Christian Concern, R (On the Application Of) v Secretary of State for Health And Social Care

Under the Abortion Act 1967, the requirement that a pregnancy be terminated by a registered medical practitioner does not require that practitioner personally to perform every step. The practitioner must prescribe the treatment, retain responsibility and remain in charge throughout. The meaning of treatment is context-sensitive and must reflect developments in medical science and practice. The power to approve a class of places for treatment with specified medicines and in a specified manner is broad enough to include a pregnant woman’s home. An approval made during a public-health emergency may promote the statutory purpose by preserving safe, regulated access and reducing the risk of unregulated abortions. Parliamentary material cannot be used where the statutory language is clear.

The Secretary of State approved the homes of pregnant women and registered medical practitioners as classes of place for early medical abortion treatment under sections 1(3) and 1(3A) of the Abortion Act 1967. Christian Concern sought judicial review, arguing that home administration meant the pregnancy was not terminated by a registered medical practitioner and that the approval frustrated the Act’s purpose. The Divisional Court refused permission in [2020] EWHC 1546 (Admin). The Court of Appeal granted permission on grounds 5 and 6, concerning statutory construction, legislative purpose and the admissibility of Parliamentary material. The appeal also raised an application to adduce further evidence.

1. Further evidence. The application under CPR 54.16 was refused. The first witness statements were immaterial to the lawfulness of the decision. The mystery-shopper survey was served late, involved false information and subterfuge, lacked a control group and was inherently unfair and unreliable. The NHS email acknowledged serious incidents but did not advance the issues in the appeal.
2. Role of the registered medical practitioner. The approach in Royal College of Nursing v Department of Health and Social Security [1981] AC 800 does not require an RMP personally to perform every act forming part of the treatment. The RMP must prescribe the treatment, accept responsibility and remain in charge throughout. SPUC Pro-Life Scotland v Scottish Ministers [2019] CSIH 31 correctly treated the meaning of treatment and the degree of control required as matters of context and fact and degree. Medical science, medical practice, technology and prevailing conditions must be considered.
3. The 2018 approval permitting the second medication to be taken at home was not challenged in England and Wales, and a similar Scottish challenge had failed. There was no good evidence that taking the first medication at home was materially less safe. Section 1(3A) of the Abortion Act 1967 permits approval of a wider class of places, including a home, for treatment involving specified medicines and a specified manner. The RMP remained in charge throughout, so there was no conflict between sections 1(1) and 1(3).
4. Legislative purpose. The statutory power is broadly phrased. A woman’s home may be suitable for the specified purpose of taking the medication. The temporary approval, made during an acute public-health emergency, promoted rather than frustrated the Act’s purpose by preserving regulated access, reducing travel and avoiding later or unregulated abortions.
5. Parliamentary material. The statutory language was not ambiguous, obscure or absurd, so the threshold in Pepper v Hart [1993] AC 593 was not met. Statements about the future exercise of a statutory power did not amount to a categorical assurance of the kind described in R (Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 349. The alternative grounds therefore failed. The appeal was dismissed.

• Court of Appeal (Civil Division): Permission was granted on grounds 5 and 6. The appeal against the refusal of permission for judicial review was dismissed.
• Divisional Court: Singh LJ and Chamberlain J refused permission to bring the judicial review claim in [2020] EWHC 1546 (Admin).