Heidi Crowter and Anor, R (on the application of) v The Secretary of State for Health and Social Care

For Article 8, a measure interferes with private life through negative stereotyping only where its terms or effect objectively and unequivocally convey a sufficiently serious message affecting group identity, self-worth or confidence. A statutory provision regulating abortion by reference to the unborn did not meet that threshold for people born with serious disabilities. The alleged message depended on perspective and subjective perception. Article 14 could not be invoked because the complaint fell outside the ambit of Article 8. Alternatively, the provision was in accordance with the law and proportionate. Parliament was entitled to a wide margin of judgement in this sensitive field. Whether and when abortion should be lawful on grounds of serious foetal disability was for Parliament, not the courts.

The appellants, both people with Down’s syndrome, challenged section 1 (1) (d) of the Abortion Act 1967. They argued that permitting abortion without a gestational limit where there was a substantial risk that the child would be seriously handicapped conveyed that disabled lives were less valuable. They claimed incompatibility with Articles 8 and 14 of the Convention and sought a declaration under section 4 of the Human Rights Act 1998.

The Divisional Court dismissed the claim: [2021] EWHC 2536 (Admin). Permission to appeal was limited to the Articles 8 and 14 grounds. The central questions were whether the provision interfered with the appellants’ private lives, whether any interference was in accordance with the law and proportionate, and whether the complaint fell within Article 14’s ambit.

1. The appeal was dismissed. Underhill LJ gave the leading judgment. Thirlwall LJ agreed. Jackson LJ agreed with the result and with the Vice-President on Grounds 2–4, but gave partly different reasons on Ground 1.
2. Article 8 private life can in principle be affected by sufficiently serious negative stereotyping of a social group. The court accepted the general approach in Aksu v Turkey [2012] ECHR 445 and its application in Lewit v Austria [2019] ECHR 719. However, section 1 (1) (d) of the Abortion Act 1967 concerned the unborn and did not expressly promote a negative stereotype about people born with disabilities. Whether it conveyed such a message depended on perspective. An objective and unequivocal message was required; subjective perception alone could not establish interference. The evidence showed genuine offence, but did not establish that the provision caused significant societal discrimination.
3. Jackson LJ considered that the seriousness threshold for interference was not crossed, having regard to the need to regulate abortion, the balance between pregnant women’s rights and the interests of the unborn, the democratic origin of the legislation, and the fact that the provision did not directly concern the appellants. Thirlwall LJ accepted that the provision was offensive to some disabled people but held that a woman’s lawful decision to terminate did not stigmatise the living disabled.
4. Alternatively, the court would have rejected the challenge under Article 8(2). The requirement that an interference be in accordance with the law is context-sensitive. In medical decision-making involving complex professional judgements, terms such as substantial risk and serious handicap could be sufficiently foreseeable. The statute did not require an exhaustive list of conditions or the more general statutory guidance proposed by the appellants. The court applied the realistic approach in R (Bridges) v South Wales Police [2020] EWCA Civ 1058 and Bright v Secretary of State for Justice [2014] EWCA Civ 1628.
5. On proportionality, the subject was a sensitive social, ethical and political question for Parliament. Parliament was entitled to a wide margin of judgement. The absence of a Convention obligation to permit a particular exception did not mean that legislation permitting it was unlawful. The reasoning in the NIHRC Supreme Court litigation concerned different rights and did not establish that the present legislation was prohibited. The proportionality challenge would therefore have failed.
6. Article 14 was not engaged because the complaint did not fall within the ambit of Article 8. The unborn were not Convention rights-holders, and the appellants could not establish differential treatment within the ambit of another Convention right. The court stressed that the underlying policy question was for Parliament; the judicial question was only whether the legislation breached the appellants’ Convention rights.

• Court of Appeal (Civil Division): appeal dismissed. The court upheld the Divisional Court’s dismissal of the judicial review claim.
• Divisional Court, King’s Bench Division: claim dismissed under [2021] EWHC 2536 (Admin).