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

A statutory regulator exercising a discretionary power to enforce licence conditions may take into account the United Kingdom’s obligations under international law, including the Convention. The discretion does not require enforcement of every breach, even a breach of a statutory licence condition. A prosecuting authority may formulate and communicate a policy explaining how it will exercise its discretion in relation to a particular offence, provided it does not immunise future offending from prosecution. Courts should exercise particular caution before granting declarations by consent, especially declarations concerning substantive legitimate expectation where the relevant issues have not been contested.

The HFEA sought declarations concerning embryos stored at a licensed clinic after one gamete provider withdrew consent. The Court of Appeal had previously held that continued storage breached the statutory licensing scheme and that the statutory scheme did not contravene the Convention: Evans v Amicus Healthcare Ltd [2005] Fam 1. The European Court of Human Rights subsequently indicated under Rule 39 of its Rules of Court that the embryos should not be destroyed pending consideration of the application.

The issues were whether the HFEA could lawfully decide not to take regulatory action, whether the DPP could lawfully indicate how he would exercise his prosecutorial discretion, and whether the clinic was entitled to rely on those decisions by way of substantive legitimate expectation.

1. The court granted the first declaration. Under section 18 of the Human Fertilisation & Embryology Act 1990, the HFEA had a discretion whether to vary or revoke the clinic’s licence. That discretion was broad enough to permit consideration of the United Kingdom’s international law obligations under the Convention, including the obligation arising from the European Court of Human Rights’ indication. The Act did not require enforcement of every licence condition, even a statutory condition.

2. The court granted the second declaration. The decision to prosecute involved an evidential stage and a public-interest stage. Following R (on the application of Pretty) v DPP, the DPP could not promise immunity from prosecution for a future offence, but could formulate and communicate a policy identifying the criteria relevant to prosecution. The indication that prosecution would not presently be in the public interest, and that the relevant public-interest factors would continue to be weighed consistently absent a significant change of circumstances, was lawful.

3. The court declined the third declaration. Whether the HFEA or DPP would be legally fettered by what they had said involved issues and assumptions not tested in the proceedings. The clinic could rely on its own legal advice concerning the consequences of the statements.

4. The judge also expressed, without deciding the point, that if the European Court of Human Rights later found a Convention breach, domestic proceedings might be available to revisit the statutory construction and preserve the position pending effective reconsideration. This did not depart from the ordinary principles of precedent and reflected the public-law concern with abuse of process rather than automatic issue estoppel.

5. The first and second declarations were granted as amended. The third declaration was refused. The subsequent application concerning that refusal was declined; no question of principle or public importance arose.

The judgment states that the Court of Appeal had previously dismissed Evans v Amicus Healthcare Ltd [2005] Fam 1, holding that consent could be withdrawn under the statutory scheme and refusing a declaration of incompatibility. Leave to appeal to the House of Lords was refused. This was a first-instance decision concerning the consequences of the subsequent European Court of Human Rights proceedings.