QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) THE ASSISTED REPRODUCTION AND GYNAECOLOGY CENTRE (2) THE REPRODUCTIVE GENETICS INSTITUTE |
Claimants |
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THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY |
Defendant |
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Alan Maclean QC (instructed by Field Fisher Waterhouse LLP) for the Defendant
Hearing dates: 3 October 2013 and 4 October 2013
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Crown Copyright ©
Mrs Justice Patterson :
i) That the 1990 Act does not empower the defendant to impose an effective condition on a licence prior to completion of the statutory reconsideration process;ii) If there is a power the decision about when a new condition takes effect must be taken by the Licence Committee (LC) or the Executive Licensing Panel (ELP) which was not the case here;
iii) Even if the defendant has the power to impose an effective condition it must exercise that power in accordance with public law principles. Here, the defendant's decision is not rational or fair and it is in breach of a legitimate expectation that the claimant had;
iv) That the requirements of section 16(5) of the 1990 Act have not been complied with.
Background
"The HFEA maintains its position that its decision to offer Special Directions to the ARGC, as opposed to a short term licence, was entirely lawful and proportionate, as per Mrs Justice Lang's Order of 13 July 2012. However, the HFEA is mindful that the adjournment on 16 July inevitably means that what was intended as a short term measure may now persist for a longer period. In those circumstances, although you will of course appreciate that the formal granting of any licence would be a matter for a Licence Committee or the Executive Licensing Panel (ELP"), it is prepared to consider offering the ARGC a short term licence without condition T123 on the following terms:
"This licence shall remain in force until the sooner of:
(a) the date the Person Responsible accepts the offer licence offered on 6 June 2012;
(b) until a decision is made in relation to the current representations, or in respect of any appeal subsequently made by the Person Responsible should his representations not be successful and he exercises his right to reconsideration, or
(c) 30 November 2012."
The claimant replied on the 1st August 2012 stating:
"We fail to see what power your client has to offer the ARGC a licence with such precise terms, dates and conditions, and it is of concern that your client is apparently able to steer the Executive Licensing Panel (or any other committee) in this way. Notwithstanding this, the terms of your speculative proposal are in themselves acceptable but for the proposed date of the 30 November at paragraph (c) of the draft. We do not believe that it is realistic to anticipate that the licensing and appeals process will be resolved by this date (not least because a licence committee is yet to be assembled) and we would propose 31 March 2013 as an alternative. If a licence is offered imminently and with this variation, our clients would be willing to withdraw their claim for judicial review on the condition that the HFEA pays their reasonable costs to date."
"As our earlier letter made clear, the grant of such a licence is a matter for the Executive Licensing Panel but the Executive is offering to invite ELP to consider granting such a licence.
In view of the issues set out above the HFEA would be willing to agree to suggest that the period be until 31 March 2013 and accordingly the recommendation would be for a licence on the following terms:
"This licence shall remain in force until the sooner of:
a) The date the Person responsible accepts the offer licence offered on 6 June 2012,
b) Until a decision is made by an HFEA Committee in relation to the current representations, including any consideration by the Appeal Committee, or
c) 31 March 2013"
"9. The Panel agreed to the Inspectorate's recommendation and to offer a short-term licence, based on the conditions applying to the last accepted licence. This short-term licence, if accepted, would apply from the expiry of the current Special Directions on 1 October 2012 to no later than 31 March 2013. The Panel noted that this seemed not to be what either the PR or the Inspectorate wanted. Therefore, this would only be used if needed and would serve to keep the centre licensed should the offer licence not be accepted."
The licence was duly sent to Mr Taranissi.
"Having listened to and weighed all of the arguments including but not limited to those outlined above, we are persuaded that the proposed condition and the policy of the HFEA in imposing it is reasonable as well as being transparent; accountable; proportionate; consistent; and targeted. Further we are of the view that the HFEA has discharged the burden upon it and has established that it is necessary and appropriate that condition T123 should be imposed upon the licences of the two centres under consideration."
"Thank you for your email. The ARGC's current short term licence will not be extended. After the current short term licence expires on 31 March 2013, the ARGC will operate under the licence which has been granted to Mr Taranissi (which was offered to Mr Taranassi on 6 June 2012) I sent a copy of this licence to Mr Taranassi on 26 March 2013..."
