Assisted Reproduction and Gynaecology Centre & Anor v The Human Fertilisation and Embryology Authority

The Human Fertilisation and Embryology Authority cannot make a varied licence condition take effect before completion of the statutory reconsideration process, including any appeal under section 20 of the Human Fertilisation and Embryology Act 1990. Notice of a licensing decision is procedural and does not itself determine when the decision takes effect.

A public authority must act fairly where its clear representations or established conduct have led a small group to expect that the existing position will continue. Before departing from that position, it must take the expectation and the relevant public interest into account and provide adequate reasons. Section 16(5) requires written acknowledgment of licence conditions, not acceptance of them.

The claimants, two fertility clinics, challenged the defendant’s decision to impose condition T123, which required compliance with maximum multiple birth rates. The challenge concerned the statutory licensing scheme under the Human Fertilisation and Embryology Act 1990.

The claimants argued that the condition could not take effect before completion of the representations and reconsideration process, that the decision had been taken by the wrong person, that the defendant had acted unfairly and breached a legitimate expectation, and that section 16(5) had not been complied with. The central issues were when a varied licence took effect and whether the defendant’s conduct was lawful and fair.

1. Grounds 1 and 3 succeeded. The defendant had no power under the Human Fertilisation and Embryology Act 1990 to impose a condition which took effect before completion of the full statutory process, including reconsideration under section 20.
2. The statutory scheme distinguishes a proposed decision, representations, the decision after representations, notification, and reconsideration. Regulation 17 of the Human Fertilisation and Embryology (Procedure for Revocation, Variation and Refusal of Licences) Regulations 2009 requires notification of the committee’s decision and reasons. It is a procedural step and does not govern when the decision takes effect.
3. The express provisions dealing with immediate suspension, particularly sections 19C(4) and 20(6), demonstrate that the statute makes specific provision where interim effect is intended. Section 24(5A) provides a possible mechanism for directions, but does not supply the certainty required to make a disputed variation effective pending appeal.
4. The Chief Executive was entitled to organise and issue the licences under the defendant’s Standing Orders. That administrative act did not, however, make condition T123 legally effective before completion of the statutory process.
5. The defendant’s earlier correspondence and conduct gave the clinics a clear and unambiguous assurance, directed to a small group, that the existing licensing position would continue until the appeal process had been completed. Applying Paponette and Others v Attorney General of Trinidad and Tobago [2010] UKPC 32, the defendant was required to take that expectation and any proposed departure from it into account.
6. The defendant failed to consider adequately its previous conduct, the fairness of imposing the condition during the pending appeal, the potential interference with clinical judgment, and the absence of a sufficient public-interest explanation for changing its position. The fair course was to retain the status quo until the appeal was determined.
7. Section 16(5) requires the licence conditions to be shown to and acknowledged in writing by the relevant person. It does not require acceptance of the conditions. The challenge on that ground therefore failed.

The court invited submissions on consequential orders and costs.