British Pregnancy Advisory Service, R (On the Application Of) v Secretary of State for Health And Social Care

For the purposes of Abortion Act 1967, a pregnancy exceeds its twenty-fourth week at 24 weeks and 0 days, not at 24 weeks and 1 day. Clinical dating begins on day 0, so the twenty-fourth week runs from 23 weeks and 0 days to 23 weeks and 6 days. The statutory words have their natural and ordinary meaning where they are clear. A previous administrative interpretation, forms, statistics or clinical practice do not establish a settled contrary construction without ambiguity or legislative endorsement. A duty to consult does not arise on the correct construction of a statute where consultation could not affect the legal answer.

The claimant, a provider of abortion services, challenged the Secretary of State’s decision and accompanying letter of 23 July 2018 concerning the upper gestational limit for abortions under grounds C and D of the Abortion Act 1967. The Department stated that treatment had to be completed by 23 weeks and 6 days. The claimant contended that the phrase “the pregnancy has not exceeded its twenty-fourth week” permitted treatment at 24 weeks and 0 days.

The claimant alleged an error of statutory construction, misconstruction of the meaning of pregnancy, and procedural unfairness. The second ground was no longer pursued. The central issues were the meaning of the statutory time limit and whether consultation was required before issuing the clarification.

1. Construction. The words “the pregnancy has not exceeded its twenty-fourth week” are a matter of law and must be given their natural and ordinary meaning. “Exceed” means to be greater than or to go beyond. A pregnancy therefore exceeds its twenty-fourth week at 24 weeks and 0 days, from midnight on the expiration of the twenty-fourth week.
2. Clinical dating treats the first day of the last menstrual period as day 0. The first week accordingly includes days 0 to 6; the twenty-fourth week runs from 23 weeks + 0 days to 23 weeks + 6 days. At 24 weeks + 0 days the twenty-fourth week has expired. This construction was consistent with the clinical evidence and did not produce an unreasonable result.
3. The principle that courts should hesitate to disturb a long-settled statutory construction did not assist the claimant. The circumstances in Isle of Anglesey County Council v Welsh Ministers and Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs involved ambiguity and a long-standing practice supported by legislative or general acceptance. Here the parties agreed that the words were unambiguous, and the evidence did not establish a settled contrary construction.
4. No duty to consult arose. The correct construction of the statutory language was a legal question. If the Secretary of State’s construction was correct, the supposed benefit of treatment at 24 weeks + 0 days had been unlawfully conferred. In any event, the clinical and legal advice available to the Department meant that consultation could not have affected the legal interpretation.

Neither ground of challenge was made out. The claim was dismissed.