Grayling's Red Herring – Human Rights, IVF and Prisoners
One of the more persistent criticisms levelled against the HRA/ECHR is that it creates a right for prisoners to artificial insemination. For instance, Priti Patel MP has argued that ’Strasbourg-based European institutions have grown in power and the European human rights system they have created has resulted in the powers of our Parliament being eroded … they give criminals gold-plated rights, such as allowing prisoners access to IVF treatment.’ Indeed, the Lord Chancellor Chris Grayling is so concerned by prisoner IVF that he has recently instigated a review of the practice noting: ‘I am extremely concerned about prisoners having access to artificial insemination, which is why I am reviewing the policy with a view to banning it … There can be no clearer example of why we need changes to the human rights framework.’ (Daily Mail, 27/3/13) However, this issue is something of a red herring.
The use of artificial insemination by prisoners is not something new and predates both the Human Rights Act and the decision of the European Court in Dickson v UK  ECHR 44362/04. The policy of the then responsible Home Office (now Ministry of Justice – MOJ) was outlined in R v Secretary of State for the Home Department exp Mellor  EWCA Civ 472, at para 16: ’The long standing policy of the Prison Service on the grant of artificial insemination (AI) for prisoners and their partners is that these facilities will normally be refused unless there are exceptional circumstances to justify otherwise.’ [See also Mellor, para 59] A prisoner needed to show that the deprivation of artificial insemination facilities might prevent conception altogether. Thereafter, a prisoner applying for IVF needed to also demonstrate that the circumstances of their case were ‘exceptional’. Whether exceptional circumstances existed in a particular case was decided by the Home Office. [Mellor, paras 18-19].
In Mellor the Court of Appeal decided that this approach was both lawful and Convention compatible. Any infringement of family rights under Article 8(1) by an application of the policy would be justified both by the upbringing a resulting child would enjoy in light of the circumstances and length of the sentence and more generally public opinion. ‘A policy’, concluded Lord Phillips MR, ‘which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’ (Mellor, para. 66)
After the HRA came into force the policy was challenged once more by Kirk Dickson, a murderer, and his wife. Dickson and his wife would not be able to conceive without IVF. Mrs Dickson was born in 1958 and would be unlikely to conceive after her husband’s earliest possible release date, 2009. The High Court and the Court of Appeal ( EWCA Civ 1477) both dismissed Dickson’s application for judicial review of the Home Secretary’s policy. Dickson petitioned the European Court of Human Rights.
In Dickson  ECHR 44362/04 the Grand Chamber held that the application of the policy in the applicant’s case constituted an infringement of Article 8. In doing so it made a number of important points. First, prisoners continue to enjoy the guarantee of human rights, save those not removed expressly or by necessary implication as a consequence of imprisonment. Second, the Article 8 guarantee, the right to a family life, was applicable in this context notwithstanding the incarceration of the applicant though it could be limited under Article 8(2). Third, even though the state may act to secure public confidence in the penal system it may not automatically remove prisoners’ rights as a sop to public opinion. Fourth, the policy was implemented via the Prison Rules. It was not the considered weighing of the issue by Parliament in legislation. The policy was to be afforded less deference as a result. Fifth, there was no European consensus on the issue, although over half the members of the Council of Europe afford prisoners varying degrees of conjugal rights. Sixth, the domestic courts had not effectively scrutinised the decision. And finally the Court held that:
‘the policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the convention.’
In Dickson the European Court held that in applying the policy of deciding if exceptional circumstances existed the authorities set the bar at such an unreasonable level that the prospect of success were nigh on impossible. There was no proper balancing of the private and public interests that Article 8 required.
Following Dickson the policy was revised though not rigorously as the MOJ argued that ‘only minor amendments were required to bring the former policy into line with the judgment.’ These minor changes aside the policy remains broadly what it was before the Grand Chamber’s judgment in Dickson, although permission is no longer limited to exceptional circumstances. The Secretary of State will consider each case on its merits and no single factor will be weighed more heavily than another. The list of factors to be taken into account was largely the same as the old one. The Parliamentary Joint Committee on Human Rights was rightly highly critical of the MOJ’s position, noting that the list included matters that the Court had deprecated. But as with prisoner voting the MOJ’s subsequent course of action has been largely inaction.
Thus even before the HRA came into force IVF was available to prisoners albeit in exceptional circumstances. The policy in this area has always been one of limitation rather than prohibition. It has always been possible, human rights notwithstanding, for prisoners to apply for IVF. Certainly since Dickson the policy has been refined so that there is a slightly broader assessment of the competing interests under the policy and in theory a more realistic chance of success. But whether in practice there has been much change is debatable. The slight finessing of the old policy post Dickson has made little if any difference to the number of prisoners applying or being granted IVF. However, ministers are happy to create the impression that following Dickson there have been a significant number of successful applications for IVF. This is not the case. Before Dickson as the European Court noted:
28 applications for artificial insemination facilities had been made since 1996, 12 were not pursued, 1 was withdrawn as the relationship broke down, 1 applicant was released on parole and 2 were pending. Of the remaining 12 applications, 3 were granted and 9 were refused.
Since 2007, as the Daily Mail reports, there have been just 13 applications, with one being successful. (The freedom of information application that produced these figure is not available on the MOJ’s website.)
Now Lord Chancellor Grayling has launched a review aimed at banning IVF completely. In reality this is little more than an exercise in spin. The Lord Chancellor knows full well that a blanket ban is disproportionate, and is thus likely to be found incompatible with Article 8(2) ECHR. Moreover, given that half the members of the Council of Europe allow some form of conjugal visits for prisoners (Dickson, para 82) it is likely that a challenge to the UK’s prohibition of such visits would be vulnerable to challenge under Article 8; there no longer being a viable alternative in the form of IVF to protect Article 8 rights in suitable cases. It might, therefore, be that Chris Grayling’s unintended legacy as Lord Chancellor will be the appearance of conjugal visiting trailers of the sort that litter some American prisons.