Heidi Crowter and Anor, R (on the application of) v The Secretary of State for Health and Social Care

The starting-point for the Appellants’ case that section 1 (1) (d) interferes with their article 8 rights is to be found in the decision of the Grand Chamber of the ECtHR in Aksu v Turkey, app no. 4149/04, [2012] ECHR 445. The applicant in that case was of Roma origin. He made two applications. In the first he complained about passages in an academic work called The Gypsies of Turkey which he said expressed negative stereotypes about Roma people. It was his case, as summarised by the Court at para. 17 of its judgment, that the author depicted Roma people as “engaged in illegal activities, [living] as ‘thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers’ and … polygamist and aggressive”. In the second he complained of the definitions of the Turkish word çingene (“gypsy”) in two dictionaries which included a pejorative sense of “miserly”. He claimed that the promulgation of those stereotypes infringed his right to a private life. He brought proceedings in the Turkish courts, but his claim was dismissed.

The ultimate decision of the ECtHR in Aksu was that there had been no violation of the applicant’s article 8 rights in either case. In the case of the first application it held that the Turkish court had been entitled to find that his characterisation of what the book said about gypsies was inaccurate (see paras. 69-70 of the judgment) and in the case of the second that it had been entitled to find that the dictionaries were legitimately performing their role of recording language as actually used (paras. 84-86). But the Appellants rely on what the Court said at para. 58 of its decision about the applicability of article 8 in such a case. The passage reads:

“The Court reiterates that the notion of ‘private life’ within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, 4 December 2008, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.”

That approach was subsequently applied by the ECtHR in Lewit v Austria, app. no. 4782/18, [2019] ECHR 719: see para. 46 of the Court’s judgment. In that case a survivor of the Mauthausen concentration camp complained about an article in a right-wing journal in Austria about the conduct of survivors in the aftermath of their release in 1945: they were described as “robbing and plundering, murdering and defiling” and as criminals who “plagued” the surrounding country. No remedy was available to the applicant under Austrian law. The Court held that his article 8 rights had been infringed.

The Appellants say that, although the ECtHR was in those cases concerned with different social groups, the principle stated in them is applicable to cases of disability, which is equally an aspect of a person’s “physical and social identity”. Accordingly, negative stereotyping (of a sufficiently serious degree) of those with Down’s syndrome, or other serious disabilities, will interfere with their private lives if and to the extent that it impacts on their “feelings of self-worth and self-confidence”.

Although we are not strictly bound by decisions of the ECtHR I have no difficulty accepting the general proposition which Mr Coppel derives from Aksu or that it is applicable in principle to those with serious disabilities. However, it does not follow that such an interference occurred in this case: I return to that question below. It should be noted that the reasoning in Aksu is concerned with what I have called the direct impact of the negative stereotypes in question rather than on any societal impact that they might have, leading to discriminatory behaviour by third parties.

The evidence to which Mr Coppel referred us as establishing that the Appellants’ article 8 rights had been interfered with by the provisions of section 1 (1) (d) was essentially of four kinds, which I will consider in turn.

First, he relied on the evidence of Mrs Carter and her mother and of Ms Lea-Wilson. At para. 16 of her witness statement Mrs Carter says that the different approach to abortion in the case of a foetus diagnosed with Down’s is discriminatory and unfair. She continues:

“I find it very offensive and hurtful. It says that people like me are not wanted and are not valued as much as normal people. I am sure people would be very upset if girls could be aborted up to birth but not boys. It’s the same for Downs Syndrome. Why should we be treated differently? I want people with Downs Syndrome to have the same rights as normal people. I want our law to say that. At the moment our abortion law says that people with Downs Syndrome have less value. This is not just about having a job or a flat. It is about being able to live. It is the most important thing.”

At para. 5 of her witness statement her mother, Elizabeth Crowter, says:

“The abortion law does convey the message that Down’s Syndrome is something to be fearful of and to be avoided. I find that deeply offensive and have found that my life and that of my family has been enriched by the unique personality that Heidi is. Her accepting, loving, kind and courageous nature speak of the better qualities that we can show each other as human beings.”

As for Ms Lea-Wilson, she says at para. 30 of her witness statement that her experience in the last two weeks of her pregnancy have caused to her worry that if he needs treatment in the future his care may be treated as a lesser priority

“… because of the law and the clear message it sends to me about my son. This law says he is of lesser value.”

On a narrow view the evidence of Mrs Crowter and Ms Lea-Wilson is not directly relevant, since they only speak to the impact of section 1 (1) (d) on them, and they are not parties. But it is nevertheless right to take it into account: if parents of children with Down’s feel as they do about the message sent by section 1 (1) (d), that is evidence of how people with Down’s – including Aidan when he becomes old enough – may feel. (I will accordingly in this judgment refer to the message perceived by “the Appellants”, rather than simply by Mrs Carter.)

Second, Mr Coppel referred us to the witness statement of Lord Shinkwin, who was himself born severely disabled and is a leading campaigner for the rights of the disabled: I have already referred to his attempts to promote legislation amending section 1 (1) (d). He says, at para. 3:

“For me, as a severely disabled person, section 1(1)(d) drives a coach and horses through everything Parliament professes to believe in concerning disability equality. Its continued application and indeed active promotion stigmatise disabled human beings before we are even born because its specific purpose is precisely to prevent us from being born … We are life unworthy of life.”

Lord Shinkwin made the same point in introducing his bill in the House of Lords, as did several of the Parliamentarians who opposed the provisions of section 1 (1) (d) on that occasion or when it was first introduced in 1990.

Third, he relied on academic research. In his oral submissions he referred us in particular to the evidence of Professor Scior, who is Professor of Clinical Psychology and Stigma Studies at University College London. At para. 5 of her witness statement she says, having summarised the terms of section 1 (1) (d):

“The existence of such a legal provision powerfully communicates a message that the lives of persons with conditions such as Down’s syndrome are ‘not worth living’. In doing so, s. 1 (1) (d) promotes stigmatising attitudes towards people with (intellectual) disabilities ... on the basis of my extensive research on public attitudes to people with intellectual disabilities, it is my view that institutional stigma, such as that inherent in legislation, has a powerful role to play in either countering or promoting and maintaining negative stereotypes, prejudice and discrimination, the latter being the case for s. 1 (1) (d).”

That conclusion focuses on the “societal impact” case – that is, that section 1 (1) (d) promotes and maintains negative stereotypes in society which can lead to discriminatory treatment. She addresses direct impact in para. 6, where she summarises the conclusions of a recent literature review addressing the questions of whether people with intellectual disabilities are aware of negative messages and attitudes about them and whether they perceive them to be demeaning. The conclusion was that most, though not all, were aware of their diagnosis, or in any event that they were “different”, and that that led to negative perceptions by others, and that they could experience discomfort or shame, embarrassment or dejection when discussing the topic. It should be noted that that conclusion is not concerned with the subjects’ perception of the message sent by section 1 (1) (d).

