Goodbye 2014

This Blog is now closing down until January 2015 and I thought I would finish with a bit of a look back on a rather depressing year.

The lowest point was undoubtedly the Supreme Court decision in  Greater Glasgow Health Board v Doogan [2014] UKSC 68  which in effect neutered the Conscientious Objection provision in the Abortion Act 1967 and in my view on very questionable legal grounds.  

The high point for me personally was the opportunity to represent Mr Thomas  Monson,  President of the Church of Jesus Christ of Latter Day Saints (the Mormon Church) who was summonsed to answer a private prosecution issued by a disafected ex Mormon Bishop, Mr Tom Philips.  The Summons was described in The Daily Telegraph as "one of the most unusual documents ever issued by a British Court"  and I would certainly agree with that.  

Before I was instructed to act I had been contacted by a reporter from the Arizona Republic Newspaper asking for my response which ended up being syndicated across the US 

Anyway I was involved with other lawyers in getting the case chucked out at the first hearing on the basis that the issues related to religious doctrine and were therefore "Non Justiciable". 

Prior to the hearing I spent some time following ex Mormon Blogs (almost as bad as ex Catholics, leave the Church but refuse to leave it alone) in order to try to understand the logic behind the case.  What became apparent was that the case was based on a fundamental failure to understand the legal and philosophical nature of religious belief. The idea behind the case was that because certain beliefs of the Mormon Church are expressed by the Church as assertions of facts then they could be examined in Court  however that ignores the reality that most religious beliefs are expressed as assertions of fact, "Christ was crucified and rose from the dead", "Mohammed was visited by the Angel Gabriel who said 'recite' (Arabic 'Quran') and the assertions of fact/belief by the Mormon Church are no different in that respect.

Interestingly the question of whether and to what extent issues relating to religious belief are Non Justiciable was considered by the Supreme Court a few months later in  Shergill v Khaira [2014] UKSC 33  which reaffirmed the principle of Non Justiability with just a little bit of tweaking.


During the year I have been paying a bit more attention to my Blog statistics in particular where visitors come from.  Most are from the UK with the US the next most common, I have visitors from France and Germany (Bienveue and Guten Tag) Vistors also come from Australia (G'day sport) and from Canada (Happy Christmas/Joyeux Noel, Hey !)

I also have visitors from Russia and Ukraine though for some reason nobody from Belarus so I wonder what I have done to upset the Belarussians.  Anyway Счастливого Рождества  and щасливого Різдва to my Slavic readers.

The mention of Ukraine and Russia of course inevitably brings up thoughts of the conflict in Eastern Ukraine and the increasing hostility between Russia and Ukraine.  I actually own a map of Europe published in 1913 and it shows what we call Ukraine named as "Little Russia" with Belarus as "White Russia" and Russia proper as "Great Russia"which is why the Tsars were called "Tsar of all the Russias".  The relationship between Ukraine and Russia is therefore an historically close one so making the conflict between them even sadder and no doubt more bitter because family disputes invariably are the bitterest.

And besides Ukraine there is the ongoing Syrian Civil War and the growth of the self styled Islamic State where frankly I doubt if any outsider truly understands what is really going on or the motivations behind all the death and destruction that is happening.

So as I said a depressing year all I can do is to wish you all well and to hope that 2015 will be a good year for you and a better year for the world.

Until then Good Night and God Bless 

Call The Midwife I want an Abortion ! - 4

In an attempt to try to derive some good from the Supreme Court decision in  Greater Glasgow Health Board v Doogan [2014] UKSC 68  the comments of Lady Hale in paras 23 and 24 are worth noting 

23: There was some discussion, at an earlier stage in these proceedings, of the relevance of the petitioners' rights under article 9 of the European Convention on Human Rights. This protects the "right to freedom of thought, conscience and religion," including the freedom "to manifest his religion or belief, in worship, teaching, practice and observance". It is our duty, under section 3(1) of the Human Rights Act 1998, to read and give effect to legislation, whenever it was passed, in a way which is compatible with the Convention rights, so far as it is possible to do so. However, the article 9 right is a qualified right, which may be subject to "such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". Refusing for religious reasons to perform some of the duties of a job is likely (following the decision of the European Court of Human Rights in Eweida v United Kingdom ((2013) 57 EHRR 8) to be held to be a manifestation of a religious belief. There would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim. The answers would be context specific and would not necessarily point to either a wide or a narrow reading of section 4 of the 1967 Act.


