R (on the application of Christian Concern) v Secretary of State for Health and Social Care  EWCA 1546 (Admin)
The High Court refused the Appellant permission to bring a judicial review against the decision of the Secretary of State to approve ‘the home of a woman’ as being a place where treatment for the termination of pregnancy could take place.
Early medical abortion involves the taking of two drugs – Mifepristone and Misoprostol – with a gap of approximately 24-48 hours in between. Since 2018, it has been legal for the second of those drugs to be taken at home.
With the onset of the COVID-19 pandemic, many abortion providers were worried that women would not be able to access their services or would delay accessing services, potentially necessitating abortions later into a pregnancy (with higher risk of complication). There was also fear that delays would lead to services being swamped when people felt more comfortable to travel to providers and/or that some women may turn to ‘backstreet’ abortion providers. There was also particular concern about women trapped in abusive relationships.
It was therefore argued that women should be allowed to take both medications at home.
After some debate, the Secretary of State (1) approved the home of a doctor as an approved place, such that they could prescribe treatment for termination of pregnancy from home (2) prescribed the home of a woman as an approved place, such that the woman could take treatment for termination of pregnancy from home (3) with the conditions that the pregnant woman has attended an approved place, had a consultation with an approved place via video link, telephone etc. or has had a consultation with a doctor via video link, telephone, etc. and (4) that the pregnancy has not exceeded 9 weeks and 6 days.
Grounds of challenge
There were 8 grounds of challenge. Permission was refused on all 8.
1. Ultra vires – It was argued that the decision was ultra vires the 1967 Abortion Act, as s.1 of the Act states that a pregnancy must be terminated by a registered medical practitioner.
The Appellant sought to rely, via Pepper v Hart, on parliamentary statements made at the time of amendment to the Act in 1990 (which granted the power to approve places where termination of pregnancy could take place) in which a Minister was asked whether the amendments would pave the way for terminations of pregnancy at home. The Appellant argued that the Minister had given a categorical assurance that the powers granted would not be used to allow home abortions.
The court rejected this suggestion. First, it noted that Pepper v Hart was concerned with the interpretation of words used in legislation and not with statements about the ways in which powers conferred by legislation might be used in the future. In the latter situation, a statement might only be admissible if a minister had given a categorical assurance. The court rejected the Appellant’s argument that the Minister had given a categorical assurance, finding that the words used by the Minister were more open-ended than had been argued.
It was further argued that the requirement that the termination must be carried out ‘by a medical practitioner’ would not be met if a woman took the drugs at home. This was rejected on the basis that the Act did not require the doctor to administer the drugs themselves. Provided that the doctor ‘remains in charge throughout’ it did not matter whether the drugs were administered by, for example, a nurse or the woman herself.
2. Contrary to legislative purpose – it was argued that the decision permitted the whole process of abortion to take place at home, where there was no guarantee that the home would be safe or hygienic or that the woman would not be put under undue pressure. The court rejected this argument on the basis that there was nothing in the 1967 Act to support the submission. Furthermore, part of the purpose of the 1967 Act was to discourage ‘backstreet’ abortions and the decision in question was consistent with that purpose.
3. Irrationality – it was argued that the decision was irrational and that the effect of the decision on the epidemic would be ‘evidently minimal.’ This ground was rejected as it was plainly open to a reasonable Secretary of State to conclude that women may not be able to access legal abortions unless this decision was made.
4. Constitutional impropriety – it was argued that the proposed reform in question had already been debated in Parliament and rejected, that ministers had assured Parliament no such reform would take place, and that Parliament had been in recess and therefore unable to scrutinise the Executive. An analogy was drawn to the Miller cases. This was rejected on the basis that the decision made was within the scope of the power conferred by the 1967 Act and was consistent with the purpose of the Act. The extent to which the Minister was open to criticism for exercising that power is not a matter for the courts.
5. Legitimate expectations – it was argued that there were two substantive legitimate expectations generated by ministerial assurances given in Parliament, namely that the Defendant would not designate a woman’s home as a place where termination of pregnancy would take place and/or that the change would not be introduced without the Defendant satisfying himself that there were adequate safeguards in place to protect vulnerable women/women in abusive relationships. It was further argued that a procedural legitimate expectation had been generated, namely that the Minister would not introduce any such changes without either a wide Parliamentary consensus or adequate Parliamentary scrutiny or debate. These assurances were said to have been given both in the 1990 debate referred to above, and in the more recent debate in March 2020.
The submissions were rejected. As noted above, the court found that the statements made in 1990 did not amount to a categorical assurance and, by extension, were not sufficiently clear, equivocal and/or without qualification such that a legitimate expectation could be generated. Furthermore, the statements were made in 1990 and outside the context of the COVID-19 pandemic. As to the more recent statements, they contained qualifications; it was made clear that discussions would continue with the relevant bodies and those discussions might give rise to changes in position.
6. Failure to take into account relevant considerations/conduct sufficient enquiries – It was argued that there was a failure to take into account relevant considerations, for example the risk that drugs would be re-sold on the black market, or prescribed before the 10 week cut-off but taken after the cut-off.
The court noted that ministerial submissions would never ordinarily include every piece of background information and that: “the omission of particular details will cause a submission to be “misleading” only if those details are so critical that, without them, the court cannot be confident that the Minister took into account every legally mandatory consideration. In that regard, it is well established that it is for the public authority to decide on the manner and intensity of the enquiry to be undertaken; and the court should intervene if, and only if, no reasonable authority could have been satisfied on the basis of the enquiries it made that it possessed the information necessary for its decision.”  The court noted that delaying a decision to gather more information could also have an impact on the public interest.
7. Failure to carry out public consultation – it was argued that the Secretary of State was under a common law duty to carry out a consultation with various stakeholders and/or the public prior to making the decision.
This was rejected on the basis that there was no statutory duty to consult and no common law duty to consult (save where a legitimate expectation had been generated). As to legitimate expectation, the Appellant had not established that there was a past practice of consultation which would give rise to an expectation of a consultation in the present context. In any event, the court found that the circumstances of the pandemic would have been sufficient to override past practice.
8. Breach of s.6 of the Human Rights Act – the court rejected the submission that the Claimant was a ‘victim’ within the meaning of the Act. In any event, the court went on to find at  to  that:
“the Claimant is in any event not able to point to anything in the Convention or the case law which would prevent the Secretary of State from designating a woman’s home as an approved place for the purposes of the 1967 Act.
It is not necessary to decide whether the Convention might ever confer rights on the unborn. Even if it does, it is impossible to see how the decision under challenge infringes any such rights. The decision was taken in 2018 to permit at least one aspect of an early medical abortion to take place in a woman’s home. All that the decision now under challenge does is to permit the woman concerned to take the other pill at home as well. There is no arguable breach of the ECHR in deciding to permit this to happen.”
Permission was refused but an appeal against this decision to the Court of Appeal is outstanding.