The impact on people with Down’s of knowledge of the current state of the law is rather more directly considered by the evidence of Professor Hastings, Professor in Education and Psychology at the University of Warwick and Monash Warwick Professor at the Department of Psychiatry at Monash University. He described research which he had conducted into the views of a group of adults with Down’s syndrome about pre-natal testing. The study showed that most of the group were aware of pre-natal testing and that most of those who were aware of it were saddened and disappointed that some mothers underwent termination if the foetus was diagnosed with Down’s, though they respected their right to choose. At para. 7 of his witness statement he says:

“The analysis of data from these pieces of research shows that negative societal discourses surrounding disability, decisions to carry out pre-natal tests, and decisions taken to terminate following testing have a direct or indirect impact or individuals with Down syndrome on an emotional level. We cannot be sure that these effects are present for all individuals with Down syndrome, but it is clear that the self-concept and mental well-being of at least some people with Down Syndrome is negatively affected.”

Fourth, Mr Coppel referred us to a witness statement from Jackie O’Sullivan, the Executive Director of Communication, Advocacy and Activism for the Royal Mencap Society (“Mencap”), filed for the purpose of this appeal without objection from the Secretary of State. This takes issue with a statement at para. 102 of the judgment of the Divisional Court (see para. 79 below) to the effect that section 1 (1) (d) does not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities. Ms O’Sullivan makes a number of points about societal attitudes to people with learning disabilities generally and to those with Down’s in particular. As regards section 1 (1) (d), her criticisms are directed to the statutory language, and in particular to the use of the terms “handicap”, “risk”, “suffer” and “physical or mental abnormalities”, which she describes as “[perpetuating] negative stereotypes of disabled persons”. She says, at para. 15:

“In Mencap’s view, s. 1 (1) (d) of the Abortion Act 1967 stands out as an offensive anachronistic anomaly in the legislative landscape. It conveys the powerful message that a life with a disability is a lesser life, even a life not worth living. It should have no place in a modern inclusive society that values all people.”

The evidence adduced by the Appellants contains some other material to essentially the same effect, for example from Professor Clarke, but it is sufficient to proceed on the basis of the evidence to which Mr Coppel specifically referred us.

I have no difficulty accepting the evidence of Mrs Carter and her mother and of Ms Lea-Wilson that they find it offensive and hurtful that the law permits the unrestricted abortion of foetuses who are at risk of being born with serious disabilities, and that they see it as conveying a message that the lives of disabled people are of lesser value. I would likewise accept the evidence of Lord Shinkwin to essentially the same effect. In other words, the evidence establishes that their perception of the message sent by section 1 (1) (d) has a direct impact on their feelings.

I would also accept that a similar impact is likely to be felt by other people with Down’s or other serious disabilities. That is a common sense conclusion, but it also finds some support in Professor Hastings’ evidence. On the other hand, not every seriously disabled person will feel the same way. The evidence does not provide any basis for an estimate of how many seriously disabled people are aware that the law permits abortion after 24 weeks on the grounds of serious disability: it certainly cannot be assumed that most are. But, even among those who are so aware, it is not to be expected that everyone will feel devalued: different people have different temperaments and different perceptions. That too receives some support from Professor Hastings’ findings.

I would not, however, accept that the opinions of Professor Scior or Ms O’Sullivan establish that section 1 (1) (d) plays any significant role in causing discriminatory attitudes against disabled people generally, or those with Down’s in particular. Their evidence is expressed in very general terms and is not based on identified research addressing this specific issue. Prejudices against disabled people have sadly been prevalent throughout history, and it seems rather unreal to attribute a significant effect to a recent legislative provision which most people rarely encounter and whose full extent few will appreciate. (Footnote: ⁷) No doubt it might be said that section 1 (1) (d) reflects long-established prejudices, but that is a very different matter from it causing or substantially contributing to them.

Mr Coppel submitted that if there were any doubt about the application of article 8 it should be resolved in the Appellants’ favour in order to ensure compliance with the UN Convention on the Rights of Persons with Disabilities (“the CRPD”), to which the United Kingdom is a party. In this regard he relied on recommendations made by the UN Committee on the Rights of Persons with Disabilities (“the CRPD Committee”), which is the body responsible for monitoring compliance by States parties with their obligations under the CRPD; and on what he said was the approval of those recommendations expressed by both Horner J and the Supreme Court in the NIHRC case.

Article 5 of the CRPD requires States parties to prohibit all discrimination on the basis of disability; and article 35 requires them to submit periodic reports to the Committee. In its “Concluding Observations”, dated 3 October 2017, on the initial report submitted by the UK under article 35, the CRPD Committee said, at paras. 12-13:

“12.

The Committee is concerned about perceptions in society that stigmatize persons with disabilities as living a life of less value than that of others and about the termination of pregnancy at any stage on the basis of fetal impairment.

13.

The Committee recommends that the State party amend its abortion law accordingly. Women’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortion on the ground of fetal deficiency.”

The “abortion law” referred to is evidently section 1 (1) (d). The Committee has likewise recommended the abolition of legislation in three other states – Spain, Austria and Hungary – which permits abortion on a differential basis in the case of a foetus with disabilities.

When the NIHRC case was before Horner J the recommendation of the CRPD Committee as regards the UK had not yet been made, but its attitude was already known because of its recommendations as regards other countries. Mr Coppel drew our attention to his conclusion at para. 69 of his judgment, following a review of the international materials, that:

“There is … surely an illogicality in calling for no discrimination against those children who are born suffering from disabilities such as Down’s Syndrome or spina bifida on the basis that they should be entitled to enjoy a full life but then permitting selective abortion so as to prevent those children with such disabilities being born in the first place. This smacks of eugenics.”

Mr Coppel also relied on the opinion of the majority in the Supreme Court that, while article 8 required that women be entitled to have access to abortion where they were carrying a child with an FFA, it did not require such access in the case of SMF. He referred in particular to the judgment of Lord Mance, who said, at para. 133:

“… [I]n principle a disabled child should be treated as having exactly the same worth in human terms as a non-disabled child … . This is also the consistent theme of the United Nations Committee on the Rights of Persons with Disabilities, expressing concerns about the stigmatising of persons with disabilities as living a life of less value than that of others, and about the termination of pregnancy at any stage on the basis of foetal abnormality, and recommending States to amend their abortion laws accordingly (CRPD/C/GBR/CO/1 (Footnote: ⁸)). If this embraces fatal foetal abnormality, I cannot go so far. But, in relation to disability, I consider that the Committee has a powerful point.”

Lord Kerr, with whom Lord Wilson agreed, made similar observations at paras. 331-332 of his judgment, likewise referring to the CRPD Committee’s recommendations.

