THE CHURCHES still teach that sexual intercourse outside matrimony is fornication and that fornication is a sin. Mrs CiHick, who has brought up her daughters, five of them under sixteen, with this in mind, was perturbed to learn that the Department of Health authorizes doctors "at their clinical discretion" (a phrase which deserves elucidation) to supply the pill to girls under sixteen, parental disapproval notwithstanding. She asked the Court to declare that this was unlawful and the Court refused to do so.
Mr Justice Woolf, with the clarity and concision we have come to expect from him, dealt with the points specifically raised. There was nothing unlawful, he held: the doctor would not he abetting a criminal offence, nor in any physical treatment he gave would he be committing a trespass to the person. It is said that the case is going to appeal where I hope that the debate may be broadened.
We need to have, and we du have, at the root of our law certain broad principles. They are rules of public policy. They are not suited to exposition in the statutory form of sections and subsections. They have been evolved over the generations by the common law.
lord Radcliffe, one of the great jurists of this century, described the law on public policy as meaning "that there are some things the law will not stand for" and as expressing "those inner convictions that sustain the system itself".
Fornication, which includes of course adultery, is not a crime, but it is contrary to public policy. The law does not punish it, but it will not countenance it. As the law stands, a contract, for example, to let a room for the night to a couple known to be unmarried is unenforceable; the price of the room cannot be recovered at law. Supplying the pill to a woman known to he unmarried falls into the same category.
Of course public policy cannot be immutable. It changes slowly but it can change with each generation. Moreover, the function of the law is to prescribe the minimum of good conduct, not the best. II would be outdated now to deny the assistance of the law to all who live in sin. The rule should not he abolished, hut it should he restated. There is nothing outmoded about discountenancing the sexual intercourse of children. Since intercourse with a girl under sixteen is fur a boy a crime, it surely must be accepted that for a girl it is still contrary to public policy .
This is the narrower aspect of the Gillick case. "[he wider aspect is that of parental control. It is universally agreed that the upbringing of a child must be subject to control. In the nature of things this must be either parental or state control.
It is the general belief that, except In cases where parental control has clearly broken down or where Parliament has clearly provided to the contrary, it is parental control.
If a well-intentioned stranger had proffered the Pill, no one would have questioned the principle. The intervention of a well-intentioned health authority makes only the difference that it calls for a formal declaration of what hitherto has been in Lord Radcliffe's words "an inner conviction".
He wrote: "We all feel that there are relationships arising out of human institutions which deserve special protection from outside invasion or even voluntary relinquishment": and he instanced first "marital and parental relationships".
The law should be responsive. If a change in morality requires that the policy rule condemning extra-marital Intercourse should be modified, so a change that brings into modern thought what until recently was unthinkable may require an unwritten rule to be formulated. The Courts should respond to both.
But the latter is the more urgent. The maintenance of parental authority where it is properly exercised should be the first object of public policy. The State depends upon it. Without It the social order will sag.
The exceptional circumstances in which it is ousted should he settled by law. They are not a matter for clinical discretion. If the price that has to be paid for this is that a girl must wail until she is sixteen before she can safely go to bed with a boy, I do not think that the price is too high.