APPENDIX 13
Memorandum from the Lawyers' Christian
Fellowship
INTRODUCTION
This submission is made on the basis of Paragraphs
1 and 4 of the Science and Technology Committee's Call for Evidence
in relation to Human Reproductive Technologies and the Law dated
30 March, 2004.
All statutory references are to the Human Fertilisation
and Embryology Act 1990 (the "1990 Act").
Unless otherwise indicated, all emphasis is
added.
EXECUTIVE SUMMARY
The Human Fertilisation and Embryology Authority
("Authority" or "HFEA") is a
public body established by statute to serve the public. However,
the HFEA misunderstands its functions, purports to perform functions
that are not within the 1990 Act, and indicates that it would
like to extend its jurisdiction even further.
The HFEA may have misunderstood its functions
because the wording of the 1990 Act is ambiguous.
Further, the HFEA's functions under the 1990
Act give rise to conflicts of interest. In particular, the HFEA's
function in relation to research compromises its ability to discharge
its other functions properly.
Due to the controversial nature and importance
of the HFEA's work, these matters should be addressed as a matter
of urgency:
— The wording of the 1990 Act should
be clarified so that there can be no doubts as to the functions
to be performed. These matters should be settled definitively
by Parliament and not left to the courts.
— These statutory functions should
be separated out and performed by separate independent bodies.
— There should be independent scrutiny
of each new body by way of internal systems supported by independent
scrutiny:
— Internally, what is required
is closer scrutiny at the lowest level possible, and as frequently
as possible. Each new body should have a compliance committee
comprised of legally qualified members who shall have the responsibility
of ensuring that every act has lawful authority.
— Externally, each new body should
be made accountable to a Parliamentary Select Committee advised
by a body whose members have significant expertise in bioethics,
law and medicine and are appointed by Parliament.
This will help to ensure that the public, especially
patients and donors, are properly served and protected.
SUBMISSION
The Authority misunderstands its functions and
exceeds its jurisdiction
1. The Authority is a public body established
by statute.[41]
2. Section 8 sets out the general functions
of the Authority:
(a) keep under review information about
embryos and any subsequent development of embryos and about the
provision of treatment services and activities governed by this
Act, and advise the Secretary of State, if he asks it to do so,
about those matters,
(b) publicise the services provided to
the public by the Authority or provided in pursuance of licences,
(c) provide, to such extent as it considers
appropriate, advice and information for persons to whom licences
apply or who are receiving treatment services or providing gametes
or embryos for use for the purposes of activities governed by
this Act, or may wish to do so, and
(d) perform such other functions as may
be specified in regulations. [42]"
3. Section 25 requires the Authority to
maintain a code of practice giving guidance, among others, about
the proper conduct of activities carried on in pursuance of a
licence under the 1990 Act.
4. Section 31 provides that the Authority
must keep a register of certain information obtained in relation
to activities performed under the 1990 Act.
5. Section 11 gives the Authority power
to grant licences for treatment, storage and research.
6. Schedule 1, Paragraph 2 provides the
Authority with a general power to perform its statutory functions:
"The Authority shall have power to do
anything which is calculated to facilitate the discharge of its
functions, or is incidental or conducive to their discharge, except
the power to borrow money."
7. However, wide though this general power
may be, it does not permit the Authority to create new functions
for itself or to extend the functions given to it by Parliament.
So the Authority may do anything (except borrow money) to perform
any of its functions under sections 8, 25 and 31, but it can do
no act outside of those functions in the absence of a specific
power. If it does, the Authority would automatically be exceeding
its powers.
The Authority misunderstands its statutory functions
8. In its Twelfth Annual Report and Accounts
2002-03[43]
(the "Annual Report"), Suzi Leather, the Chair
of the Authority, said this:
" . . . We must continue to be a watchdog
for patients, a guardian of Parliament's intentions, a
supporter of good clinical practice, a protector of disciplined
and lawful research and above all a protector of the interests
of all those whose births we have celebrated in this special year."[44]
9. It is not the Authority's role to be
a guardian of Parliament's intentions. That is the constitutional
role of our courts of law and, in certain circumstances, Parliament
itself. The Authority's role, as a public body created by statute,
is simply to perform Parliament's intentions as set out
in the 1990 Act.
10. Similarly, it is not the Authority's
role to be a substitute or supplementary parent, social services
department or child protection agency. Had Parliament intended
such, it would have made it clear in the 1990 Act.
The Authority has admitted that it is unsure about
its statutory functions
11. "The HFEA is constantly expanding
its communication programmes, making every effort to engage,
and seek the opinion of the general public, individuals and
professionals about its role in regulating fertility treatment."[45]
12. "The Authority believes that
it has a duty to provide easy access to up to date and accurate
information and give greater clarity and openness in HFEA policy
setting and operations."[46]
13. The Authority should know what its statutory
role is. The 1990 Act sets this out. If the Authority is unsure,
it should obtain legal advice.