In this context I need also to refer to the position of the UN Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”), which performs a function under the UN Convention on the Elimination of All Forms of Discrimination against Women (to which the United Kingdom is also a party) similar to that performed by the CRPD Committee under the CPRD. The CEDAW Committee has consistently recommended that States parties should permit women to undergo abortions in certain circumstances. In “Concluding Observations” concerning the UK dated 30 November 2013, it recommended that the Northern Ireland abortion legislation should be changed so as to permit abortion in circumstances such as rape, incest and “serious malformation of the foetus”.

There was, as Lady Hale notes at paras. 29-30 of her judgment in the NIHRC case, obviously some tension between that position and that of the CRPD Committee. On 6 March 2018 the CEDAW Committee published the report of an inquiry into the state of abortion law in Northern Ireland. Although section 1 (1) (d) was not directly in issue, at para. 62 of the report it said:

“In cases of severe fetal impairment, the Committee aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from negative stereotypes and prejudices towards women and persons with disabilities. While the Committee consistently recommends that abortion on the ground of severe fetal impairment be made available to facilitate reproductive choice and autonomy, States parties are obligated to ensure that women’s decisions to terminate pregnancies on that ground do not perpetuate stereotypes towards persons with disabilities. Such measures should include the provision of appropriate social and financial support for women who choose to carry such pregnancies to term.”

That passage requires to be read with a little care. Although the Committee condemns “disability-selective” abortions, it nevertheless reiterates its support for abortion on the ground of “severe fetal impairment”, which is a wider category than fatal foetal abnormality. Those positions are only reconcilable on the basis that its condemnation of disability-selective abortion is limited to cases where the disability in question falls short of severe fetal impairment.

The CEDAW Committee was not of course concerned as such with article 8, any more than the CRPD Committee was: it was considering its own Convention, not the Human Rights Convention. Nevertheless its position that there should be a right to abortion in cases of severe fetal impairment does not sit easily with the position taken by the majority of the Supreme Court in the NIHRC case, namely that the article 8 rights of women did not positively require an exception to the prohibition of abortion in such cases. At para. 31 of her judgment Lady Hale said:

“Some may think that the CEDAW Committee’s recommendations strike the right balance, but I recognise and understand that others may think that they do not give sufficient weight to the valuable and rewarding lives led by many people with serious disabilities.”

It is to be noted that, while Lady Hale’s conclusion is that the article 8 rights of women did not positively require that the law permit abortion in the case of severe fetal impairment, as the CEDAW Committee recommended, she recognises that the question whether it should nevertheless do so involved the striking of a balance between different interests and was one on which views could reasonably differ.

I should also mention for completeness that, when a private member’s bill was introduced in the Northern Ireland Assembly in February 2021 seeking to remove the provision of the 2020 Regulations which is equivalent to section 1 (1) (d) of the 1967 Act, the NIHRC gave formal advice to the Assembly about whether the bill was compliant with human rights. Its advice was that the “the Bill’s proposal to remove access to abortion in circumstances of serious foetal impairment is incompatible with the UK’s obligations under the UN CEDAW”. In that connection it referred to a joint statement by the CEDAW and CRPD Committees dated 29 August 2018 entitled Guaranteeing sexual and reproductive health and rights for all women, in particular women with disabilities. It believed that the joint statement confirmed CEDAW’s previously stated position, but it acknowledged that it “has not provided complete clarity”. That is a fair comment, and I agree with the observation of the Divisional Court in para. 47 of its judgment that “the wording of the joint statement appears to be a compromise between two positions [sc. the previous statements of the CRPD and CEDAW Committees] which are on their face difficult to reconcile”. No doubt for that reason neither counsel placed any reliance on it before us.

I have referred to this material in some detail because of the importance attached to it by Mr Coppel. I am not convinced that it is as central to the argument as he submits, but to the extent that it is relevant I would accept Ms Smyth’s submission that it needs to be viewed with circumspection because:

Mr Coppel’s case in law was founded on the decision of the ECtHR in Aksu. As I have noted, that decision was based squarely on the direct impact of the publications concerned on the applicant’s own feelings of identity and self-worth; and this was very much the focus of the oral argument before us. I will accordingly not at this stage address the pleaded reliance on societal impact, though I will return to it when I consider the reasoning of the Divisional Court.

My starting-point is that in both Aksu (Footnote: ⁹) and Lewit the negative stereotype in question applied directly to the group to which the applicant belonged – Roma people and Mauthausen survivors – and their value as members of society was thereby directly impugned. The present case is different. Section 1 (1) (d) is not concerned with the group to which the Appellants belong – that is, those born with serious disabilities – and does not explicitly promote any negative stereotype about them: it is concerned only with the unborn.

The Appellants do not accept that that undermines their case. They say, as we have seen, that a law permitting the abortion of foetuses which are expected to be born with a serious handicap “sends the message” that the lives of those who are in fact born with such a handicap are of lesser value: it thus clearly, even if implicitly, disseminates a negative stereotype about the living disabled.

As I have already said, I accept that the Appellants, and no doubt many other seriously disabled people, genuinely perceive that section 1 (1) (d) sends such a message; and from their perspective I find that perception understandable. However, that is not the only possible perspective. Others draw a clear line at the moment of birth and deny that permitting the abortion of a foetus with a serious disability implies anything about the value of the lives of the living disabled. That point was made explicitly, and with evident sincerity, by those promoting or defending section 1 (1) (d) in the Parliamentary debates: see para. 15 above. The CEDAW Committee likewise evidently regarded its position as consistent with “not perpetuat[ing] stereotypes towards persons with disabilities”. The truth is that whether section 1 (1) (d) is perceived as sending any negative message about the living disabled depends on the perspective – itself no doubt reflecting the circumstances and values – of the particular individual. Its terms cannot be equated with explicit or unequivocal statements of the character of “gypsies are criminals” or “concentration camp survivors behaved like bandits” such as were before the ECtHR in Aksu and Lewit.

I do not believe that in those circumstances the enactment of section 1 (1) (d) can be said to constitute an interference by the state with the private lives of the Appellants. Their perception, however genuine, that the present state of the law devalues them cannot itself constitute or evidence such an interference: the interference must derive from something in its terms or its effect which, applying an objective standard, unequivocally conveys that message. The existence of a legal right cannot depend solely on the subjective perception of the putative victim.

That is enough to decide this issue. But I would add that I believe that it would have very undesirable consequences if the perceived implications of a statement or measure, rather than its explicit or otherwise unequivocal meaning, could constitute an interference with article 8 rights. Most people belong to groups the membership of which is important to their sense of identity. Obvious examples apart from the present case are groups defined by gender, ethnicity, religion or sexual identity; but that is far from being an exhaustive list. It is not uncommon that measures or statements which do not on their face promulgate any negative stereotype about such groups may nevertheless be perceived by their members as having implications which devalue their identity or value: identity issues are notoriously sensitive. It would have a serious impact on public decision-taking and public debate, including the values of free speech protected by article 10, if perceptions of that kind were sufficient to constitute an interference with article 8 rights. No doubt, as Aksu makes clear, such an interference will only occur where any negative stereotyping is “of a sufficiently serious degree”; and the author of the measure or statement can always seek to establish justification under article 8.2. But neither point would diminish the chilling effect of potential liability to claims from persons relying not on what is actually said or done but on its perceived implications.

