The Queen (on the Application of Christian Concern) v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Phillips,Lady Justice King |
| Judgment Date | 25 September 2020 |
| Neutral Citation | [2020] EWCA Civ 1239 |
| Date | 25 September 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2020/0822 |
[2020] EWCA Civ 1239
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
LORD JUSTICE SINGH AND MR JUSTICE CHAMBERLAIN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King DBE
Lady Justice Nicola Davies DBE
and
Lord Justice Phillips
Case No: C1/2020/0822
Michael Phillips (instructed by Andrew Storch Solicitors) for the Appellant
Julia Smyth and Yaaser Vanderman (instructed by Government Legal Department) for the Respondent
Hearing date: 29 July 2020
Approved Judgment
Introduction
In proceedings for judicial review the appellant challenges the “Approval of a Class of Places” within the Abortion Act 1967 as amended (“the 1967 Act”) made by the Secretary of State on 30 March 2020 (“the Approval” or “the Decision”). This approves the “home of a pregnant woman” as being a place which is authorised for the purpose of section 1 of the 1967 Act where the treatment for early medical abortion (“EMA”) may be carried out. The Approval was made under sections 1(3) and (3A) of the 1967 Act. It is time limited until either the date when the temporary provisions of the Coronavirus Act 2020 expire or two years, whichever is the earlier.
On 19 May 2020, the Divisional Court, Singh LJ and Chamberlain J, in a judgment of the court, refused permission to bring a claim for judicial review.
At the hearing the appellant sought permission to appeal on eight grounds. Lewison LJ granted permission to appeal on grounds 5 and 6, namely:
Ground 5: The Decision is ultra vires section 1 of the 1967 Act in that:
a) The Divisional Court erred in its analysis of “terminated by a registered practitioner” in section 1(1) of the 1967 Act;
b) The Divisional Court erred in refusing to admit evidence pursuant to Pepper v Hart [1993] AC 593;
c) The Divisional Court erred in its analysis of the Hansard record.
Ground 6: The Decision is contrary to the legislative purpose of the 1967 Act ( Padfield v Minister of Agriculture [1968] AC 997):
a) The Divisional Court erred in holding that the Decision was consistent with the legislative purpose to ensure that abortions are carried out with proper skill and in hygienic conditions;
b) Evidence is admissible pursuant to Pepper v Hart to ascertain the legislative purpose of section 1(3A), and shows that the power was conferred on the Secretary of State to enable a designation of safe and hygienic places such as GP surgeries, and expressly not of “home”. The Divisional Court failed to consider the Hansard record in the context of the Padfield argument.
Application to adduce further evidence
At the hearing the appellant sought permission pursuant to CPR 54.16 to adduce further evidence in the form of witness statements from Kevin Duffy dated respectively 18 May 2020 and 17 July 2020 together with exhibits and a second witness statement of Dr Greg Gardner. The application was refused, with reasons to be given in this judgment.
The first witness statement of Kevin Duffy and the second witness statement of Dr Gardner
These statements were served one day before the Divisional Court hearing. In the application before this court the appellant notes that the statements were referred to in the judgment of the Divisional Court at [65] and [30] respectively. The reference to the statement of Mr Duffy at [65] of the judgment was in respect of ground 3 of the original grounds of appeal, which is not pursued at this hearing. At [30] the court correctly noted that the expert whose evidence was filed on behalf of the respondent fundamentally disagreed with the opinions of Dr Gardner. The court correctly stated that its only function was to adjudicate on the lawfulness of the decision under challenge and the fact that Dr Gardner and others may disagree with the views of the respondent's experts or external bodies was immaterial in the context of judicial review proceedings. Accordingly, there are no grounds upon which to admit these statements of Mr Duffy or Dr Gardner.
Second witness statement of Kevin Duffy and its exhibits
The exhibits contain: (a) evidence of a mystery shopper survey of the abortion providers' “Pill by Post” service which was organised by Mr Duffy in June 2020; (b) an internal NHS email dated 21 May 2020 which highlights the Care Quality Commission's concerns about the “escalating risks” associated with “Pills by Post” giving examples of incidents which are said to have led to patients' deaths in May 2020.
The application notice is dated 20 July 2020, this hearing took place on 29 July 2020. Mr Duffy describes the survey as mystery shopping which “involves subterfuge and the obtaining of information under false pretences”. The service provider and the provider organisations had no knowledge of this survey. Mr Duffy describes this as being in contravention of ethical norms in medical research. Women were asked to make 19 sets of calls to providers in June and July 2020. Each woman provided false information as to being pregnant, the date of her last period, her name, date of birth and contact details. False registration data was given when details of her GP surgery was requested. The only truthful data provided was the address to which the abortion pills should be posted.
This was a covert exercise performed under a false premise and using false information. No control group exists. Neither the court nor the respondent is in a position to explore, still less assess, the validity of the information which this survey purports to provide. The late service and inherent unfairness of this “survey” provide no grounds upon which to admit this evidence.
The email of 21 May 2020 from a regional chief midwife identifies feedback from a CMO about issues linked to the Pills by Post termination service. Thirteen incidents are noted. The email recognises the seriousness of the incidents. As a result, the decision has been made to keep the process under review and report any incidents to the regional chief midwife. The seriousness of a relatively small number of incidents has been acknowledged and acted upon. The court does not minimise the seriousness of any incident but of itself this email takes the issues in this appeal no further.
The background
The 1967 Act sets out the legal framework under which abortions can be performed in England and Wales. Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence to administer drugs or use instruments to procure an abortion. Section 59 of the same Act makes the supply of drugs, knowing that they are intended to be unlawfully used to procure the miscarriage of any woman, a criminal offence.
Section 1 of the 1967 Act states:
“(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
…
(3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006 or the National Health Service (Scotland) Act 1978 or in a hospital vested in …a National Health Service trust or an NHS foundation trust or in a place approved for the purposes of this section by the Secretary of State.
(3A) The power under subsection (3) of this section 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.
(4) Subsection (3) of this section, and so much of subsection (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.”
Section 1(3A) is an amendment which was made pursuant to section 37(3) of the Human Fertilisation and Embryology Act 1990.
In accordance with section 1(3) of the 1967 Act, all independent sector clinics wishing to perform termination of pregnancy must be approved by the Secretary of State for Health and Social Care. The Secretary of State's approval is conditional upon the provider's compliance with the 1967 Act, the Health and Social Care Act 2008 and the Department of Health's “Required Standard Operating Procedures”. Failure to comply with the procedures can lead to withdrawal of approval. The termination of pregnancy is a regulated activity within the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. All providers of regulated activities must be registered with the Care Quality Commission (“CQC”).
When the 1967...
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