24: The better course, therefore, is for this court to decide what that section means according to the ordinary principles of statutory construction. That will then set a limit to what an employer may lawfully require of his employees. But a state employer has also to respect his employees' Convention rights. And the Equality Act 2010 requires that any employer refrain from direct or unjustified indirect discrimination against his employees on the ground of their religion or belief. So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

This does give Supreme Court approval to an argument that I have successfully used to defend pro-life medics being pressurised to assist with Abortion services even if they do not "participate" in the narrow sense in which that word has been interpreted by the Supreme Court.  In a Blog on 12 August 2011 "Abortion and the Equality Act" I discussed my use of the Equality Act with the pro-life position being put forward either as a religious or a philosophical belief ( as I have frequently mentioned in the past pro-life views are not restricted to religious believers, it is quite possible to be an Atheist and pro-life )

In an ET1 (Employment Tribunal Claim Form) drafted by myself on behalf of a pro-life employee in the NHS I relied on Article 9 and s10 as follows

"The claimant is a member of the Roman Catholic Religion.  She has both a religious and a personal philosophical belief that human life begins at conception and that Abortion is the killing of an innocent human life and is harmful both to the unborn child and to the mother of that unborn child. This is a belief which is compatible with human dignity and worthy of respect in a civilised society and as such it is protected under Article 9 of the European Convention on Human Human Rights and under section 10(1) and 10(2) of the Equality Act 2010."

The cases I have been involved in have however all been resolved without litigation and therefore it is still unclear how far the Equality Act will be effective in protecting pro-life medics and Lady Hales remarks do seem to be an encouragement to litigation which will be expensive and uncertain for all concerned.  

Personally I would have preferred the simpler and more realistic solution of the Supreme Court giving a broad reading  to the Conscientious Objection clause in s4 of the Abortion Act 1967.  However since that has not happened pro-life medics and lawyers such as myself will now have to look increasingly to the Equality Act and the Human Rights Act in order to protect conscience and avoid participation in Abortion

Call the Midwife I want an Abortion ! - 3

The Supreme Court has issued its decision in the case of  Greater Glasgow Health Board v Doogan [2014] UKSC 68 which was an Appeal from the decision of the Inner House of the Court of Session [2013] ScotCS CSIH_36 itself an Appeal from the earlier Outer House decision [2012] ScotCS CSOH_32.   

I have Blogged about the cases in 2012 and 2013.  In brief Ms Doogan and Ms Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward and this change put the two midwives in a moral and legal dilemma that eventually led to the Supreme Court. 

They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) Abortion Act 1967 which says.

"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"

It is worth pointing out that the conscientious objection clause is not restricted to believers in religion, a Secular Pro-Life person is entitled to rely on s4(1) just as much as a religious person. 

The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion and the legal case at all Courts has revolved around the question of what "participate in any treatment" actually meant. 

The Supreme Court found against the Midwives and the Judgment was, ironically, delivered by Lady Hale.  I say "ironically" because on 13th June 2014 Lady Hale gave a speech to the Law Society of Ireland where she said 
"I am not sure that our law has yet found a reasonable accommodation of all these different strands [of religious freedom and conscientious objection]"

One thing is clear from the Doogan Judgment namely that the Supreme Court did not even try to find a "reasonable accomodation" and instead went out of its way to emasculate and limit the Conscience Clause in s4.  The Court in para 37 of its judgment accepted that the word "participate" can have a narrow or a wider meaning and then in para 38 plumped for the narrow meaning

37: The more difficult question is what is meant by "to participate in" the course of treatment in question. The employers accept that it could have a broad or a narrow meaning. On any view, it would not cover things done before the course of treatment began, such as making the booking before the first drug is administered. But a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to "actually taking part", that is actually performing the tasks involved in the course of treatment.

38: In my view, the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed. The focus of section 4 is on the acts made lawful by section 1. It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. "Participate" in my view means taking part in a "hands-on" capacity.