My reasoning does not depend on the fact that the Appellants’ objection is to the effect of a statutory provision, since it is not impossible to conceive of legislation which did directly and unequivocally promulgate a negative stereotype of the kind with which Aksu was concerned. But the fact that the Appellants are here complaining of what are said to be the implications of a law which is not on its face concerned with the living disabled at all illustrates the problems which would arise if the effect of article 8 were as extensive as they contend.

Finally, even if, contrary to my view, it were arguable that the protection conferred by article 8 should extend to protection from injury caused by the victim’s perception of an implicit negative stereotype, that would go well beyond what was decided by the ECtHR in Aksu and Lewit. It is well established that the domestic courts should not themselves seek to develop the effect of the Strasbourg jurisprudence: see, most recently, paras. 54-59 of the judgment of Lord Reed in AB affirming and explaining the so-called “Ullah principle”. That being so, we could not in any event find that section 1 (1) (d) was incompatible with the Appellants’ Convention rights on the basis contended for.

Peter Jackson LJ’s reasons for concluding that there was no interference with the Appellants’ article 8 rights differ from mine inasmuch as he relies on an assessment that the impact on them of section 1 (1) (d) does not reach the necessary threshold of seriousness: see para. 129 below. I should make clear that if my reasoning at paras. 72-74 above were unsound I would nevertheless reach the same conclusion for the reasons that he gives.

Having reached the conclusion that I have in the foregoing paragraphs, it is strictly unnecessary for me to refer to the reasoning of the Divisional Court. Nevertheless, it was the subject of criticism by the Appellants, and I think I should say something about it.

The Divisional Court’s conclusion on this issue appears at para. 107 of its judgment, where it says:

“In our judgement, section 1(1)(d) does not interfere with the Claimants’ Article 8 rights nor does it fall within the ambit of Article 8 for the purposes of Article 14. This is for the reasons we have set out at para. 102 above.”

Para. 102 of its judgment reads:

“We accept the Defendant’s submission that section 1(1)(d) does not interfere with the right to respect for private and family life of any of the Claimants. That legislative provision does not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities. We are not persuaded that there is any causal connection between this legislative provision, focused as it is on the rights of pregnant women and their medical treatment, and any discrimination that continues to be suffered by those with DS despite the extensive legislative provisions aimed at preventing such discrimination, in particular in the Equality Act 2010.”

The second sentence of para. 102 is in accordance with my own conclusion. However, as I understand it the Court’s reason for that conclusion is its finding about causation in the third sentence, and to that extent I must respectfully disagree. I have already said that I find the evidence that section 1 (1) (d) contributes to general societal discrimination against people with Down’s unconvincing, and the conclusion that it does not do so was in my view open to the Court. But that is not an answer to the Appellants’ case that it has a direct impact on their own sense of identity and self-worth. That case has to be addressed explicitly, as I have sought to do above.

That difference in our reasoning does not of course affect the fact that I believe that the Divisional Court came to the right conclusion on the substantive question. It is right to say that it had to deal with a much wider range of issues than we do, and it is likely to have had much less sustained argument on this particular issue.

For those reasons I would dismiss ground 1 and hold that section 1 (1) (d) of the 1967 Act does not interfere with the article 8 rights of the Appellants or of others with Down’s syndrome or other serious disabilities. It follows that it is unnecessary to deal with the other two grounds under article 8. However, given the importance of the case I think that I should do so.

“IN ACCORDANCE WITH THE LAW”

The jurisprudence about the nature of the requirement in article 8.2 that any interference with a person’s private or family life must be “in accordance with the law” is helpfully summarised in para. 55 of the judgment of this Courtin R (Bridges) v South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 5037. The Appellants rely on the propositions there set out that any legislative provision relied on as authorising such an interference must be foreseeable in its effects, should not “confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself” and “must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of the discretion conferred on the competent authorities and the manner of its exercise”. Mr Coppel submitted that in the present context a particularly high degree of legal precision is required because of the seriousness of a decision to end the life of a viable foetus, the sensitive and controversial nature of the issue, and the fact that the effect of section 1 (1) (d) is to sanction what would otherwise be a criminal offence.

The Appellants’ case on this aspect was carefully developed by Mr Coppel in a supplementary skeleton argument and in clearly-presented oral submissions. In short, they say that section 1 (1) (d) of the 1967 Act does not satisfy the requirements identified in Bridges because it is framed in such general terms. In particular, they complain that doctors are given no statutory guidance about the concepts of “substantial risk” and “serious handicap”, with the result that it is not sufficiently foreseeable to what kinds of disability it applies. Their overall point is that both phrases inevitably leave the necessary decision to the unfettered judgment of the responsible doctors. But Mr Coppel made some more specific points which can be summarised as follows:

Mr Coppel submitted that one consequence of those uncertainties was that it is in practice impossible to enforce compliance with the conditions, which is an essential element of a provision having the character of “law”, because it will in practice be impossible to establish that the decision of the doctors to rely on section 1 (1) (d) in the case of an evidently minor foetal abnormality did not nevertheless represent their good faith, even if mistaken, opinion that it constituted a “serious” handicap. He pointed out that in one case, albeit many years ago, a prosecutor had declined to prosecute a doctor who was said to have authorised the abortion of a foetus with a cleft palate (Footnote: ¹⁰), and that there had in fact been only one successful prosecution for performing an illegal abortion since the Act became law.

Both in the Divisional Court and before us Mr Coppel developed his submissions on this aspect by reference to chapter 3, entitled “Definition of substantial risk and serious handicap”, of the guidance produced by a working party of the Royal College of Obstetricians and Gynaecologists (“RCOG”) at the request of the Department of Health in 2010 entitled “Termination of Pregnancy for Foetal Abnormality in England, Scotland and Wales” (“the Guidance”). The relevant parts of that chapter are quoted in full by the Divisional Court at para. 19 of its judgment, and I need not reproduce them here. It is fair to say that the working party draws attention to the absence of statutory guidance on the two key phrases and identifies some at least of the particular ambiguities relied on by Mr Coppel; also that although it offers some guidance about the proper approach it cannot be said clearly to resolve those ambiguities. However, the chapter concludes:

“The Working Party sees little reason to change the current law regarding the definition of serious abnormality and concludes that it would be unrealistic to produce a definitive list of conditions that constitute serious handicap. Precise definition is impractical for two reasons. Firstly, sufficiently advanced diagnostic techniques capable of accurately defining abnormalities or of predicting the seriousness of outcomes are not currently available. Secondly, consequences of an abnormality are difficult to predict, not only for the foetus in terms of viability or residual disability but also in relation to the impact in childhood as well as on the family into which the child would be born.”