"You have offered no explanation as to why the HFEA did not follow their usual practice when they sent offers of licences to the ARGC and RGI on 26th March 2013. Our client has not accepted or written to acknowledge the proposed licences for ARGC and RGI as required by section 16 (5)"
Statutory Framework
"Licences under paragraph 1 of schedule 2 to this Act authorising activities in the course of providing treatment for services."
Schedule 2 provides, inter alia, that a licence shall be granted for a period not exceeding 5 years as may be specified in the licence: paragraph 1 (5) .
"S16(1) The Authority may on application grant a licence to any person if the requirements of subsection (2) below are met."
"That the Authority is satisfied that the character of that individual is such as is required for the supervision of the activities and that the individual will discharge the duty under section 17 of this Act."
S. 16(3) provides that the grant of a licence to any person may be by way of renewal of a licence granted to that person, whether on the same or different terms.
s.16(5) provides that The Authority shall not grant a licence unless a copy of the conditions to be imposed by the licence has been shown to, and acknowledged in writing by, the applicant and (where different) the person under whose supervision the activities are to be carried on. "
"s.18 A (5) The authority may vary a licence without an application under subsection (2) by—
a) removing or varying a condition of the licence, or
b) Adding a condition to the licence."
"(1) Before making a decision—
(a) to refuse an application for the grant, revocation or variation of a licence, or
(b) to grant an application for a licence subject to a condition imposed under paragraph 1(2), 1A(2), 2(2) or 3(6) of Schedule 2,
the Authority shall give the applicant notice of the proposed decision and of the reasons for it.
(2) Before making a decision under section 18(2) or 18A(3) or (5) the Authority shall give notice of the proposed decision and of the reasons for it to—
(a) the Person Responsible, and
(b) the holder of the licence (if different).
(4) A person to whom notice is given under subsection (1), (2) or (3) has the right to require the Authority to give him an opportunity to make representations of one of the following kinds about the proposed decision, namely—
(a) oral representations by him, or a person acting on his behalf;
(b) written representations by him.
(5) The right under subsection (4) is exercisable by giving the Authority notice of the exercise of the right before the end of the period of 28 days beginning with the day on which the notice under subsection (1), (2) or (3) was given."
"19A Notification of licensing decisions"
(4) In the case of any other decision to vary a licence, the Authority shall give notice of the decision to—
(a) The Person Responsible, and
(b) The holder of the licence (if different)
(6) Subject to subsection (7), a notice under subsection (2), (4) or (5) shall include a statement of the reasons for the decision"
"(2) Where the Authority decides to vary or revoke a licence, any person to whom notice of the decision was required to be given (other than a person who applied for the variation or revocation) may require the Authority to reconsider the decision.
(3) The right under subsections (1) and (2) is exercisable by giving the Authority notice of exercise of the right before the end of the period of 28 days beginning with the day on which notice of the decision concerned was given under section 19A."
If a suspension notice is challenged the Act provides that the suspension will continue in force notwithstanding the giving of any notice: section 20 (6) .
"Directions may make provision for the purpose of dealing with a situation arising in consequence of—
(a) the variation of a licence, or
(b) a licence ceasing to have effect."
The Claimant's Case
Ground One
Discussion
i) The requirement under regulation 17(2) of the Human Fertilisation and Embryology (Procedure for Revocation, Variation or Refusal of Licences) Regulations 2009 is, in my judgment, one of notification of the decision made by the LC only. It is a procedural step. It does not deal with the coming into effect of the decision made.ii) It is quite right that there is a distinction between an initially proposed decision notified under s 19(1) and the final decision notified under section 19A but the sections deal with the procedural development of the decision making process and not with the coming into effect of the decision made.
iii) It was submitted that upon the claimants' case the completion of the statutory process must be upon determination of a challenge in the High Court when that is made under section 21. I disagree. The nature of such an appeal to the High Court is entirely different. It is on a point of law only and by way of a review hearing. It is a different form of challenge to that which is invoked under section 20 which is a complete rehearing on the merits.
iv) It was submitted, further, that the claimants' construction led to uncertainty as if an appeal was lodged and then withdrawn under section 16 (4), how did one know when the first instance decision took effect? There was no mechanism in the Act for it doing so. That strikes me as an illusory point. Upon withdrawal of an appeal all the statutory steps have been taken by way of notification of the first instance decision and the appeal process had been engaged but aborted. Upon that event the post representations decision will become final. That is entirely different to when there is the prospect of an appeal process to be invoked with all the uncertainty that that entails.
v) It was submitted that the shift in the burden of proof in the appeals process on a rehearing so that the appellant has to demonstrate why the condition should not be imposed was supportive of the defendant's interpretation. I do not see that where the burden of proof lies in the appeal is relevant to when the final decision becomes absolutely final and takes effect. The regulations are dealing with the processes to be followed on appeal and no more and no less than that.