The Authority exceeds its jurisdiction: specific
examples
Policy making
14. "The HFEA Corporate Plan was published
in June 2003 to outline the HFEA's strategic aims and objectives
for the five years 2004-09. The plan focuses on the HFEA's core
functions: regulation, policy development and communication
with patients and the public."[47]
15. There is no statutory basis for saying
that developing policy is a "core function" of the Authority.
Its core functions are set out in section 8 of the Act. The word
"policy" does not appear there or anywhere else in the
1990 Act.
Research
16. "The Authority encourages research
while ensuring that it is carried out responsibly and for
good reason."[48]
17. "Whilst not a research organisation,
continued public confidence and the need to provide patients with
information upon which they can make fully informed choices requires
the HFEA to take a lead in encouraging awareness and debate about
research and treatment involving human embryos; that it consults
widely; and that it communicates the outcomes of its consultations
effectively."[49]
This is not specified in the 1990 Act. To "keep
under review" is not the same as "to encourage".
"To encourage" means "1. to
inspire (someone) with the courage or confidence (to do something).
2. to stimulate (something or someone) by approval or help."[50]
However, "to review" means "1.
to look at or examine again: to review a situation
. . . 3. to inspect . . . ". "To examine"
means "to inspect or scrutinise carefully or in detail; investigate
. . . ". "To inspect" means "1. to
examine closely, esp. for faults or errors. 2. to scrutinise
officially (a document . . .)".
So "to keep under review" means "to
keep under careful scrutiny, especially for faults or errors".
So, if anything, the function of the Authority is to act as a
check on research rather than to encourage research in this area.
Providing information and advice
18. Another goal under the Authority's Corporate
Plan is "[d]eveloping an information base which meets
the needs of offspring and stakeholders, and the wider regulation
and public health functions".[51].
There is no statutory basis for saying that
it is one of the Authority's functions to meet the needs of wider
regulation and public health functions. Its regulatory function,
by definition, is limited to its own regulatory function, which
is limited to human fertilisation and embryology as set out by
the 1990 Act. It cannot, of its own accord, step outside or extend
its regulatory role and engage in "wider regulation".[52]
Similar comments apply to "public health functions".
19. "The Authority's other statutory
tasks are to . . . [p]ublicise the HFEA's role and provide
relevant advice and information to patients, donors and clinics
. . . "[53]
There is no statutory basis for this statement.
Section 8(b) provides that the Authority is to "publicise
the services provided to the public by the Authority or
provided in pursuance of licences", but it does not say that
the Authority is to publicise its own role. Publicising
its own role, rather than the services it provides, is doubly
damaging because, as has already been demonstrated, it has exceeded
its statutory role. It is telling the public that it has a wide
statutory role whereas in fact, its role is very limited. Consequently,
patients, donors and clinics would be misled into thinking that
Parliament had given the Authority more power and authority than
it in fact had.
Relations with the media
20. "The HFEA is currently developing
a communications strategy . . . This strategy recognises the need
for the HFEA to remain an accountable and open public body and
to work with other organisations to ensure that patient, service
provider, public and media interests are maintained and
promoted in the UK and in other countries where assisted conception
is not—as yet—regulated to the standards set in the
UK."[54]
Promoting media interests is not justified by
the 1990 Act. Such activities do not fall within the function
of publicising "the services provided to the public by the
Authority or provided in pursuance of licences" under s8(b)
or providing information and advice under s8(c).
The Authority indicates that it would like to
extend its jurisdiction even further
21. "Underlying all these activities
is the HFEA's determination to safeguard the interests
of patients, children, service providers, scientists and the wider
public."[55]
22. It is not the Authority's statutory
role to act as a safeguard to the groups mentioned in this statement.
Although it has not expressly declared that it will act as such,
this statement shows its determination to do so.
23. "Underlying all these activities is
the HFEA's desire to safeguard the interests of patients,
children, the general public, doctors, service providers,
the scientific community, and also future generations."[56]
24. This statement amplifies the previous
one. More groups are added. For example, "future generations"
is new wording. Again, this shows that the Authority would like
to have an increasingly expansive role.25. It is convenient
to set out the comments of the Chair of the Authority once again:
" . . . We must continue to be a watchdog for
patients, a guardian of Parliament's intentions, a supporter
of good clinical practice, a protector of disciplined and lawful
research and above all a protector of the interests of all those
whose births we have celebrated in this special year."[57]
26. Rather than be content to be a regulatory
body established and governed by statute, the HFEA would like
to be, inter alia, a body with much greater constitutional
significance.