It follows from that conclusion that the working party did not regard the ambiguities relied on by Mr Coppel as likely to cause difficulties for doctors in arriving at a good faith opinion about the application of section 1 (1) (d). But Mr Coppel is entitled to say that this in itself does not necessarily meet his point about whether the subsection has the characteristics of “law” for the purpose of article 8.2.

Mr Coppel made it clear that it was not his case that in order to satisfy the “in accordance with the law” requirement the statute must provide for “a definitive list of conditions that constitute serious handicap” of the kind that the Guidance said would be impractical. That was a sensible concession, not least because the RCOG’s opposition to such a list was in line with the recommendation of the House of Commons Science and Technology Committee in 2007; and there was before the Divisional Court evidence to the same effect, which it accepted, from Professor Thilaganathan, Director of Fetal Medicine at St George’s University Hospitals NHS Trust. But Mr Coppel submitted that it was necessary for there to be statutory guidance which at least resolved the uncertainties about the meaning and effect of the statutory test identified at para. 84 above.

Mr Coppel referred us to the decision of the Grand Chamber of the ECtHR in A, B and C v Ireland, app no 25579/05, [2010] ECHR 2032. Irish law at the relevant time permitted an abortion only where, as held by a decision of the Irish Supreme Court, “it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, including a risk of self harm, which can only be avoided by a termination of the pregnancy”. Three women who had been unable to obtain abortions in Ireland on that basis complained of a breach of their article 8 rights. The complaint was upheld in one of the cases. At para. 253 of its judgment the Court expressed concern that “no criteria or procedures have been … laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application”. The Court left open the question whether that uncertainty could in principle be resolved by reference to guidance from a medical professional body because such guidance as there was did not provide “any relevant precision”. Mr Coppel submitted that those observations clearly applied to the current situation.

The Divisional Court addressed the Appellants’ case at paras. 109-112 of its judgment. Its reasons fall into two parts.

First, at paras. 109-110 the Court considered an observation of Sir George Baker P in Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 on which the Appellants had relied to the effect that “it would be quite impossible for the courts in any event to supervise the operation of the Abortion Act 1967”. Although it made a number of points about the context of Sir George’s observation, in substance it disagreed with it, saying that the criminal law was perfectly capable of being enforced and that the fact that there had only been a single prosecution “simply reflects the fact that doctors do in general act in good faith and in accordance with the ethics of their profession”. Mr Coppel challenged that conclusion, saying that the fact that there had only been a single prosecution meant that the enforceability of the law was theoretical rather than real. I do not agree. There was no evidence which required the Court to hold that doctors who in fact performed abortions in cases of what were clearly only minor handicaps could not be prosecuted.

The second part of the Court’s reasoning is at paras. 111-112, which read:

“111.

Furthermore, we do not accept Mr Coppel’s submission that the concepts used in section 1(1)(d) of the 1967 Act are too vague to constitute law. Everything depends on context. There are many legal concepts throughout our law which are more or less broadly phrased. The fact that such broad legal concepts then need to be applied to the facts of a particular case in order to determine whether a person is liable does not mean that the concepts themselves are so vague and unforeseeable as not to constitute law in the first place.

112.

In this context we accept the submission made for the Defendant on the basis of Bright v Secretary of State for Justice [2014] EWCA Civ 1628; [2015] 1 WLR 723, at para. 29, where Lord Dyson MR noted that the Strasbourg jurisprudence adopts ‘a realistic and pragmatic approach’ and acknowledges that there are some contexts in which it is impracticable to define with precision how a discretionary power will or may be exercised.”

I should set out more fully what Lord Dyson said in the passage from his judgment in Bright to which the Divisional Court refers. The claimants in that case were prisoners whom the prison authorities caused to be separated from other prisoners with whom they had formed a sexual relationship and with whom they wished to enter into a civil partnership. They contended that, in the absence of a published policy setting out the Secretary of State’s attitude to sexual relationships between people in prison, their separation constituted a breach of their article 8 rights because it was not in accordance with the law. Lord Dyson said:

“29.

… The Strasbourg jurisprudence adopts a realistic and pragmatic approach to the issue of what the requirement of ‘in accordance with the law’ entails. It acknowledges that there are some contexts in which it is impracticable to define with precision how a discretionary power will or may be exercised. The more complex the context and the greater the range of circumstances in which the power may be exercised, the less likely it is that article 8(2) will require a precise and detailed definition of the manner in which the power will or may be exercised. It is no part of ‘in accordance with the law’ to require public bodies to do what is impossible or impracticable.

30.

In some contexts, it is neither impossible nor even very difficult to define in advance the way in which a discretion will or may be exercised. In such cases, the principle of certainty enshrined in the expression ‘in accordance with the law’ requires a clear statement of how the discretion will or may be exercised. If that statement is absent in such cases, the shortcoming may not be made good by the fact that the decision is susceptible to challenge in adversarial proceedings before an independent authority or a court and the existence of the remedy of judicial review may not save the day: see, for example, Gillan v UK (2010) 50 EHRR 45 at para 86. But where the statement as to how a discretion will or may be exercised is as precise as is practicable in all the circumstances, the fact that a decision may be challenged in adversarial proceedings provides the important safeguard against arbitrary decision-making that is required by ‘in accordance with the law’.”

Although Ms Smyth supported the Divisional Court’s conclusion and reasoning, her primary submission on this aspect of the case was more fundamental. She submitted that the Appellant’s arguments were focused on the wrong target. What has to be “in accordance with the law” is the interference complained of. The interference of which the Appellants complain, and which at this stage of the argument is assumed to have been established, is the dissemination by the statute of a negative stereotype about the value of people with a serious disability. That interference is plainly “in accordance with the law” because it is, on the Appellants’ own case, inherent in the provision itself. It is not dependent on the particular drafting of section 1 (1) (d): the statute would send exactly the same message even if it gave the kind of guidance which Mr Coppel says is required. The argument that section 1 (1) (d) was framed in unacceptably general terms would indeed be relevant if the Court were concerned with an interference with the article 8 rights of a woman seeking an abortion, or indeed any article 8 right of the foetus not to suffer abortion, because it might mean that it was unpredictable what the law did or did not permit in their particular case; but that is not the kind of interference with which we are concerned here.

In my view that submission is well-founded. Mr Coppel’s answer was threefold, though there is in truth a good deal of overlap between the points.

I would add that the need to become involved in these analytical subtleties reflects the difficulties which inevitably arise if the Appellants’ case on interference is accepted, since they are seeking to challenge the alleged defects in the section 1 (1) (d) regime in circumstances where no rights of either the mother or the foetus, to whom alone those defects might make a difference, are in play.

If that is right, there is no need for me to consider Mr Coppel’s substantive argument as summarised above; and of course the whole of the “in accordance with the law” argument does not arise if I am right on ground 1. I will nevertheless address it, but more economically than would be appropriate if this were the decisive issue.

