Wednesday, 24 December 2014

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


Andrew said...

If instruments are not cleaned, if the floor is not cleaned, if the power plant is not maintained, if the water is not kept running . . . the hospital will grind to a halt but there will be no abortions. Should the people who carry out those functions have a conscience clause too?

Neil Addison said...

You do not have to be medically qualified to carry out any of the above functions which is the difference between those hypothetical examples and these 2 Midwives.