The claimants, who were an adult with Down’s Syndrome, a child with Down’s Syndrome and the child’s mother, brought a claim for judicial review seeking a declaration under section 4 of the Human Rights Act 1998 that section 1(1)(d) of the Abortion Act 1967 was incompatible with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guaranteed the right to respect for private and family life. Section 1(1)(d) of the 1967 Act provided that a person would not be guilty of an offence under the law relating to abortion when a pregnancy was terminated by a registered medical practitioner if two registered medical practitioners were of the opinion, formed in good faith, that there was 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 contended that section 1(1)(d) of the Act gave rise to negative stereotyping which threatened the rights of disabled persons to identity and personal development, dignity and autonomy, and consequently it interfered with article 8 of the Convention. Furthermore, that interference was neither justified nor proportionate. In particular, (i) section 1(1)(d) did not satisfy the requirement in article 8(2) that any interference with a person’s private or family life had to be “in accordance with the law”, because it was framed in such general terms and it was not sufficiently foreseeable to what kinds of disability it applied. (ii) Section 1(1)(d) went further than was necessary in order to protect the interests of pregnant women and, largely because of its over-breadth, did not strike a fair balance between those interests and the interests of the foetus, other disabled persons and the interests of the community as a whole. The Divisional Court dismissed the claim for judicial review, holding that section 1(1)(d) did not interfere with the claimants’ article 8 rights.
On the claimants’ appeal—
Held, appeal dismissed. Section 1(1)(d) was not concerned with the group to which the claimants belonged—that was, those born with serious disabilities—and did not explicitly promote any negative stereotype about them: it was concerned only with the unborn. It was accepted that the claimants, and no doubt many other seriously disabled people, genuinely perceived that section 1(1)(d) “sent a message” that the lives of those who were in fact born with such a handicap were of lesser value: and that it therefore clearly, even if implicitly, disseminated a negative stereotype about the living disabled. From their perspective that perception was understandable. However, that was not the only possible perspective. Others drew a clear line at the moment of birth and denied that permitting the abortion of a foetus with a serious disability implied anything about the value of the lives of the living disabled. The truth was that whether section 1(1)(d) was perceived as sending any negative message about the living disabled depended on the perspective—itself no doubt reflecting the circumstances and values—of the particular individual. Its terms could not be equated with explicit or unequivocal statements. It followed that in those circumstances the enactment of section 1(1)(d) could not be said to constitute an interference by the state with the private lives of the claimants. Their perception, however genuine, that the present state of the law devalued them could not itself constitute or evidence such an interference: the interference had to derive from something in its terms or its effect which, applying an objective standard, unequivocally conveyed that message. The existence of a legal right could not depend solely on the subjective perception of the putative victim. It would have very undesirable consequences if the perceived implications of a statement or measure, rather than its explicit or otherwise unequivocal meaning, could constitute an interference with article 8 rights. Accordingly, section 1(1)(d) did nothing which directly impacted on the identity or self-worth of the living disabled and did not interfere with the claimants’ article 8 rights (paras 69–74, 82, 124, 125, 128, 129).
Jason Coppel KC and Bruno Quintavalle (instructed by Sinclairs Law) for the claimants.
Julia Smyth and Yaaser Vanderman (instructed by the Treasury Solicitor) for the Secretary of State.