In broad terms, I agree with the Divisional Court that in the particular context of the issue with which it is concerned section 1 (1) (d) has the character of “law” within the meaning of article 8.2. I also agree that Lord Dyson’s observations in Bright are of central importance here: the degree of specificity required is acutely sensitive to the context in which the issue arises. Ms Smyth referred us to the observations of Lord Sales and Lord Burnett CJ to similar effect, at para. 51 of their judgment (with which the other members of the Court agreed) in the decision of the Supreme Court inR (A) v Secretary of State for the Home Department [2021] UKSC 37, [2021] 1 WLR 3931. They said:

“… [T]he concept of ‘law’ in the ECHR, including in article 8(2), does not imply a requirement that the domestic law relevant to a matter within the scope of a Convention right should be free from doubt as to its application and effect in particular cases. No system of law could possibly achieve that, and the ECHR does not require it. As the Strasbourg Court said in the landmark case of Sunday Times v United Kingdom (1979-1980) 2 EHRR 245, para 49:

‘… a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.’”

The context here is decisions which are required to be taken by doctors. Doctors are very familiar with taking decisions involving the assessment of both the risk and the degree of potential disabilities and their impact on quality of life. Such decisions necessarily involve complex professional judgements of a kind which do not lend themselves to specific statutory guidance. Parliament’s use of broad concepts such as “substantial risk” and “serious handicap” properly reflects that context. It is important in this connection that the RCOG, being the relevant professional body, does not recommend changes to the current law, since if the statutory language produced wide disparities of practice, and thus unpredictability as to the application of the law, that would have been identified. No doubt the areas of uncertainty in the terms “substantial” and “serious”, which the RCOG Guidance acknowledges, may mean that some particular decisions falling to be taken under section 1 (1) (d) are difficult; but it is inherent in the kind of decision-making with which we are concerned that there will be marginal decisions, and it does not follow that the problems will be resolved by greater specificity in the drafting. Mr Coppel sensibly disavowed any suggestion that it was necessary that there should be a statutory list of conditions, but I am not persuaded that the kind of more general guidance for which he argued would be of real value.

I do not believe that the observations in A, B and C v Irelandrelied on by Mr Coppel have any relevance to the present case. The circumstances in which abortion was permissible in Ireland at the relevant time depended not on legislation but on a decision of the Irish Supreme Court interpreting an article of the Constitution, and it is hardly surprising that in those circumstances the ECtHR expressed the concern that it did.

I would accordingly have dismissed ground 3 if it arose for decision.

JUSTIFICATION

The Divisional Court dealt with the issue of justification at paras. 113-134 of its judgment. It applied the well-known four-stage test. As regards stages 1 and 2, it held that if (contrary to its primary conclusion) section 1 (1) (d) interfered with the Appellants’ article 8 rights the interference was in pursuit of a legitimate aim, namely (in brief) the protection of the rights of pregnant women, and was rationally connected to that aim. There is no challenge to those conclusions.

The Court considered stages 3 and 4 – in short, proportionality – at paras. 116-134. Up to para. 121 it sets out Mr Coppel’s submissions. In para. 122 it summarises them as follows:

“In summary, Mr Coppel submits that section 1(1)(d) goes further than is necessary in order to protect the interests of pregnant women and, largely because of its over-breadth, does not strike a fair balance between those interests and the interests of the foetus, other disabled persons and the interests of the community as a whole.”

It continues:

“123.

We do not accept those submissions. First, whatever the precise number of States that permit abortion on grounds of foetal abnormality (see above), there is no international consensus in the Council of Europe on this sensitive issue. Accordingly, it is clear that the European Court gives a wide margin of appreciation in this context. As we have already mentioned, Mr Coppel is unable to point to any decided case in the European Court of Human Rights which supports his submissions.

124.

Secondly, in the domestic constitutional context, this is a field where it is particularly important to give Parliament a wide margin of judgement. The NIHRC case demonstrates that that margin is not unlimited and the courts do have an important role to play under section 4 of the HRA. That is a role which Parliament itself has given to them. But that is not to say that, where difficult issues about balancing various interests arise, Parliament should not be given a great deal of respect.

125.

Thirdly, it is important to bear in mind that Parliament gives a choice to women; it does not impose its will upon them. The evidence before the Court powerfully shows that there will be some families who positively wish to have a child, even knowing that it will be born with severe disabilities. But the evidence is also clear that not every family will react in that way. As it was put on behalf of the Defendant, the ability of families to provide a disabled child with a nurturing and supportive environment will vary significantly.

126.

The evidence is also clear that, although scientific developments have improved and earlier identification may be feasible, there are still conditions which will only be identified late in a pregnancy, after 24 weeks. As Prof. Thilaganathan also explains there will be circumstances where a woman only becomes aware of the pregnancy very late on in that pregnancy.

127.

Furthermore, Parliament has considered the question whether it would be feasible or desirable to set out an exhaustive list of foetal abnormalities rather than having the broader terminology used in section 1(1)(d). It was the specific recommendation of the Select Committee Report which preceded the debate on what became the 1990 Act that such an exhaustive list would be neither feasible nor desirable. This is supported by the evidence filed in these proceedings by Prof. Thilaganathan, who explains why individual clinical consideration is necessary and that any statutory list of conditions would quickly become outdated in the light of rapidly developing scientific knowledge.”

The reference in para. 123 is to a finding at para. 30 of the Court’s judgment, which reads:

“There is a wide range of different provisions across Member States of the Council of Europe with respect to terminations on the ground of foetal abnormality. Gestational limits vary significantly across Member States, as do the way that foetal abnormality is dealt with; it is therefore very difficult to summarise the position accurately. However, there is evidence before the Court that there are between 16 and 18 States which provide for differential gestational limits on the grounds of serious foetal abnormality. There are 31 States which legislate in some way for abortion to be permitted on grounds of foetal abnormality.”

The Court then goes on, at paras. 128-131, to refer to R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559, [2021] Fam 77, in which this Court emphasised the need for the courts to respect the “margin of judgement” to be afforded to Parliament in cases involving  “difficult and sensitive social, ethical and political questions”, observing that that message had since been reinforced by the decisions of the Supreme Court in AB, to which I have already had occasion to refer, and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223.

Finally, at paras. 132-134 the Court addresses submissions made by Mr Coppel by reference to the decision of the Supreme Court in the NIHRC case. Para. 134 reads:

“We do not accept the submission of Mr Coppel in this regard. The issue before the Supreme Court in NIHRC was different. The majority of the Court expressed the view that Northern Ireland was not required by Article 8 to introduce an exception of the type which there is in section 1(1)(d) of the 1967 Act (save in respect of fatal abnormalities). It does not follow that a State is not permitted to have such legislation. That is the proposition for which Mr Coppel contends in the present case. We reject that submission.  The issue is clearly one which falls within the margin of judgement afforded to Parliament in this sensitive area.”

The final sentence of that paragraph is not limited to the issue of the relevance of NIHRC. It is plainly intended, as Mr Coppel submitted, to state the essence of the Court’s overall reasoning on the issue of proportionality.

