(back to preceding text)

    21. In reaching a conclusion that cell nuclear replacement is a process covered by section 1(1) of the Human Fertilisation and Embryology Act 1990 the Court of Appeal adopted a purposive approach: para 27. The extensive interpretation adopted by the Court of Appeal could only be justified by a purposive approach. It was a necessary step in the reasoning of the Court of Appeal but not a sufficient one. The Court of Appeal found the basis for such an approach in the fact that the Human Rights Act 1998 extended "the boundaries of purposive interpretation…where needs must". Given that the 1998 Act is not applicable in the present case I would accept the submission of counsel for the appellant that this approach is not appropriate. On the other hand, the adoption of a purposive approach to construction of statutes generally, and the 1990 Act in particular, is amply justified on wider grounds. In Cabell v Markham (1945) 148 F 2d 737 Justice Learned Hand explained the merits of purposive interpretation, at p 739:

"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, eg social welfare legislation and tax statutes may have to be approached somewhat differently. For these slightly different reasons I agree with the conclusion of the Court of Appeal that section 1(1) of the 1990 Act must be construed in a purposive way.

    22. That leads to the question whether it is appropriate to construe the 1990 Act in the light of the new scientific knowledge. In the case law two contradictory approaches are to be found. It reminds one of the old saying that rules of interpretation "hunt in pairs": that for every rule there is a rule to the contrary effect: see Burrows, Statute Law, 3rd ed (2003), p 277 and chapter 12 generally. In the older cases the view often prevailed that a statute must be construed as if one were interpreting it on the day after it was passed: The Longford (1889) 14 PD 34, 36. This doctrine was dignified by the Latin expression contemporanea expositio est optima et fortissima in lege. But even in older cases a different approach sometimes prevailed. It was the idea encapsulated by Lord Thring, the great Victorian draftsman, that statutes ought generally to be construed as "always speaking statutes". In the Court of Appeal, Lord Phillips of Worth Matravers MR cited the early illustration of Attorney General v Edison Telephone Co of London (1880) 6 QBD 244. The Telegraph Act 1869 gave the Postmaster-General an exclusive right of transmitting telegrams. Telegrams were defined as messages transmitted by telegraph. A telegraph was defined to include "any apparatus for transmitting messages or other communications by means of electric signals". When the Act was passed the only such means of communication was the process of interrupting and re-establishing electric current, thereby causing a series of clicks which conveyed information by morse code. Then the telephone was invented. It conveyed the human voice by wire by means of a new process. It was argued that because this process was unknown when the Act was passed, it could not apply to it. The court held "that absurd consequences would follow if the nature and extent of those powers and duties [under the Act] were made dependent upon the means employed for the purpose of giving the information": p 255. Another illustration is Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441 when Lord Diplock observed, at p 501 E-H:

"Unless the Sale of Goods Act 1893 is to be allowed to fossilise the law and to restrict the freedom of choice of parties to contracts for the sale of goods to make agreements which take account of advances in technology and changes in the way in which business is carried on today, the provisions set out in the various sections and subsections of the code ought not to be construed so narrowly as to force upon parties to contracts for the sale of goods promises and consequences different from what they must reasonably have intended. They should be treated rather as illustrations of the application to simple types of contract of general principles for ascertaining the common intention of the parties as to their mutual promises and their consequences, which ought to be applied by analogy in cases arising out of contracts which do not appear to have been within the immediate contemplation of the draftsman of the Act in 1893."

A third illustration is the case law which held that "bodily harm" in the Offences against the Person Act 1861 may be interpreted as extending to psychiatric harm which was unknown at the time of the passing of the legislation: R v Chan-Fook [1994] 1 WLR 689; R v Burstow [1997] 1 Cr App R 144, R v Burstow sub nom R v Ireland [1998] AC 147: see also McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, per Lord Bingham, at p 292; my judgment, at pp 295-296; Victor Chandler International Ltd v Customs and Excise Commissioners [2000] 1 WLR 1296, pp 1303-1305, paras 27-33 per Sir Richard Scott V-C.

    23. How is it to be determined whether a statute is an always speaking statute or one tied to the circumstances existing when it was passed? In R v Burstow, supra, the House of Lords held, at p 158:

"In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the 'always speaking' variety: see Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 for an example of an 'always speaking' construction in the House of Lords."

In response to a specific question counsel for the appellant did not contend that the 1990 Act falls in the exceptional category. Given its subject matter he was right not to do so. The result is that the 1990 Act may be construed in the light of contemporary scientific knowledge. This conclusion also does not solve the problem before the House. It does, however, make it possible to consider whether the new technique of cell nuclear replacement, despite the restrictive literal wording of section 1(1) of the 1990 Act, is covered by the Parliamentary intent.