Ground Two
"6.3 Licensing Functions
6.3.1 The authority shall establish and maintain an ELP composed of staff employed by the Authority.
6.3.2 The Authority delegates to the Executive Licensing Panel:
a) The exercise of its routine licensing functions, as set out in annex B to these Standing Orders as amended from time to time by the Authority; and
b) The power to issue directions under section 24(5A) to (5E) and section 24(13) of the Act.
6.3.3 The Executive Licensing Panel shall be constituted and shall operate in accordance with the Executive Licensing Panel Protocol set out in annex C to these Standing Orders.
6.3.4 In accordance with Section 9A(2) of the Act, the Authority shall establish and maintain a Licence Committee which will include Member(s) of the Authority and such additional Committee Member(s) as the Authority considers necessary.
6.3.5 The Authority delegates to the Licence Committee:
a) The exercise of its novel, complex or controversial licensing function, as set out in annex B to these Standing Orders as amended from time to time by the Authority; and
b) The power to issue directions under section 24(5A) to (5E) and section 24(13) of the Act
6.3.6 Save when considering representations under Section 19(4) of the Act, the Licence Committee shall be constituted and shall operate in accordance with the Licence Committee Protocol set out in annex D to these Standing Orders.
6.3.7 When considering representations under Section 19(4) of the Act, the Licence Committee shall be constituted and shall operate in accordance with the Human Fertilisation and Embryology (Procedure for Revocation, Variation or Refusal of Licences) Regulation 2009 (as amended)."
Reconsideration of licensing decisions is considered within section 6(4) of the Standing Orders which reads:
"6.4 Reconsideration of licensing decision
6.4.1 In accordance with section 20A of the Act, the Authority shall establish and maintain an Appeals Committee.
6.4.2 The Authority delegates to the Appeals Committee the power to carry out its functions under section 20 of the Act.
6.4.3 The Appeals Committee shall be constituted and shall operate in accordance with the Human Fertilisation and Embryology (Appeals) Regulation "
"53. On 25 March 2013, the parties received the Licence Committee decision, which rejected Mr Taranissi's representations and decided that Condition T123 should be imposed upon the ARGC and RGI's licences.
54. Given the terms of the ARGC's short term licence, as approved by the ELP on 24 September 2012, I understood that the ARGC's short term licence would expire on 31 March 2013. This was Easter Sunday and so it was important to address the ARGC's licence position urgently and by Thursday 28 March 2013 at the latest, as Friday 29 March was not a working day. (I would note that there was no such urgency in December 2011 following the Licence Committee's earlier, quashed decision.)
55. I discussed the matter with the Authority's Legal Adviser and its Director of Compliance on the morning of 26 March 2013. Given the decision of the Licence Committee, I understood that the proposal to vary the RGI's licence had now been determined so as to now include Condition T123.
56. In relation to the ARGC I also considered that the issue of the inclusion of Condition T123 in its licence had been resolved. I understood that the four year licence which had been offered to Mr Taranissi in June 2012 could now take effect as the outstanding dispute about Condition T123 had been dealt with via the representations process. My view was that licences in the terms offered to both centres in 2011 (and again to the ARGC in 2012) should now apply to the two centres. Confirming this in writing to the centres appeared to be the appropriate and lawful way of dealing with the impending expiry of the short term licence.
57. There was no reason to think that the Authority was compelled to do anything else. We were not obliged under the Act or the terms of the short term licence) to offer the ARGC another short term licence without Condition T123. I understood that the Authority would have had power to offer either a further short term licence or Special Direction in these terms but I did not believe this was the appropriate route.
