Human Fertilisation & Embryology Authority v Amicus Healthcare Ltd. & Ors

Under the Human Fertilisation & Embryology Act 1990 (which I shall call “the 1990 Act”) the Human Fertilisation & Embryology Authority (which I shall call “the HFEA) is responsible, among other things, for the licensing of those involved in human in vitro fertilisation. In that regard, it has issued a licence to the Bath Assisted Conception Clinic (which I shall call “the clinic”) which is operated by the first and second defendants. In these proceedings the HFEA seeks declaratory relief in relation to certain embryos stored at the clinic.

This case is a sequel to the Court of Appeal decision last year in Evans v Amicus Healthcare Limited & Ors (now reported at [2005] Fam 1). In their joint judgment, Thorpe LJ and Sedley LJ commented that the case “is a tragedy of a kind which may well not have been in anyone’s mind when the statute was framed”.

The matters decided by the Court of Appeal included both the construction of the 1990 Act and the question whether, under the Human Rights Act 1998 (which I shall call “the HRA”), provisions in the 1990 Act contravened the European Convention for the Protection of Human Rights and Fundamental Freedoms (which I shall call “the Convention”).

In this action I am asked to make declarations which, to my mind, have wider significance in relation to the Convention. The background to the litigation now before the court may be summarised as follows. Ms Natallie Evans, the third defendant, was a patient of, and has embryos in storage at, the clinic. The embryos were created in November 2001, using eggs harvested from Ms Evans and sperm donated by her former partner, Mr Howard Johnston, the fourth defendant. This was done after both parties had signed forms consenting to the relevant procedures as part of their treatment together. In May 2002 the relationship between the couple ended. Mr Johnson wrote to the clinic to notify it of the separation and to state that the embryos could be destroyed. Ms Evans issued High Court proceedings in the Family Division in an effort to prevent destruction of the embryos. She was unsuccessful at first instance and before the Court of Appeal. As a matter of construction of the statute, and on the evidence, it was held that Mr Johnston was entitled to withdraw his consent and that following such withdrawal the clinic was obliged, under a statutory condition attaching to its licence, to cease keeping the embryos. The statutory principle was that following implantation of an embryo, it was the woman who was entitled to take decisions affecting it but that until then her male partner was, in general, entitled to refuse to allow implantation. That is probably an oversimplification but I hope it conveys the gist of the Court of Appeal’s conclusion. The Court of Appeal also concluded that this principle did not infringe the Convention, and, accordingly, refused to grant a declaration of incompatibility. An application for leave to appeal to the House of Lords was refused.

During the currency of the legal proceedings, and, in particular, while the matter was before the Court of Appeal, the embryos remained in storage pursuant to a stay. The Court of Appeal extended the stay while Ms Evans applied to the House of Lords for leave to appeal. This stay, however, lapsed when Ms Evans petitioned for leave to appeal to the House of Lords was refused by an appeal committee. If matters had gone no further, the result of the Court of Appeal’s decision would be clear. Following the withdrawal of Mr Johnston’s consent to the continued storage of the embryos, their continued storage was a breach of the clinic’s licence and would entitle the HFEA, if so minded, to take steps to revoke that licence under s. 18 of the 1990 Act. Another aspect seems to me tolerably clear, but, as there is a suggested argument about it, I shall simply say that on the assumption that conduct breaching the conditions of a licence contravenes s. 3 of the 1990 Act then the continued storage of the embryos was a criminal offence under s. 41 of the Act.

However, matters have gone further. Ms Evans has made an application to the European Court of Human Rights. On 22nd February this year the European Court of Human Rights wrote to the parties, that is to say, Ms Evans and the UK Government. By that letter, the President of the Chamber dealing with the case, acting under Rule 39 of the Rules of Court, indicated that it would be desirable in the interests of the proper conduct of the proceedings before the court that the Government take appropriate measures to ensure that the embryos are not destroyed by the clinic at which they are stored until the court has had the possibility to examine the case. There is a natural desire on the part of the clinic, the HFEA and the United Kingdom Government to comply with this indication. From the United Kingdom Government’s point of view, the desire is particularly strong as the Grand Chamber of the European Court of Human Rights held on 4th February this year, in the case of Mamatkulov and Abdurasulovic v Turkey (application numbers 46827 and 46951 of 1999), that failure to comply with such an indication was a breach of Article 34 of the Convention.