My first objection to this is that there is absolutely no factual or legal basis on for the Court to decide that the "narrow interpretation" is more likely to have been "in the contemplation of Parliament". There appears to have been no reference made to the Parliamentary Debates as is allowed by the case of Pepper v Hart [1993] AC 593 and which would have revealed that the Abortion Act was only passed because of the conscience clause in s4 and assurances that there would be no compulsion regarding participation in Abortion 

There seemed no recognition that the  job of a Labour Ward Co-ordinator required a medical qualification and was carried out by these Midwives in their capacity as qualified Midwives so the comparison Lady Hale makes with cleaners etc is simply fatuous 

More worryingly the Judgment deals with 2 issues relating to Abortion but which were not part of the issues before the Court

In para 36 Lady Hale says that the Conscience Clause provisions in s4 do not cover a Doctor who is asked to sign an authorisation form to legalise an Abortion 

"In Janaway [1989] AC 537, 572 Lord Keith pointed out that such an interpretation would not cover the doctors forming the opinions required by section 1 and signing the certificates to that effect" 

This is actually a complete misrepresentation of Lord Keiths remarks in Janaway where after discussing whether s4 applied to Doctors Certificates he said (very correctly) 

"I do not think it appropriate to express any opinion on the matter."

I rather wish Lady Hale had accepted the same degree of proper Judicial restraint in commenting on matters which were not specifically part of the issues in the case especially having regard to the fact that Doctors Organisations were not represented at the Supreme Court case and had not been forewarned that legal decisions might be made relating to them so that they could make representations if they wished.

In para 40 she says

"it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional's duty of care towards the patient. Once she has assumed care of the patient, she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection."

Once again this was not an issue in the case, Doctors and Nurses Organisations were not forewarned that judgments might be made on this point so that they could be represented and make representations if they wished.  Also it is reading something into an Act of Parliament which has not been put in by Parliament.  

Those two elements of the Judgment are frankly disgraceful, Lady Hale and her fellow Judges stepping completely and unjustifiably outside their legitimate role and function as Judges and making judgments on issues which are not before them and on which the persons affected have not been allowed to make any representations.  Frankly what annoys me as a lawyer is the sheer lack of professional competence in the way the Judgment is reasoned and the way in which the scope of the judgment goes quite improperly beyond the parties and issues involved.

Two final and closing points on what is a depressing evening

In para 8 Lady Hale goes into depressing detail concerning various methods of Abortion provision and says, in passing.

"Feticide is also carried out where there is a risk of the foetus being born alive following the termination"

To which I can only respond "a risk" ? So she happily accepts that the purpose of the legislation is amongst other things to ensure that babies who might be born alive are prevented from being born alive.

In para 14 she looks at the organisation of the Labour Ward where the Midwives worked

"Since 2010, there have been about 6000 births a year at the Southern General Hospital and just under 60 terminations a year in the Labour Ward."

Therefore since Abortions are just 1% of the work in this ward it would not have caused Glasgow NHS any real difficulties to have "reasonably accommodated" the conscientious objections of these Midwives.

In conclusion the case is an overall disaster for good honourable pro-life Doctors and Nurses who may well find themselves either pushed out of medicine altogether or forced to accept that they can never progress and accept supervisory medical posts 

Jehovah Witnesses and Blood Transfusions

For some strange reason the press today are covering two stories about cases that happened months ago see the Guardian &  the Telegraph  for example.

The cases both relate to Jehovah Witnesses and their well known disapproval of  Blood Transfusions.  

In NHS v Child B [2014] EWHC 3486 (Fam)(01 August 2014) Mr Justice Moylan permitted Doctors to give a Blood Transfusion to, what he described as "a very young child" against the wishes of the childs devout Jehovah Witness parents. 

In para 5 the Judge noted
"It is the unanimous view of the clinical team that the best practice treatment of B is skin grafting and that there is a significant risk that he will require a blood transfusion during this procedure."

and in para 10
"the consultant expresses the opinion that, in the event of a skin graft taking place without the ability to give a blood transfusion, there is a risk of death."

The Judge summed up his decision in para 18
My decision must be determined by my assessment of what is in B's best interests because my paramount consideration is B's welfare. In reaching my decision, based on balancing all the factors bearing on the issue of B's welfare, I must weigh in that balance the wishes, opinions and views of B's parents. They alone have parental responsibility. But, as Ward LJ said in In re A (Children)(Conjoined Twins: Surgical Separation) [2001] Fam 147, although I must give "very great respect" to the parents' wishes, they are "subordinate to welfare".

This decision therefore was predictable because the Court was having to take a decision on behalf of a child who could not make his own informed decision

By contrast in Newcastle Upon Tyne Hospitals Foundation Trust v LM [2014] EWCOP 454 (26 February 2014) Mr Justice Peter Jackson refused to allow Doctors to administer a Blood Transfusion to a  "gravely ill 63-year-old female Jehovah's Witness." known as LM, in para 11 he noted 

"On 12 February, LM was seen by two doctors in the gastroenterology team. She told them that she was adamant that she would not want treatment with any blood products. They felt that she had full capacity to make this decision with an awareness of the consequences.".  

