Divisional Court: Singh LJ and Leiven J , [2021] EWHC 2536 (Admin), 182 BMLR 1, 23 September 2021

This was an unsuccessful challenge based on numerous human rights grounds of the fact that the Abortion Act 1967 s1(1)(d) permits abortion at a later stage of foetuses if there is “a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. The claimants (persons with and the mother of a person with Down’s Syndrome) argued that it was impermissible to distinguish between pregnancies where there was a substantial risk that, if born, a child would be “seriously handicapped”, and those pregnancies where the risk of such “handicap” was smaller. They sought to rely on Articles 2, 3, 8 and 14 ECHR. The first of these failed on the grounds that the ECHR had never decided that a foetus was the bearer of Convention rights and had ruled in RR v Poland (2011) 53 EHRR 1047 that the decision whether or not to continue with a pregnancy fell within the scope of Article 8. They will not be further considered here. Of more direct relevance to this blog are the Article 14 arguments which the Court considered in some detail despite having found that the discrimination in issue did not in fact fall within the scope of Article 8.

At §138 the court (Singh LJ and Lieven J) set out the standard 4 stage approach to Article 14 as established by the ECtHR (Grand Chamber) in Carson v United Kingdom (Application no. 42184/05) (2010) 51 EHRR 13 §61, making reference at stage 4 to the state’s margin of appreciation which would “vary according to the circumstances, the subject matter and the background.”

It was common ground  that disability was a relevant status for the purposes of Article 14 and the Court was prepared to proceed on the basis that there was a difference of treatment of persons who are in an analogous position while pointing out that this “could not be the foetus itself” (§139). As to the third and fourth questions, the balance which had to be struck was that between the interests of the foetus and the rights of women (§141) and while disability was “potentially a ‘suspect’ ground”, Lord Reed had pointed out in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 §99 (see associated blog) that “the European Court’s approach is ‘nuanced’ and it is doubtful whether it can be comprehensively described by any general rule” and that it was “more useful to think of there being a range of factors which tend to heighten, or lower, the intensity of review. In any given case, a number of these factors may be present, possibly pulling in different directions, and the court has to take them all into account in order to make an overall assessment” (§99, cited at §142). At §141 the Court paraphrased Lord Reed at §100 as stating that “one particularly important factor is the ground of the difference in treatment. But … a much less intense review may be applied even in relation to some so-called ‘suspect’ grounds where other factors are present which render a strict approach inappropriate” and at §103 that “the Court’s statements that ‘very weighty reasons’ are required to justify a difference in treatment on a particular ground do not necessarily exclude the possibility that ‘a relatively wide margin of appreciation, and a correspondingly less intense standard of review, may nevertheless be appropriate in particular circumstances …’ (referring also to §115-116 of SC).

At §144 the Court stated that these “those considerations are particularly apt in the present context, where a very difficult balance has to be struck by Parliament between the interests of the foetus and the rights of women” concluding that “The judgement which Parliament has reached, in enacting s 1(1)(d) of the 1967 Act, falls within the margin afforded to Parliament”. At §146 it cited Lord Reed in SC to at §143: “where the European court would allow a wide margin of appreciation to the legislature’s policy choice, the domestic courts allow a correspondingly wide margin”.

Claimants: Jason Coppel QC and Emma McIlveen, instructed by Sinclairs

Defendant: James Eadie QC, Julia Smyth and Yaaser Vanderman, instructed by the Treasury Solicitor