However, Article 34 of the Convention is not one of the Convention rights included in the schedule to the HRA. Nobody has been able to identify any provision of domestic human rights law expressly enabling the clinic to be required to act in accordance with the President’s indication. Indeed, no provision of domestic human rights law has been identified which expressly gives the clinic any protection from the consequences of acting in accordance with the President’s indication.

In these circumstances the clinic, and the HFEA wish to know whether it would be lawful for the HFEA to decide that it will take no action against the clinic, pursuant to s. 18 of the 1990 Act, arising out of the fact that the clinic is storing embryos created from the gametes of the third and fourth defendants without the effective consent of the fourth defendant to the storage of the embryos pending the determination of the third defendant’s application to the European Court of Human Rights, and any amendment or enactment of legislation consequential on the determination of that application and/or the expiry of the statutory period. That statutory period, as I understand it, is a reference to the maximum period within which embryos can be kept stored.

The clinic also seeks comfort as to possible criminal sanctions. By letter dated 28th February 2005, solicitors acting on behalf of the clinic asked the Director of Public Prosecutions (whom I shall refer to as “the DPP”) to indicate how he would exercise his discretion to prosecute, or to consent to the prosecution of, any person for an offence under s. 41 of the 1990 Act arising from the continued storage by the clinic of Ms Evans’ embryos. By letter dated 3rd March 2005, Mr Chris Newell, the Crown Prosecution Service Director of Case Work, acting under delegated powers, indicated that the DPP was satisfied that it would not be in the public interest to prosecute any person for an offence contrary to s. 41 of the Act arising out of the storage to date of the relevant embryos by the clinic. In relation to the commission of any future offence, Mr Newell made it clear that if there were no relevant and significant changes in the surrounding circumstances, including the existence of the indication by the European Court of Human Rights, the DPP would expect to continue to attach the same weight to the public interest factors lending both in favour of and against any prosecution.

The claim form, issued under Part 8, sought both a declaration, along the lines that I have mentioned earlier, and an order requiring the first and second defendants to preserve the embryos pending the determination of this claim or further order. It was not necessary to proceed with the application for interim relief envisaged in that part of the claim form as the clinic undertook to preserve the embryos until today.

The first and second defendants indicated that they would wish to seek from the court clarification of two further matters, which I can summarise as follows. First, the lawfulness of the DPP’s understanding that on the available facts the public interest was not in favour of him consenting to a prosecution under s. 41 of the Act. Second, whether the clinic is entitled, as a matter of legitimate expectation, to rely upon a decision of the HFEA not to seek revocation of its licence and upon the indications given by the DPP. The Secretary of State for Health and the DPP have each been joined as interested parties.

At the start of the hearing this morning I was told that the parties proposed that three declarations should be made by consent. Counsel recognised that declarations are not made as a matter of course, even though the parties have reached agreement. I accordingly heard submissions from counsel in support of the declarations. I shall take them in turn.

As amended in argument, this was as follows, “It is lawful for the claimant to decide that it will take no action against the Bath Assisted Conception Clinic (“the BACC”), pursuant to s. 18 of the Human Fertilisation & Embryology Act 1990, arising out of the fact that the BACC is storing embryos created from the gametes of the third and fourth defendants without the effective consent of the fourth defendant to the storage of the embryos pending the determination of the third defendant’s application to the European Court of Human Rights (application number 6339/05) and any amendment or enactment of legislation consequential on the determination of that application and/or expiry of the statutory storage period”.

I am satisfied that it is appropriate to make this declaration. I deal, first, with the law and, second, with the exercise of my discretion under CPR 40.20. As to the law, by s. 12(c) of the 1990 Act it is a condition of every licence granted under the Act that the provisions of Schedule 3 to the Act are complied with. By paragraph 8(2) of Schedule 3 to the 1990 Act, an embryo, the creation of which was brought about in vitro, must not be kept in storage unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the storage of the embryo and the embryo is stored in accordance with those consents. By s. 17(1)(e) of the 1990 Act, it is the duty of the individual, under whose supervision the activities authorised by a licence are carried on, “the person responsible”, to secure that the conditions of the licence are complied with. By s. 18 of the 1990 Act, a licence committee of the HFEA may vary or revoke a licence if it is satisfied that the person responsible has failed to discharge the duty under s. 17.