Before us Mr Coppel developed his challenge to the Divisional Court’s decision on proportionality, as regards both article 8 and article 14, under two headings. I take them in turn.

The first heading was that the Court erred in its approach to the margin of judgement. The error is said to occur in para. 123 of its judgment. Mr Coppel submitted that the Court evidently proceeded in that paragraph on the basis that a member state of the Council of Europe must be accorded a wide margin of appreciation in any case where an applicant could not show uniformity, or near-uniformity, of practice in permitting the interference complained of, whereas it was clear from the Strasbourg case-law that there was no such rule: he referred in particular to Goodwin v United Kingdom, app. no. 28957/95, (2002) 35 EHRR 18, a case concerning trans-sexual rights, where the Grand Chamber said that it “attaches less importance to the lack of evidence of a common European approach ... than to the clear and uncontested evidence of a continuing international trend”. He also pointed out that the figures referred to by the Divisional Court showed that only 16 out of 47 states provided for differential gestational limits on the grounds of serious foetal abnormality and that it was unclear how many of those states permitted abortion in such cases without any other restriction. The use of the word “accordingly” showed that the Court’s error in this regard had infected its conclusion that Parliament should be accorded a wide margin of judgement, which was fundamental to its reasoning.

I do not believe that the Divisional Court was wrong to proceed on the basis that Parliament should be accorded a wide margin of judgement in deciding to enact section 1 (1) (d). I do not in fact believe that its decision to do so was based wholly, or even mainly, on the variety of practice among other Convention states: Mr Coppel reads too much into the word “accordingly”. It was legitimate for the Court to take that factor into account, acknowledging, as it is clear that it did, the limitations of the evidence; but it placed more weight on the nature of the subject-matter and the recent reminders in the domestic case-law about the respect properly to be paid to the role of Parliament – see paras. 124 and 128-131 of its judgment. That is indeed an important point. The rules governing abortion, and more particularly the extent to which a woman should be entitled to terminate a pregnancy in a case of serious foetal abnormality, are quintessentially a matter for the democratically elected legislature. The amendments made by the 1990 Act were fully debated, on a free vote, and with the benefit of much professional expertise.

Mr Coppel’s second heading was directed to particular errors which he said were made by the Divisional Court in striking the proportionality balance. His skeleton argument identifies no fewer than seven alleged errors. Not all were developed in his oral submissions, and I can deal with most of them briefly.

First, it is said that the reference in para. 123 to the fact there was no Strasbourg case-law supporting the Appellants’ case on proportionality showed that the Court took as its starting-point “the Ullah principle” (cf. para. 76 above), but that that had no role as regards the substantive issue of proportionality. In my view it is clear that the Court was not referring to the Ullah principle at all but simply making the unexceptionable observation that there was no support in the authorities for Mr Coppel’s case.

Second, Mr Coppel argues that the Court failed to put into the balance either the interference with the Appellants’ article 8 rights occasioned by the stereotyping effect of section 1 (1) (d), which is not mentioned at all in these paragraphs, or the interference with the interests of the foetus or the community’s interests in its preservation (adopting Lady Hale’s formulation quoted at para. 41 above). I do not accept that. The entire exercise presupposed an interference with the Appellants’ article 8 rights, and there was no need for the Court to spell it out. Those rights and the interests of the foetus were clearly among the “various interests” that are referred to in para. 124 as needing to be balanced.

Third, Mr Coppel complains that the primacy which the Court gave to respecting Parliament’s margin of judgement meant that it failed to recognise that disability discrimination can only be justified by “very weighty reasons”, as held by the ECtHR in Guberina v Croatia, app. no. 23682/13, (2011) 66 EHRR 11. He referred to an observation by Lord Kerr in the NIHRC case (see para. 331 of his judgment) that it was “a very weighty factor” that the UNCPRD Committee believed that, where abortion was permissible, there should be no discrimination on the basis that the foetus was liable to be born with a disability. In so far as it relies on discrimination against the disabled foetus, contrary to article 14, this submission is misconceived, since the foetus has no Convention rights. Observations taken from the general case-law about disability discrimination, such as Guberina, thus have no application. As for Lord Kerr’s observations based on the views of the UNCPRD Committee, these are not directly applicable to the current case: see para. 68 above and para. 134 of the judgment of the Divisional Court.

Mr Coppel’s fourth point makes a number of rather disparate criticisms of particular alleged deficiencies in the reasoning of the Divisional Court. The first is that it failed to put into the balance the over-breadth of the language of section 1 (1) (d). I do not accept that criticism for the reasons given above in connection with the “in accordance with the law” issue. The second is that it failed to engage with the Appellants’ submission that Parliament could have drawn a distinction between conditions that are detectable in the first 24 weeks (as Down’s syndrome now is) and those less common conditions that may only be detectable at a later stage. But the evidence before the Court, which it accepted, was that even in the former kind of case mothers will not always be aware that they are pregnant, or the condition may not have been diagnosed, before the end of the first 24 weeks, and it was open to Parliament to permit late abortions in order to cover such cases (which, as we have seen, are in fact rare). Mr Coppel submitted that it was in that case irrational to have an absolute limit in condition (a); but there is no reason why Parliament was obliged to equate the case where a mother is at risk of some injury to her physical or mental health (not, it should be noted, “grave permanent injury” or risk to her life, which are covered by conditions (b) and (c)) with the case where her child was at risk of serious disability. Finally, he submitted that para. 127 of the judgment appeared to proceed on the basis that the Appellants were arguing that a definitive list of conditions was required, whereas in fact his “more refined submission” was that there should be more precise guidance (see para. 87 above). Ms Smyth contends in her skeleton argument that Mr Coppel did not in fact put the case that way in the Divisional Court. The issue was not explored in the oral argument, but even if Mr Coppel did put his case that way I do not see that the point undermines the Court’s conclusion on proportionality. What it says in para. 127 is right and relevant as far as it goes; as to Mr Coppel’s more refined submission, I repeat my conclusion at para. 98 above.

Mr Coppel’s fifth point in substance repeats the arguments about the NIHRC case with which I have dealt in the context of his third point.

Sixthly, Mr Coppel criticises the first sentence of para. 125 of the Court’s judgment, arguing that to point out that section 1 (1) (d) does no more than give women a choice whether to abort a seriously disabled foetus did not advance the argument: the issue was whether it was proportionate for them to have that choice when balanced against their article 8 rights and the “moral interests” identified by Lady Hale (see para. 41 above). This criticism ignores the thrust of the paragraph as a whole, which is that many women will not feel able to provide a seriously disabled child with a “nurturing and supportive environment”.

Finally, at para. 54 of his skeleton argument Mr Coppel submits that:

“… [B]ecause of its determination to afford a broad margin of judgement to parliament, the DC’s reasoning on proportionality was characterised by unquestioning acceptance of submissions made in the Respondent’s evidence and omission to address specific, powerful criticisms of those submissions which were made by the Appellants.”