    24. The critical question is how the court should approach the question whether, in the light of a new scientific development, the Parliamentary intent covers the new state of affairs. In a dissenting judgment in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 Lord Wilberforce analysed the position with great clarity. He observed, at p 822 B-E:

"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot be asking the question 'What would Parliament have done in this current case - not being one in contemplation - if the facts had been before it?' attempt themselves to supply the answer, if the answer is not be found in the terms of the Act itself."

(Emphasis added)

In Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 Lord Wilberforce's analysis was approved: see in particular Lord Slynn of Hadley, at 33F; Lord Nicholls of Birkenhead, at 45F; Lord Hutton, at 63F-64A; Lord Hobhouse of Woodborough, 67H-68A. The analysis of Lord Wilberforce can now be regarded as authoritatively settling the proper limits of the type of extensive interpretation now under consideration.

    25. In such a case involving the application of a statute to new technology it is plainly not necessary to ask whether the express statutory language is ambiguous. Since nobody suggests the contrary, I say no more about the point. Reference was made to authorities such as Jones v Wrotham Park Settled Estates [1980] AC 74 and Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, which deal with the limited circumstances in which a court may correct a clear drafting mistake. Here there was no drafting mistake. But in order to give effect to a plain parliamentary purpose a statute may sometimes be held to cover a scientific development not known when the statute was passed. Given that Parliament legislates on the assumption that statutes may be in place for many years, and that Parliament wishes to pass effective legislation, this is a benign principle designed to achieve the wishes of Parliament.

    26. The Master of the Rolls dealt with the primary argument in trenchant terms. He said (at para 38)

"To the question of whether it is necessary to bring embryos created by cell nuclear replacement within the regulatory regime created by the Act in order to give effect to the intention of Parliament, there can only be one answer. It is essential. There is no factor that takes embryos created by cell nuclear replacement outside the need, recognised by Parliament, to control the creation and use of human organisms. The consequence of Crane J's judgment is that anyone is free to create embryos by cell nuclear replacement and to experiment with these without limitation of time or any other restriction. There is no bar to placing a human embryo created in this way inside an animal. There is no bar to placing an animal embryo created in this way inside a woman. Until the Government intervened with the Human Reproductive Cloning Act 2001 it was legal to use the process of cell nuclear replacement to produce and use an embryo to create a human clone. It is clear that these results are wholly at odds with the intention of Parliament when introducing the 1990 Act."

I agree. I would summarise my reasons as follows. The long title of the 1990 Act makes clear, and it is in any event self-evident, that Parliament intended the protective regulatory system in connection with human embryos to be comprehensive. This protective purpose was plainly not intended to be tied to the particular way in which an embryo might be created. The overriding ethical case for protection was general. Not surprisingly there is not a hint of a rational explanation why an embryo produced otherwise than by fertilisation should not have the same status as an embryo created by fertilisation. It is a classic case where the new scientific development falls within what Lord Wilberforce called "the same genus of facts" and in any event there is a clear legislative purpose which can only be fulfilled if an extensive interpretation is adopted. As Lord Bingham has demonstrated the makeweight arguments based on the difficulty of applying some regulatory provisions to the new development cannot possibly alter the clear legislative purpose. In the result I would either treat the restrictive wording of section 1(1) as merely illustrative of the legislative purpose or imply a phrase in section 1(1) so that it defines embryo as "a live human embryo where [if it is produced by fertilisation] fertilisation is complete". If it is necessary to choose I would adopt the former technique. It fits readily into section 1(1) since the words of 1(1)(b) plainly make otiose the words "where fertilisation is complete" in section 1(1)(a). Treating the latter as merely illustrative requires no verbal manipulation.

    27. For my part I am fully satisfied that cell nuclear replacement falls within the scope of the carefully balanced and crafted 1990 Act.

    28. The alternative argument was based on section 3(3)(d) which provides that a licence cannot authorise "replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo". The argument was that the development of cell nuclear replacement is prohibited under section 3(3)(d). The Master of the Rolls observed that he could see no basis for arguing that an unfertilised egg, prior to the insertion of the nucleus by the cell nuclear replacement process, is required to be treated under the Act as if it is an embryo: para 51. I agree.

    29. For the reasons given by Lord Bingham of Cornhill and Lord Hoffmann, as well as the reasons I have given, I would also dismiss the appeal.

My Lords,

    30. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill, with which I agree. I gratefully adopt his statement of the facts and the relevant legislation.

