pursuant to section 3(3)(c) the Secretary of State may make regulations prohibiting the keeping or use of an embryo in specified circumstances. The third level of control is that exercised by the Authority. Section 3(1) prohibits the creation, keeping or use of an embryo except in pursuance of a licence, and the Act contains very detailed provisions governing the grant, revocation and suspension of licences and the conditions to which they may be subject: see, among other references, sections 11-22 of and Schedule 2 to the Act. A power is also conferred on the Authority to give binding directions: sections 23-24.

5

The first argument of the Alliance is squarely based on the wording of section 1(1)(a) of the Act, fortified by that of subsection (1)(b). It hinges on the words "where fertilisation is complete". That makes clear, it is argued, that the live human embryos to which the Act applies are such embryos as are the product of fertilisation, for the obvious reason that if there is no fertilisation there can be no time when fertilisation is complete (and there is never an egg in the process of fertilisation). Therefore the Act does not apply to embryos created by CNR, unsurprisingly since in 1990 the creation of live human embryos was unknown to Parliament. The second argument of the Alliance is put as an alternative: if embryos created by CNR are, contrary to the first argument, embryos within the scope of the Act, then the CNR process is specifically prohibited by section 3(3)(d) and cannot be licensed.

The approach to interpretation

6

By the end of the hearing it appeared that the parties were divided less on the principles governing interpretation than on their application to the present case. Since, however, the Court of Appeal were said to have erred in their approach to construction, it is necessary to address this aspect, if relatively briefly.

7

Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which is clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which reach the courts, or at any rate the appellate courts. Where parties expend substantial resources arguing about the effect of a statutory provision it is usually because the provision is, or is said to be, capable of bearing two or more different meanings, or to be of doubtful application to the particular case which has now arisen, perhaps because the statutory language is said to be inapt to apply to it, sometimes because the situation which has arisen is one which the draftsman could not have foreseen and for which he has accordingly made no express provision.

8

The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel...

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