The examples given in support of this submission, however, appear to be no more than a re-packaging of the particular points which I have already addressed.

For those reasons I believe that the Divisional Court’s decision on proportionality is unimpeachable, and I would have dismissed ground 4 if it arose for decision. Indeed it is in my view reinforced by the nature of the interference with article 8 rights the proportionality of which is in issue. As I hope I have already made clear, I do not doubt the reality of the offence that the Appellants take at the message which they perceive that section 1 (1) (d) sends about the value of the lives of the living disabled. But I believe that an interference of that character is inherently less difficult to justify than an interference of the kind in issue in the NIHRC litigation, where it consists in requiring a woman to continue an unwanted pregnancy.

ARTICLE 14

This aspect of the appeal was addressed only very briefly in the skeleton arguments and still more briefly in oral submissions, and I can take it very shortly.

At para. 137 of its judgment the Divisional Court held that it followed from its conclusions with regard to articles 2, 3 and 8 that the matters of which the Appellants complained did not fall within the ambit of any of those articles, and accordingly that no claim could be brought under article 14.

In his skeleton argument Mr Coppel submitted that that was wrong because “if there is an interference with Article 8 (1) rights, it follows that there is also a difference of treatment within the ambit of Article 8”. In her skeleton argument Ms Smyth primarily relied on her submissions on the interference issue, though she also submitted that there was in any event no differential treatment because section 1 (1) (d) “does not treat differently non-disabled persons and disabled persons who have been born”.

On the basis advanced in Mr Coppel’s skeleton argument, my conclusions above are fatal to the article 14 claim because I would hold that there has been no interference with the Appellants’ article 8 rights. However, in his oral submissions he advanced an additional submission to the effect that even if there had been no interference with the Appellants’ article 8 rights the complaint still fell within the ambit of the article. He said that, even if the Court concluded that the impact of section 1 (1) (d) was on the facts of this particular case not of a sufficient degree to constitute an interference, it was nevertheless capable of having such an impact, and that that brought the case within its ambit.

The problem with that submission is that my reasons for rejecting the case under article 8 do not depend on the degree of the impact of section 1 (1) (d) on the Appellants. Rather, they are that section 1 (1) (d) does nothing which directly impacts on the identity or self-worth of the living disabled.

It follows that neither basis on which Mr Coppel submitted that article 14 was engaged is well-founded. I should add that even if I were wrong about that the Appellants would fail on the issue of justification for the reasons which I have given in relation to article 8: it was common ground before us that the proportionality exercise was the same for both purposes.

I should emphasise that this Court, like the Divisional Court, is only concerned with an issue of law. The question of whether, and if so in what circumstances, it should be lawful to abort a viable foetus on the basis that it will or may be born with a serious disability is one of great sensitivity and difficulty. But it is a question which it is for Parliament, and not the Courts, to decide. The only question for us is whether the way that it was decided in 1990 involves a breach of the Convention rights of the Appellants as people born with such a disability. For the reasons given I do not believe that it does. I would accordingly dismiss this appeal.

I agree that this appeal must be dismissed for the reasons given by the Vice-President, and, were this to be necessary, for the reasons given by Peter Jackson LJ. I add two observations.

I am less confident than Peter Jackson LJ of the extent to which there is general familiarity with the Abortion Act 1967, as amended. The public discourse tends to assume that there is a right to abortion, subject to time limits. That is not how the statute is framed. Its purpose and effect is to render lawful that which otherwise would be unlawful provided certain conditions are met, as the Vice-President has explained.Whilst the Act is a significant statute I doubt these matters are generally understood and I am confident that the conditions that must be satisfied for an abortion to be lawful under 24 weeks are not generally known. There is no reference to them on the NHS website where abortion is explained to those who are interested to know. Women who want to undergo an abortion will know about the detail which concerns them, as will the doctors. The NHS website informs the reader that abortion after 24 weeks is permitted in very limited circumstances including that the life of the mother is danger or there is a risk of serious disability. In fact, abortions performed after 24 weeks are rare. The Vice-President refers to a total of 19 late abortions in 2019 where the reason given was Down’s (13) or Down’s was one of the reasons given (6). To put those figures in context the number of abortions carried out in 2019 was well in excess of 200,000. I say this not to minimise the importance of those late abortions but to explain my view that, outside those directly affected or with a particular interest in this issue, any general discussion on abortion is unlikely to extend to the question of late abortion at all.

I accept without hesitation that some people living with Down’s Syndrome or other serious disabilities and their families find the provisions of section 1(1)(d) offensive and upsetting. I too accept the evidence of Mrs Carter and Ms Lea-Wilson on this question.I note that those involved in the research by Professor Hastings’ group were upset by the fact that some pregnant women terminated their pregnancies when early testing diagnosed Down’s syndrome. That same group, however, respected the right of the women to choose. This latter observation is an important reminder that there is no automatic road from a diagnosis of Down’s, at a late stage or otherwise, to a termination. The decision, in the end, is for the woman. She is uniquely placed to make the decision and it is her right and personal responsibility to do so in accordance with the law. In my judgment a woman’s decision to have an abortion in that situation does not have the effect of stigmatising the living disabled. To that I would add that the figures set out by the Vice-President at paragraph 20 above show a significant percentage of those offered early screening do not take it up. Many women who receive a diagnosis of Down’s Syndrome do not have an abortion. I do not accept therefore that the practical application of the legislation leads to stigmatising the living disabled. As to whether the fact of section 1(1)(d) stigmatises the living disabled by its very existence, I adopt the reasoning of the Vice-President and, if necessary, Peter Jackson LJ.

I agree that the appeal should be dismissed. In relation to Grounds 2-4, I gratefully adopt the reasons given by the Vice-President. I also agree that Ground 1 fails but reach that conclusion for reasons that somewhat differ from his.

I agree that the existence of section 1 (1) (d) does not interfere with the Appellants’ right to respect for their private life. Not every adverse circumstance amounts to an interference with Convention rights and in my view the impact of the legislation on these Appellants is not so serious as to amount to an interference. In reaching that conclusion, I have regard to these matters: it is necessary for the availability of abortion to be regulated; a balance must be struck between the rights of pregnant women and the interests of the unborn; that balance has been struck by democratic means; the legislation does not directly concern the Appellants; it is not intended to cause offence; it is not the root cause of discrimination but one of many contributors to it. I would not treat these factors in isolation, and none of them is decisive, but taking them together, the threshold for interference is not crossed. I too acknowledge the offence felt by the Appellants at the language and effect of section 1 (1) (d), but theirs are not the only interests in play. As the Vice-President says at para. 73, the existence of a legal right cannot depend on subjective perceptions.

I only respectfully differ from his analysis of the issue of interference in these respects, none of which can affect the outcome:

For these reasons, briefly expressed, I too would reject Ground 1 and would dismiss the appeal.