PUBLIC LAW
ANALYSIS OF
THE AUTHORITY'S
MISUNDERSTANDING OF
ITS STATUTORY
FUNCTIONS
The rule of law
27. Parliament must be taken to have conferred
power on a public body subject to it being exercised on the correct
legal basis. The contrary proposition would be that Parliament
intended the public body to act unlawfully, which is not acceptable
as a matter of constitutional principle.
28. This principle, that public administration
must be conducted according to law, means that for every act performed
in the course of public administration there must be legal authority.
It is for the public body to prove that it has lawful authority
for what it does; it is not for third parties to prove the absence
of such lawful authority.
29. Acts of a public body that are outside
its functions or powers are ultra vires, unlawful and invalid.
Put simply, the public body would be breaking the law.
Public bodies must know their functions
30. The courts have held that a public body
"must understand correctly the law that regulates [its] decision-making
power and must give effect to it" [58].
If a public body misunderstands its duty, and that misunderstanding
leads the public body to misdirect itself in relation to a decision
or act, then that misdirection by itself renders the public
body's decision or act unlawful. [59]
Public bodies cannot extend their own jurisdiction
31. No public body has power conclusively
to determine the limits of its own jurisdiction. The House of
Lords has unanimously held that the "question of jurisdiction
. . . is a hard-edged question. There is no room for legitimate
disagreement. Either the [public body] had jurisdiction or it
had not. The fact that it is quite hard to discover the meaning
of [the relevant statutory provision] makes no difference . .
. a correct application of it to the facts of the case will always
yield the same answer. If the [public body] has reached a different
answer it is wrong, and the court can and must intervene"
[60].
Zeal does not excuse unlawfulness
32. The exercise of a power for an improper
purpose is invalid. Most instances of improper purpose have arisen
out of a mistaken interpretation by a public body of its power,
sometimes contributed to by an excess of zeal in the public interest[61]
THE WORDING
OF THE
1990 ACT IS
AMBIGUOUS
33. This is evidenced by the persistent
and sometimes admitted misunderstanding by the Authority of its
functions. The Authority's incorrect claims about its role could
only be explained by saying (1) the wording is clear and the Authority
knew what the 1990 Act meant but chose to ignore it; (2) although
the wording of the 1990 Act was clear, the distinguished members
of the Authority collectively misunderstood it; or (3) the Authority
reasonably misunderstood its functions because the wording of
the 1990 Act is ambiguous.
34. It is assumed that scenario (3) is the
correct interpretation of affairs. Given the importance and controversial
nature of the Authority's work, it is imperative that its functions
are set out in statute as clearly as possible. These matters should
be settled definitively by Parliament and not left to the courts.
CONFLICTS OF
INTEREST
35. Certain of the Authority's functions
under the 1990 Act give rise to conflicts of interest (whether
real, apparent or potential). In particular, the Authority's function
in relation to research compromises its ability to discharge its
other functions properly.
Regulation vs providing information and advice
36. On a matter such as sex selection, it
would be the Authority that would determine the nature and scope
of a consultation (appearing to have the ability to influence
the consultation in a particular direction) and then go on to
recommend to the Government whether or not sex selection should
be allowed. If the Government accepts the Authority's recommendations,
the Authority would then be responsible for regulating sex selection.
The Authority appears to be able to create work for itself. This
would seem dubious in the private sector. This should not be acceptable
as a matter of public administration.
Research vs membership
37. Under the 1990 Act, it is possible for
a member of the Authority to apply for a licence to conduct research
that could eventually result in great financial returns. Although
that particular individual is prevented, in general, from voting
in the decision whether or not to grant that licence[62],
it may appear to the public that the decision is a foregone conclusion.
Even worse, the Authority has the power to regulate its own proceedings[63],
and the provision which prevents the member from voting in the
decision whether or not to grant her the licence expressly subjects
itself to this power[64].
So the Authority can allow the member to vote on granting herself
a licence. This permits a clear and unacceptable conflict of interest.
Research vs keeping under review information on
embryos etc
38. The Authority is responsible for granting
licences authorising activities for the purposes of research.
It is also responsible for keeping under review information about
embryos and activities governed by the 1990 Act. This may explain
(without excusing) why it mistakenly believes that encouraging
research is one of its functions. The consequence of incorrectly
assuming this function potentially gives rise to the perceived
need to grant more licences for research or have the effect that
licences would be granted without rigorous scrutiny of the merits
of the research. That this possibility exists would be sufficient
to undermine public confidence in the Authority.
Research vs storage of gametes and embryos
39. Within the Authority's regulatory functions,
there is a danger of a conflict of interests. On the one hand,
the Authority is responsible for regulating the storage of gametes
and embryos and treatment services. But on the other hand, it
is charged with regulating activities for the purposes of research.
Conflict may arise, for example, where there is a shortage of
gametes and embryos required for the purposes of research. This
conflict of interest undermines the confidence of the public,
especially patients and donors.