58. Mr Taranissi had not given notice of his intention to exercise his right to appeal by this stage, nor had he indicated that he would not accept the Licence Committee's decision. Whilst I realised that he might well exercise his right to appeal, I did not consider our decision making should presume an appeal was inevitable and I did not consider that there was any obligation on the Authority to make an arrangement covering the 28 day period in which he could exercise his right to appeal, or covering any period pending the determination of any appeal.
59. The internal discussion which took place on March 26 2013 included consideration of whether we needed to schedule an ELP meeting. (There was no ELP meeting scheduled that week.) My view was that this was unnecessary as the decision that Condition T123 should be included in the licence of the ARGC and the RGI had already been taken by the Licence Committee. I could not see what the ELP could be asked to do in the light of this. The task now was to put the decision of the Licence Committee into administrative effect by issuing the licences.
60. In reaching this decision, Nick Jones (Director of Compliance) and I were also conscious that the rest of the sector had been operating with Condition T123 on their licences since 2011 and that there were important public policy reasons for this condition. Weighing up our responsibilities to act in the public interest, whilst considering the interest of Mr Taranissi's clinics, Nick and I were firmly in the view that the balance now tipped in the favour of the need to have the condition in place. "
The defendant submits that that shows no error of approach.
Discussion
"17.— Decision of the committee"
(1) The committee shall provide the notice referred to in section 19A (2) to (5) of the Act, in writing, together with a statement of its reasons for the decision, no later than 7 days after the date on which it has made its decision.
(2) The committee may serve notice of its decision, and the statement of its reasons for that decision, on any other person whom it considers, in the public interest, ought to be informed of the committee's decision.
(3) When serving the notice referred to in section 19A of the Act, the committee shall at the same time serve a written record of—
(a) Any advice tendered by a legal, clinical, scientific or specialist adviser;
(b) any rulings on admissibility of evidence made by the committee.
"Those functions of the authority which have not been reserved by the authority or delegated to the chair or committee or working group of the authority shall be exercised by the chief executive on behalf of the authority"
6.7.2:
"The Chief Executive shall determine which functions he/she will perform personally and shall nominate officers to undertake the remaining functions for which he/she will retain accountability to the authority."
Ground Three
i) There must be an undertaking which is clear, unambiguous and devoid of relevant qualification;ii) The undertaking can derive from a representation or a course of conduct;
iii) Whether there is such an undertaking is ascertained by asking how, on a fair reading, the representation or course of conduct would be reasonably understood by those to whom it is made. That involves a consideration of the context;
iv) The smaller the group of recipients the better the chance of establishing a legitimate expectation : see R (on the application of Bhatt Murphy and others) v Secretary of State [2008] EWCA Civ 755 paragraph 46;
v) Detrimental reliance is not an essential component, see Paponette and Others v Attorney General of Trinidad and Tobago [2010] UK PC 32 at paragraph 27;
vi) To justify frustration of a legitimate expectation the decision maker must take it into account as a legitimate expectation: see Paponette (supra at paragraphs 45-47);
vii) Once an expectation is established the burden switches to the public authority to identify the public interest which justifies overriding that expectation: see Paponette (at paragraphs 37, 38 and 42);
viii) The question of whether there is a public interest which overrides the legitimate expectation is for a court to decide, it is not a matter of Wednesbury review.
"Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured. Lord Templeman in Preston referred (866 – 867) to "conduct [in that case, of the Commissioners of Inland Revenue] equivalent to a breach of contract or breach of representations"."
Discussion
"The position is different where, properly understood, a promise is only for a limited period. If it is for a specified limited period then once that period has expired the promise ceases to bind. The promise may also be subject to an implication that it is for no more than a reasonable period. In that event once a reasonable period of time has elapsed the promise ceases to bind."
He continued in paragraph 46:
"Where an authority is considering whether to act inconsistently with a representation or a promise which it has made and which has given rise to a legitimate expectation, good administration as well as elementary fairness demands that it takes into account the fact that the proposed act will amount to a breach of the promise. Put in public law terms, the promise and the fact that the proposed act will amount to a breach of it are relevant factors which must be taken into account."
Section 16(5)
Discussion
Conclusion
Note 1 Strictly JR2 as an earlier challenge CO/2025/2011 was brought which challenged the defendant’s on going failure to conclude a review of its actions against the claimants and the PR and to provide a copy of the investigation report. The action was withdrawn by consent on 18.2.13. [Back]