Christian Concern, R (on the application of) v Secretary for Health and Social Care

The Secretary of State’s power under sections 1(3) and 1(3A) of the Abortion Act 1967 is broad enough to approve a class of places, including a pregnant woman’s home, where medical abortion treatment may be carried out in specified circumstances. The statutory requirement that pregnancy be terminated by a registered medical practitioner does not require the practitioner personally to administer every medicine. It is sufficient that the practitioner prescribes the treatment and remains in charge throughout.

A decision made under an express statutory power during a public health emergency was not constitutionally improper, irrational, or contrary to the statutory purpose. Parliamentary statements did not create an enforceable legitimate expectation where they were qualified and did not amount to clear, unequivocal assurances. There is no general common-law duty to consult, and urgent circumstances may justify proceeding without consultation.

Christian Concern sought judicial review of the Secretary of State’s approval dated 30 March 2020. The approval designated the home of a pregnant woman as a class of place where early medical abortion treatment involving Mifepristone and Misoprostol could be carried out, subject to specified conditions, including prior consultation and a gestation limit.

The claim was heard as a rolled-up hearing. The court had first to decide whether permission should be granted and, if so, the substantive claim. The grounds alleged that the approval was ultra vires the Abortion Act 1967, contrary to its legislative purpose, irrational, constitutionally or procedurally improper, inconsistent with legitimate expectations, made without sufficient enquiry or consultation, and incompatible with the Human Rights Act 1998 and the Convention.

1. Permission and outcome. The proposed grounds were not properly arguable. Permission to bring the judicial review claim was refused. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed.
2. Statutory power. Sections 1(3) and 1(3A) of the Abortion Act 1967 use broad language and permit approval of a place or class of places where treatment may be carried out. The issue concerned the scope of a statutory power, not an ambiguous statutory expression. Parliamentary statements were therefore not admissible under Pepper v Hart [1993] AC 593. In any event, the ministerial statements relied on did not amount to a categorical assurance that the power would not be exercised in the circumstances of the public health emergency.
3. The requirement that pregnancy be terminated by a registered medical practitioner did not mean that every step had to be performed personally by that practitioner. Following the majority reasoning in Royal College of Nursing v Department of Health and Social Security [1981] AC 800, the practitioner could prescribe the medicines and remain in charge throughout, while the patient took them herself. The reasoning in SPUC ProLife Scotland v Scottish Ministers [2019] CSIH 31 was persuasive. British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) supported, rather than contradicted, that conclusion.
4. Statutory purpose and rationality. Approving home treatment subject to medical consultation and prescription was consistent with the Act’s purpose, including avoiding unlawful and unregulated abortions. The decision was rationally open to the Secretary of State on the evidence of the effects of the pandemic on access to time-sensitive treatment. The court was not required to resolve competing expert opinions.
5. Constitutional grounds and legitimate expectation. The approval was made under an express statutory power and did not have the features identified in the two Miller cases. The statements relied on were qualified and lacked the clarity, unequivocality and absence of relevant qualification required by R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545. They could not bind a later government in changed circumstances.
6. Enquiries and consultation. The duty in Secretary of State for Education and Science v Tameside MBC [1976] AC 1014 did not require every item of background information to be included in a ministerial submission. The enquiry was sufficient under the approach summarised in R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673. There was no general common-law duty to consult, as explained in R (Moseley) v Haringey LBC [2014] UKSC 56, and any expectation based on past practice could in any event have been displaced by the need for urgent action.
7. Human rights. The claimant was not directly and personally affected and therefore faced a difficulty satisfying the victim requirement under Article 34 of the Convention and section 7(7) of the Human Rights Act 1998. In any event, no arguable Convention breach was established.

Not stated in the judgment.