Because the UK House of Lords' decision in 'R (on the application of Quintavalle) v Secretary of State for Health' simply confirms that the law regulating the production of cloned embryos is as the Government had assumed it to be before the Pro-Life Alliance began its legal challenge in the summer of 2001, it might be supposed that it is of little practical importance.
And it is true that the judgement's consequences are much less dramatic or newsworthy than they would have been had the House of Lords instead overturned the Court of Appeal's decision, and ruled that cloning (other than reproductive cloning) was effectively unregulated in the UK. But the case is significant not only for the huge sigh of relief with which it was greeted by both legislators and scientists.
As a decision of the highest court in the country, it lays down an important precedent for future cases in which science has effectively overtaken the law which is supposed to control it. A statute is intended to be in place for many years, but the field which it regulates may change dramatically in a relatively short space of time. So what do you do when the wording of a piece of legislation is superseded by scientific progress, and as a result does not appear to apply to a new and unforeseen technique?
Here the particular difficulty lay in the 'definition' of embryo contained in section 1(1)(a) of the Human Fertilisation and Embryology (HFE) Act 1990 - 'a live human embryo where fertilisation is complete' - which, on the face of it, does not appear to include embryos created by cell nuclear replacement - CNR (cell nucleus replacement - the technique which was used to create Dolly the sheep in 1996, but which had not been thought possible in 1990). Were it not for the separation of powers between parliament and the judiciary, the solution would be straightforward: the judges could just rewrite the original legislation in order to accommodate the unforeseen development.
But that would involve judges making, rather than simply applying, the law, and this they are not allowed to do. It is illegitimate to ask what parliament would have intended had it foreseen CNR, because this would be to second guess the legislative will. So if the courts are forbidden from filling gaps, but the words in a statute don't appear to fit some new technique, what can they do?
One strategy commonly employed when the words of a statute are unclear is to ask what parliament's intention was when passing the particular piece of legislation. But this is problematic here because parliament didn't anticipate CNR and so didn't actually have any intention at all about how such embryos should be regulated. Instead the House of Lords appeared to be assisted by looking at what parliament did not intend when passing section 1(1)(a). Its purpose, they argued, was not to distinguish between different ways in which embryos might be created, because at that time it didn't occur to anyone that they could be created without fertilisation having taken place.
So the words 'when fertilisation is complete' were directed towards the time at which an embryo would be subject to the regulatory control of the statute, and not to the manner in which embryos whose creation and use is controlled by the Act are created.
The House of Lords also relied on another standard technique of statutory interpretation, namely employing the ordinary language meaning of words. Section 1(1)(a) was not intended to offer a special statutory redefinition of the word 'embryo'. Rather the normal meaning of the word embryo (which would undoubtedly include embryos created through CNR) must have been taken for granted by the statutory draftsman because the definition 'a live human embryo where fertilisation is complete' itself contains the word it is supposed to define with no further elaboration.
The important words here are instead 'live' and 'human' - this is the sort of embryo that is regulated by the statute - so dead and/or animal embryos are plainly not covered. Unlike the Court of Appeal, the House of Lords did not admit to having had to strain the statutory language in order to prevent a hugely inconvenient gap in the regulatory scheme. Rather the Lords argued that the unfortunate phrase is not in fact part of the definition of the word embryo, though at first sight a literal reading might appear to pull in the opposite direction.
A drafting infelicity also formed the basis of Josephine Quintavalle's judicial review action (recently rejected by the Court of Appeal) which challenged the HFEA (Human Fertilisation and Embryology Authority)'s authority to license tissue typing in the Hashmi case. The courts' rejection of both of these legal challenges, while welcome, is unlikely to prevent other parts of this statute from being subjected to the sort of close reading which will almost inevitably reveal a lack of fit between the state of scientific knowledge in 1990 and that which exists today.
In time the words in the statute may become strained beyond breaking point and it could prove necessary to go back to parliament for the legislation's comprehensive revision. While this is ostensibly the sole purpose of legal actions such as that instituted by Bruno Quintavalle, it is of course possible - and in my view would be wholly desirable - that a twenty-first century Human Fertilisation and Embryology Act might turn out to be far more liberal than its 1990 predecessor.
Emily Jackson is senior lecturer in Law at the London School of Economics and a member of the Human Fertilisation and Embryology Authority