    31. The issue in this appeal concerns the application of the 1990 Act to embryos produced by cell nuclear replacement in unfertilised eggs. I shall call them "cloned embryos". The creation of embryos by cloning was unknown at the time of the Act and the definition of an embryo in section 1(1), as well as certain other provisions, assumes that it will be created by fertilisation.

    32. The argument for the respondent is that the clear policy of the Act is to regulate the creation, keeping or use of embryos. Cloned embryos are embryos and therefore the Act should apply to them in the same way as to fertilised embryos. This involves treating some of the words in the definition and elsewhere in the Act as confined in their application to fertilised embryos and failing of reference in relation to cloned embryos. But that can be accommodated within the orthodox principles of construction explained by Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 822 and enables the court to give effect to the policy of the statute.

    33. Mr Gordon QC, in his admirably clear reply on behalf of the appellants, was inclined to accept that such a construction would be legitimate and proper if it was clear that the only relevant policy of the Act was to regulate the use of embryos. But he said that section 3(3)(d) disclosed another relevant policy, which was altogether to prohibit cloning. It is true that it referred only to replacing the nucleus of a cell of an embryo and not to cloning an unfertilised egg. But that was for the same reason as the definition of an embryo contemplated that it would have been fertilised: because cloning unfertilised eggs was unknown at the time of the Act.

    34. So Mr Gordon said that another approach to the construction of the Act would be to concentrate less upon the fact that cloned embryos were embryos and more on the fact that they were cloned. The policy shown by section 3(3)(d) means that one cannot simply assume that cloned embryos would have been regulated like ordinary fertilised embryos. They might have been prohibited like the cloning of fertilised embryos already in existence.

    35. My Lords, I can see that this argument might have created a genuine dilemma if Mr Gordon had been able to take the next step and put forward, as an alternative construction, a reading of the Act which brought cloned embryos within the prohibition in section 3(3)(d). It would then have been necessary to decide which of these alternative constructions was supported by the better arguments. But Mr Gordon, rightly in my opinion, felt unable to do so. Section 3(3)(d) does not prohibit cloning in general but only cloning when the host is an existing embryo.

    36. This left Mr Gordon having to say that one should not construe the Act as either regulating or prohibiting cloned embryos because one could not tell whether Parliament, if it had been aware of them, would have done one or the other. To make that choice was, he said, a legislative act. But, as Lord Wilberforce pointed out in the Royal College of Nursing case, a decision about whether a statute applies to unforeseen circumstances does not involve speculating about what Parliament would have done. It is a decision about what best gives effect to the policy of the statute as enacted. Even if it were as plausible to read the Act as prohibiting cloned embryos as it was to read it as regulating them, the one reading which would be entirely implausible and irrational would be to leave them neither prohibited nor regulated. The court has to choose between the other two constructions and as Mr Gordon acknowledges that section 3(3)(d) cannot be construed as applying to cloned embryos, it follows that they must come within the definition of embryos in section 1(1).

LORD MILLETT

My Lords,

    37. The primary question in this case is whether embryos created by the process of cell nuclear replacement ("CNR") are wholly outside the scope of the Human Fertilisation and Embryology Act 1990 ("the Act"). When the Act was passed the only known processes by which a human embryo could be created, including the process of nuclear substitution, took a fertilised egg as the starting point, and accordingly involved a degree of genetic manipulation. An embryo created by CNR, however, is not the product of fertilisation and does not involve genetic manipulation. This was a later development in embryology which was not foreseen by the Warnock Committee whose Report led to the passing of the Act or by Parliament when the Act was passed.

    38. The question is one of statutory construction. In construing a statute the task of the court is to ascertain the intention of Parliament as expressed in the words it has chosen. The Parliamentary intention is to be derived from the terms of the Act as a whole read in its context. Once it has been ascertained, the court must give effect to it so far as the legislative text permits.

    39. The search in every case is for what Parliament did intend, not what it would have intended had it foreseen later developments. In the present case the question is not whether Parliament positively intended to cover embryos produced by a process such as CNR which does not involve the use of a fertilised egg; it plainly did not, for it did not foresee the possibility. The question is whether Parliament intended to legislate only for embryos created by a process which does involve the use of a fertilised egg or whether it intended to legislate for embryos by whatever process they are created.

    40. The scope of the Act is to be found in section 1. Subsection (1) defines the word "embryo". It is in the following terms:

"1.-(1)  In this Act, except where otherwise stated -

(a) embryo means a live human embryo where fertilisation is complete, and

(b) references to an embryo include an egg in the process of fertilisation…."

    41. Before I turn to the proper construction of this subsection, I would make two general observations about the statutory scheme. First, as appears from the long title to the Act, it is an Act

"to make provision in connection with human embryos and any subsequent development of such embryos."