Following this condition of LM deteriorated so that she could not communicated. The Hospital was concerned as to whether she could be given a Blood Transfusion which might help her or whether to respect her wishes and see her die.  

The Judge decided para 21
"I am satisfied that LM understood the nature, purpose and effects of the proposed treatment, including that refusal of a blood transfusion might have fatal consequences."

and on that basis the Judge ruled that a Blood Transfusion should not be given and subsequently LM died.

Neither case creates any new law or sets out any new principle.  The question in both cases was the same namely is the person needing the Transfusion in any position to make a decision refusing the treatment.  In the case of a child the answer was No so the Court made the decision but in the case of the adult the answer was yes so their decision was respected.  

The Unborn Child and its Legal Rights

In my Blog posting on 11 November I mentioned the case before the Court of Appeal concerning a child (CP) born with Fetal Alcohol Syndrome who is in local authority care. This is not directly a Religion Law case but since Abortion and the rights of the Unborn Child are of  concern to many religious believers it is appropriate to cover it here.

In the case of CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554 the Local Authority brought the claim on behalf of CP in order to claim claim Criminal Injuries Compensation for her.  To succeed they first had to establish that CP's mother had committed a criminal offence contrary to s23 Offences Against the Person Act 1861. 

23 Maliciously administering poison, &c. so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty

There did not have to be a Criminal prosecution of the mother in order for there to be a Criminal Injuries Compensation claim but in order for an award to be made the Criminal Injuries Compensation Authority (CICA) had to be satisfied that a crime had been committed

The claim for Criminal Injuries Compensation had been dismissed by the Upper Tribunal in CICA v FTT and CP (CIC) [2013] UKUT 638 (AAC) and was also dismissed by the Court of Appeal.  The core question for the Court was whether CP was in law "any other person" at the time the "poison or other destructive or noxious thing" ie was "administered" to her.  It was agreed that CP's  mother had drunk a grossly excessive amount of Alcohol during her pregnancy and it was this alcohol that had caused CP's disabilities however was CP a "person" before she was born. Sadly but perhaps predictably the Court of Appeal said No. 

Counsel for CP relied heavily on the House of Lords case of Attorney General's Reference (No 3 of 1994) [1998] A.C. 245  which involved a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, who survived for only 121 days.  The House of Lords held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother and therefore there could not be a conviction for murder however there was sufficient for a conviction for manslaughter.

It was argued on behalf of CP that since the House of Lords had decided that the foetus becomes a person when it is born and had decided that manslaughter was a continuing act running from the moment of the attack on the mother to the death of the child after birth, there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth.

For the CICA it was argued that the Upper Tribunal had reached the right decision in para 16 of its decision where it said:

16: If CP was not a person whilst her mother was engaging in the relevant actions, then she was not another person for the purposes of s23 and as a matter of law her mother could not have committed a criminal offence contrary to s23 in relation to her unborn child.

The Court of Appeal took the same approach  

40:Thus in the case of a foetus, it was legitimate to find a chain of causation extending from the initial insult to the foetus which triggered its premature birth through to the point of death some time after birth, by which stage the child had undoubtedly achieved legal personality. A close examination of the language used by Lords Mustill and Hope shows clearly firstly that it has to be seen in the context of homicide, and secondly that it was used in the context of a foetus which suffered injury and which subsequently died after birth. It was common ground that violence done to a foetus resulting in a still birth could not found criminal liability. In cases where the child is born alive, the actus reus cannot crystallise until the time of death.

41: I consider that the situation is rather different in relation to the s23 offence. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime.

The Court also took into account the fact that in section 1 of the Congenital Disabilities (Civil Liability) Act 1976 Parliament had specifically legislated that a Mother could not be sued for damage caused to her child by actions of the Mother during pregnancy and concluded  

66: The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Act.

On the basis of the law as it stands I can understand the decision and I respect the fact that the Court of Appeal made it clear that it was open to Parliament to legislate for the unborn child to have legal rights in this situation but it was not the task of the Courts to do so.

As someone who was involved as an Intervenor in this case solely in response to the the, completely unnecessary, decision by BPAS to become an Intervenor I am sorry to read that BPAS are trumpeting the decision as some sort of victory for Womens Autonomy.  At the end of the day we have a Child severely injured by the actions of her mother and a child who will probably require care and help for the rest of her life.  There is no victory in this case and there are no winners