Miss Rose, on behalf of the HFEA, submitted that in exercising its statutory discretion whether or not to take regulatory action against the clinic for breach of its licence conditions, the HFEA is entitled to take into account the fact that taking regulatory action would be a breach of the United Kingdom’s international law obligation under Article 34 of the Convention, and, for that reason, to decide that it would take no action against the clinic’s licence, and to notify the clinic of that fact.

There was a question of statutory interpretation; when exercising powers under s. 18, was the authority entitled to take into account international law in this way? Miss Rose submitted that there was a strong presumption that in enacting such a general discretion, Parliament did not intend to legislate in a way which would put the United Kingdom in breach of international law. She cited for that proposition the case of Ghaidan v Godin-Mendoza [2004] WLR 113, and, in particular, paragraph 60. I am not sure whether paragraph 60 is directly in point, but I am satisfied that the proposition which underlies the declaration, namely, that it is legitimate for the authority to take into account the United Kingdom’s international law obligations, is sound. I am far from saying that the authority must necessarily, in all circumstances, act so as to ensure that the United Kingdom complies with such obligations. Indeed, it has been recognised by international lawyers that there can be occasions where international law obligations conflict. For present purposes it is sufficient that the international law obligation is a legitimate factor to be taken into account.

Mr Coppell, who appears on behalf of the Secretary of State for Health, helpfully drew my attention to the analogy with immigration cases prior to the enactment of the HRA. It was frequently the case that the Home Secretary, or those acting on his behalf, would expressly state that they had taken into account the United Kingdom’s obligations under relevant international Conventions. There has never been any suggestion, so far as I am aware, that that was an improper matter for them to take into account and, as it seems to me, in this case, the taking into account of the European Convention for the Protection of Human Rights and Fundamental Freedoms is plainly within the breadth of the statutory provision in s. 18. In short, my conclusion is that the Act does not require that the HFEA takes enforcement action for breach of every condition, even a statutory condition. It gives the HFEA a discretion and a decision of the kind envisaged would be a lawful exercise of that discretion.

Mr Tolson QC, on behalf of the third defendant, suggested that there was an additional basis for reaching the conclusion that it was appropriate for the HFEA to have regard to the obligation of the United Kingdom under international law. This founded upon s. 2 of the HRA and an assertion that the letter notifying the parties of the President’s interim indication was a decision of the European Court of Human Rights. In the circumstances, I do not need to determine that question and I say no more about it.

Turning to the exercise of my discretion under CPR 40.20, the court approaches declarations which are sought by consent with particular caution. It is strongly desirable before making a declaration to hear argument both for and against what is proposed. I conclude that in this case, however, the natural concern on the part of the clinic about continuing to act in contravention of its licence conditions makes it appropriate to take the exceptional course of granting a declaration without there being any argument to the contrary.

As amended in argument, this had two limbs as follows:

“It was lawful for the Director of Public Prosecutions to indicate on 3rd March 2005 that,

(a)

he was satisfied that it would not be in the public interest to prosecute any person for an offence contrary to s. 41 of the 1990 Act arising out of the storage to date of the relevant embryos by the BACC, and,

(b)

in the circumstances of any continued unauthorised storage of the relevant embryos by the BACC, as a matter of policy:

(i)

the DPP would, wherever possible, seek to act in a way that enabled the United Kingdom Government to comply with an indication given by the European Court of Human Rights,

(ii)

the DPP would, wherever possible, seek to act in a way that did not frustrate the proper conduct of proceedings before the European Court of Human Rights,

(iii)

the DPP would seek to exercise his discretion under s. 42 of the 1990 Act in a consistent manner. Thus, if there were no relevant and significant change in the surrounding circumstances, including the existence of the indication by the European Court of Human Rights, the DPP would expect to continue to attach the same weight to the public interest factors, tending both in favour of and against any prosecution.