RECOMMENDATIONS
40. In the light of the above, the 1990
Act should be amended in a number of ways.
Clarification of the wording of the 1990 Act
41. The wording of the 1990 Act should be
clarified so that there can be no doubts as to the functions to
be performed. This is not to say that the wording of the 1990
Act should be extended to cover the functions that the Authority
currently purports to perform. On the contrary, due to the controversial
and sensitive nature of human fertilisation and embryology and
the inclination of the Authority to exceed those functions that
are already set out in statute, any function to be performed by
a public body in this area should be as conclusively, as restrictively
and as clearly delineated as possible after full and proper debate
in Parliament. For the same reasons, section 8(d) (which allows
new functions to be specified by regulations) should be deleted.
Separation of functions and performance by independent
bodies
42. The statutory functions of the Authority
should be separated out and performed by separate independent
bodies (each a "New Body"). Each New Body should
only perform one of the functions set out in the 1990 Act so as
to avoid any conflict of interest. It would not be sufficient
that these functions be performed by different committees within
one body since they would not appear to be independent.
43. Each New Body should be named accordingly
so that its members and employees are constantly reminded what
its function is.
44. In particular, it is vital that responsibility
for regulating research on human fertilisation and embryology
be given to a body with responsibility for no other functions
(the "Research New Body"). This will obviate
the conflicts of interest described earlier.
Accountability and compliance
45. Analogous to the recommendations of
the First Report of the Committee on Standards in Public Life,
there should be independent scrutiny of each New Body by way of
internal systems supported by independent scrutiny.
46. Internally, there should be the closest
scrutiny at the lowest level possible, and as frequently as possible.
For each New Body there should be established a compliance committee
comprised of legally qualified members who shall have the responsibility
of ensuring that every act has lawful authority.
47. Externally, each New Body should be
subject to the intense scrutiny of a Parliamentary Select Committee.
This is because MPs are more directly accountable to the public
for safeguarding the public interest. However, this Parliamentary
Select Committee should be supported and advised by a body of
people who have considerable relevant expertise (in areas such
as bioethics, law and medicine) and who are appointed by Parliament
(as opposed to the Government) so as to secure public confidence.
CONCLUSION
48. It is worth being reminded that public
bodies exist to serve the public. The public are entitled to expect
public bodies and their officers to act competently and with lawful
authority, seeking to serve the public interest to the best of
their abilities.
49. It is hoped that the reform of the 1990
Act will reflect this.
May 2004
41 Section 5. Back
42
Halsbury's Statutes Annotations confirm that there have been
no regulations made for the purposes of section 8(d) up to 1 February
2001; confirmed up to 8 April 2003, by the 2003 Cumulative Supplement.
A search on the HMSO website on 26 May 2004, revealed that no
regulations have been made for the purposes of section 8(d) since
1st February 2001. Electronic searches on Westlaw, Lexis and JustCite
do not reveal any regulations made under section 8(d) up to 26
May 2004. Back
43
This can be obtained from http://www.hfea.gov.uk/HFEAPublications/AnnualReport. Back
44
Annual Report, p 2. Back
45
Annual Report, p 18. Back
46
Business Plan 2003-04 (the "Business Plan"),
paragraph 2.6. The Business Plan can be obtained from http://www.hfea.gov.uk/HFEAPublications/BusinessPlan. Back
47
Annual Report, p 6. Back
48
HFEA Leaflet "Embryo Research", Introduction,
page2. This may be obtained from http://www.hfea.gov.uk/HFEAPublications/HFEAleaflets. Back
49
Business Plan, paragraph 2.5. Back
50
All definitions in this part of the submission are from the Collins
Concise English Dictionary, Third Edition Back
51
Annual Report, p 6. Back
52
See paragraph 31 of this submission. Back
53
Business Plan, paragraph 1.3. Back
54
Annual Report, p19. Back
55
Annual Report, p 6. Back
56
http://www.hfea.gov.uk/AboutHFEA. Back
57
Annual Report, p2. Back
58
Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374, per Lord Diplock at 410. Back
59
"The Home Secretary misunderstood his duty. This misdirection
by itself renders his decision unlawful." (R v Home Secretary,
ex p Venables [1998] AC 407, 518-519, per Lord Steyn). Back
60
R v Monopolies and Mergers Commission, ex p South Yorkshire
Transport [1994] ECC 231, per Lord Mustill at 241. Back
61
See Constitutional and Administrative Law, 13th Edition,
Bradley and Ewing, p701. Back
62
Schedule 1, Paragraph 10(3). Back
63
Schedule 1, Paragraph 9(1). Back
64
"Except in such circumstances (if any) as may be determined
by the Authority under paragraph 9(1) above . . ." (Schedule
1, Paragraph 10(3)). Back
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