These are wide words in completely general terms. In themselves they are apt to refer to human embryos however created.

    42. Secondly, the Act not only makes provision for the licensing and regulation of the creation of embryos, but also for their subsequent use for treatment or research (section 3(1)). In particular it prohibits activities which Parliament evidently regarded as peculiarly objectionable, such as the placing in a woman of a live embryo other than a human embryo (section 3(2)(a)) and the placing of a human embryo in an animal (section 3(3)(b)).

    43. Now whatever may be the status of an organism created by CRN before its single cell has split into two, once it has reached the two-cell stage it is an embryo in every accepted sense of that term. In the case of a human embryo, it is a live human organism containing within its cell or cells a full set of 46 chromosomes with the normal potential to develop and, if planted in a woman, to become a foetus and eventually a human being. While there may or may not be good reasons for distinguishing between the different processes by which embryos may be created when it comes to regulating their creation, no one has been able to suggest a reason why Parliament should differentiate between the different processes when it comes to regulating their subsequent use. The placing of a human embryo in an animal is not the less abhorrent because the embryo was created by CNR.

    44. These considerations indicate to my mind that Parliament intended to make comprehensive provision for the protection of human embryos however created, and that the failure of particular provisions to capture embryos produced by a process not involving fertilisation is not because Parliament intended to leave them unregulated but because Parliament did not foresee the need to deal with them.

    45. With this introduction I can turn to the wording of section 1(1). The definition in para (a) is in part circular, since it contains the very term to be defined. It assumes that the reader knows what an embryo is. The purpose of the opening words of the paragraph is not to define the word "embryo" but to rather to limit it to an embryo which is (i) live and (ii) human. These are the essential characteristics which an embryo must possess if it is to be given statutory protection. The important point is that these characteristics are concerned with what an embryo is, not how it is produced. They are clearly necessary; the question is whether they are sufficient.

    46. The concluding words of the paragraph ("where fertilisation is complete") have a different function. They do not describe the essential characteristics of an embryo, and do not form part of the definition of the word "embryo". They merely indicate the stage of development which an embryo must reach before it qualifies for protection. They are obviously inapplicable to embryos created by a process which does not involve fertilisation, and accordingly say nothing about the status of such embryos.

    47. Para (b) is likewise inapplicable to embryos created by a process which does not involve the use of a fertilised egg. Its presence, however, makes the retention of the concluding words of para (a) puzzling. It is difficult to discern any reason why Parliament should take pains to exclude the application of the Act to embryos produced by the use of a fertilised egg while fertilisation is still incomplete by para (a) only to reapply it during the same period by para (b). It may merely be due to the fact that once a two-cell zygote emerges the organism is undoubtedly an embryo, whereas before that stage is reached its description as an embryo is more problematic and calls for a deeming provision.

    48. But it is more likely to owe its provenance to the vagaries of the Parliamentary process. Para (b) was introduced into the Bill at Report stage. Its evident purpose was to bring the protection of the Bill forward by some 30 hours from the completion of the process of fertilisation to its beginning. It cannot have been its purpose to reduce the scope of the Bill. In these circumstances I am satisfied that para (b) is also directed to the stage of development which an embryo must reach before it qualifies for the protection of the Act. Like the concluding words of para (a) it can have no application to embryos produced by a process which does not involve fertilisation and does not operate to cut down the scope of the opening words of para (a). In my opinion, this is where the essential definition of "embryo" is to be found, and it is defined by what it is and not by the process by which it is created.

    49. This construction does not require words to be written into the section. There is no gap to be filled by implication. Nor is it a matter of updating the meaning of the word embryo by reference to subsequent developments. It is simply a matter of giving the opening words of para (a) their natural meaning, recognising the function of the concluding words, and confining their operation to the case where they are capable of application. Once it is accepted that the embryo is defined by reference to what it is and not by reference to the process by which it is created, all need for updating falls away. The result is to bring within the regulatory scope of the Act embryos produced by a process which was unknown to Parliament when the Act was passed. But such embryos are in all respects save the method of their creation indistinguishable from other embryos. They are alive and human, and accordingly possess all the features which Parliament evidently considered make it desirable to regulate their use for treatment or research. A construction which allowed for the regulation of embryos produced by fertilisation and not of embryos produced without fertilisation would not only defeat the evident purpose of Parliament to make comprehensive provision for the creation and use of human embryos but would produce an incoherent and irrational regulatory code. While this could be the inevitable result of legislation enacted at a time of rapid technological development, a construction which leads to this result should not be adopted where it can be avoided.