I am satisfied that it is appropriate to make this declaration. Again, I deal, first, with the law and, second, with the exercise of my discretion under CPR 40.20. As to the law, Mr David Perry, who appeared on behalf of the DPP, drew attention, first, to the Code for Crown Prosecutors of 2004. This Code makes it clear that the decision to prosecute is a two-stage process. The first stage involves a consideration of the evidence. Crown prosecutors must be satisfied that there is enough evidence to provide a realistic prospect of conviction. If the case passes the evidential stage, then Crown prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. Paragraph 5.8 of the Code provides,

“Crown prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action will be better. The Code contains a non-exhaustive list of some common public interest factors both for and against prosecution. Included in the list of factors against prosecution are matters which have relevance to the seriousness of the offence”.

Mr Perry then drew my attention to the decision of the House of Lords in R (on the application of Pretty) v DPP. In that decision the House of Lords made it plain that since the Executive had no power to dispense with, or suspend, laws, or their execution, without Parliamentary consent, the DPP had no power to undertake that a crime yet to be committed should be immune from prosecution. Mr Perry drew my attention, in particular, to passages in the speeches of Lord Bingham of Cornhill, at paragraph 39, Lord Steyn at paragraph 65, and Lord Hobhouse at paragraph 117. However, the House of Lords also indicated that there may be occasions on which statements giving guidance as to how the DPP would exercise his discretion in relation to particular offences would be appropriate. The DPP is, therefore, entitled to form a policy as to the criteria which he would apply when deciding how to prosecute in the case of a particular type of offence.

It is clear to me that the 1990 Act does not require that the DPP should prosecute for breach of every condition, even a statutory condition. The limited indication which the DPP has given in this case, in the letter of 3rd March this year, appears to me to fall within that which is permissible following the decision of the House of Lords in Pretty.

Here too Mr Tolson had an additional point. In a skeleton argument, lodged prior to the hearing, he set out a sustained thesis to the effect that breach of a condition would not involve acting otherwise than in pursuance of a licence under s. 3 of the 1990 Act. Again, in the light of the conclusion that I have reached on Mr Perry’s submissions, I do not need to say anything about that argument.

Turning to the exercise of my discretion under CPR 40.20, this declaration is appropriate for similar reasons to those which I have identified in relation to the first declaration.

This also had two limbs as follows,

“In the circumstances,

“(a)

In the event that the claimant decides that it will not take regulatory action against the BACC and/or the person responsible, Mr N Sharpe, pending the determination of the third defendant’s application to the European Court of Human Rights (application number 6339/05) and any amendment or enactment of legislation consequential on the determination of that application and/or expiry of the statutory storage period, the first and second defendants are entitled to rely upon that decision as a matter of substantive legitimate expectation.

“(b)

The first and second defendants are entitled to rely, as a matter of substantive legitimate expectation, upon the DPP’s indications that it would not be in the public interests to prosecute any person for an offence under s. 41 of the Human Fertilisation & Embryology Act 1990 in relation to storage of the embryos to-date and that absent any relevant and significant change in circumstances that he would continue to attach the same weight to the public interest factors tending both in favour of and against any prosecution under s. 41 of the Human Fertilisation & Embryology Act 1990 arising out of the continued storage of the embryos”.

As a matter of discretion under CPR 40.20, I decline to grant this declaration. I make it clear that I know of no reason why the clinic should not rely on what has been said by the DPP, or any decision on the part of the HFEA. However, whether, and in what circumstances, either of those bodies are fettered by what they say or do may give rise to a variety of issues. It may well be unlikely that such issues arise on what has happened to-date or will come into play in the light of future events. I consider, however, that the clinic can and should rely on its own legal advice as to the consequences of anything said or done. A declaration, whether as to there being a “substantive legitimate expectation”, or as to the clinic being “entitled to rely”, in my view, involves too many assumptions for a case where the matter has not been in contest.

In the course of argument I questioned whether it was right to say that only Article 34 of the Convention was in play. I asked Miss Rose what would have happened in the Court of Appeal last year had that court concluded that the construction of the statute put forward by Mr Johnston would breach the Convention. She replied that one of the possible consequences would be that the court might wish to consider whether that conclusion led it to construe the 1990 Act in a different way.

In such a case, if the question of compliance with the Convention is to be determined imminently by the European Court of Human Rights, I put forward for consideration whether proceedings could be brought in the domestic courts seeking interim relief. The reasons why that might be possible can, I think, be helpfully examined by asking what might be the position if there were in future a decision of the European Court of Human Rights in Ms Evans’ favour. Let me make it clear that in this discussion I am expressing no view one way or the other as to whether Ms Evans has any prospect of success in the European Court. For the purposes of the discussion, I simply assume that Ms Evans has an arguable claim in that court. If Ms Evans were to succeed in that court, there is, I believe, something to be said for the proposition that she could return to the courts in this country and seek to have the construction of the statute revisited. If Miss Rose is right in saying that a conclusion, that the contentions put forward by Mr Johnston would involve a breach, is something which might lead the Court of Appeal to conclude that it should construe the 1990 Act differently, then there certainly seems to me to be much to be said for the proposition that Ms Evans would be entitled to take the matter back to the court. Of course, it might be that that was unnecessary because the United Kingdom Government took active steps to change the law. But I put that on one side for present purposes.

If that were to be the case, then it seems to me that this court would have a role in holding the ring. It is a well established jurisdiction that in order to ensure that any eventual decision may be effective, the court can take measures to preserve the status quo. One objection canvassed in argument was that there would be an issue estoppel arising from the Court of Appeal’s decision. As to that, however, it is important to bear in mind that we are in the field of public law. This action has not been brought in the Administrative Court but that does not render the subject matter any the less concerned with public law principles.

There have now been many statements in the courts where it has been pointed out that issue estoppel may not be appropriate in the context of public law and that what the public law court is particularly concerned with is whether there is an abuse of process. Some of the cases will be found set out in Fordham Judicial Review Handbook at paragraph 2.12.6 (Third ed 2001). Another objection was that there had been a binding decision of the Court of Appeal. Nothing that I say should be regarded as in any way departing from established principles of precedent. Those principles, nevertheless, entitle a court of the appropriate level in the hierarchy to reconsider its decisions in particular circumstances. It may well be that if the European Court of Human Rights were to hold in this case that there was a breach of Article 8, that the Court of Appeal would be entitled to reconsider the decision of last year. If not, it would certainly be open to the House of Lords to consider the matter.

In argument, I took a suggestion from a different field, that of Conventions under which abducted children are required to be returned to the country from which they were abducted. It might well be that the House of Lords reached a particular conclusion as to the obligations of the United Kingdom authorities which meant that a child had to be returned in particular circumstances. If there were good reason, for example, a decision of the High Court of Australia on precisely the same Convention, reaching the opposite conclusion, it would be open to the House of Lords to reconsider the matter. This court, in such circumstances, or, more likely, the Family Division, would have a role in holding the ring to enable that reconsideration not merely to take place but also to be effective.

Accordingly, with some diffidence, I put forward for consideration in the future whether there may not be remedies available in this court which enable, at least in some circumstances, the imposition of an interim obligation where there has been an indication by the President of a Chamber, under Rule 39, that interim measures are appropriate.

Before I leave this case, there is one other possible means of protection for the clinic that I should mention. Mr Moradifar, who appears on behalf of Mr Johnston, explained to me this morning that his client was no longer opposed to the granting of the declarations that the claimant and the first and second defendants were seeking. That was because his client had recognised that there could be irrevocable prejudice caused to Ms Evans if the embryos were destroyed. In those circumstances, it may well be that having had time to consider the matter, he is willing to consent to the continued storage of the embryos for a further period. I simply mention that as it is something which no doubt he will wish to consider.

The result is that I shall grant the first and second declarations as amended, but that I decline to grant the third declaration sought. I shall hear counsel as to any consequential orders.

Dr Stern, I shall decline the application. I have set out my reasons on the form as follows: I declined to grant the third declaration as a matter of discretion. No question of principle arises. The difference made by granting the proposed third declaration would not be so great as to invalidate the conclusion I have reached as to how to exercise my discretion, nor as to give rise to any question of public importance.