The case of JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) is a follow on from the same case in the High Court JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) which I blogged about last year
The issue in the case is whether the Portsmouth Diocese could be held Vicariously Liable for alleged Child Abuse occurring 40 years before (I'll return to that point later). The Claimant alleges she was raped when she was 6 by a Priest of the Diocese. The Catholic Church does not regard Priests as being its employees but rather as being "Office Holders" and usually in law there is no liability attaching to the acts of a Office Holder, this was for example the legal position as regards Police Constables and it was not until the Police Act 1964 (now s88 the Police Act 1996 )that Chief Constables were made vicariously liable for the wrongful acts of Police Constables under their command. However this act did not change the general legal point that office holders are regarded in law as not being employees and hence as not having an employer who can be held vicariously liable for their acts.
In many other cases involving allegations of sexual abuse by Catholic Clergy the relevant Diocese have not argued the vicarious liability point but agreed that the Court could approach the issue "as if" the Priest in question was an Employee; in this case however the Diocese decided to argue the issue as to whether the Diocese was legally liable and it was argued as a preliminary issue. The Court of Appeal obviously had reservations about this approach as Lord Justice Ward said in para 6
I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort.
The Court was also aware that on the facts alleged the Diocese itself was not at fault and did express and indeed Lord Justice Davis noted in para 133 that the entire principle of Vicarious Liability raised questions about
the extent to which, as a matter of policy, an innocent defendant should (without fault) be made to bear responsibility for the wrongful acts of another.
However the Court did decide that even though a Catholic Priest was not an Employee of his Diocese or his Bishop nevertheless the Diocese was vicariously liable for the alleged acts of the Priest and it did accept that in this decision it was extending the legal concept of Vicarious liability. The ruling has implications for all forms of voluntary organisations since it opens them to the possibility of being sued for the actions of non employees such as volunteers, school governors etc.
More worrying for me is the fact that in this case the Defendant is having to defend itself against allegations of abuse occurring 40 years ago at the hands of someone who is dead. The allegations are entirely based on the evidence of the Claimant and the accused Priest was dead before the allegations were made. This puts an impossible burden on any organisation to defend itself.
The Limitation Act 1980 is supposed to prevent claims being brought after six years but the Courts have interpreted it in such a way as to allow sex abuse claims to be brought decades after the alleged events and this makes having a fair trial impossible and circumvents the intention of Parliament when it passed the Limitation Act. It opens Churches, the Boy Scouts, Barnardos and State Care Homes to the danger of unjustified legal claims in which the only evidence is unsupported allegations made against persons who are dead and unable to defend themselves or their reputation
It is ironic that this decision was made just a week before the High Court begins to hear a case against the UK Government for alleged misconduct in the Mau Mau uprising more than 50 years ago. By allowing that case and the Portsmouth case to proceed the Courts have subverted the Limitation Act. Parliament does need to have another look at the entire issue of limitation; surely there has to be a point where allegations are so old that it is simply wrong to allow them to proceed to trial.
Tuesday, 17 July 2012
Tuesday, 19 June 2012
Friday, 18 May 2012
Fernandez-MartÃnez c. Espagne
The European Court of Human Rights has just issued its judgment in the interesting case of Fernandez-MartÃnez c. Espagne which concerned the right of a Catholic Bishop to terminate the teaching post of a Religious Education teacher at a State School. The judgment is currently only available in French .
The case concerned a refusal to renew the contract of a Catholic religion and morals teacher who was a “married priest”, father of five, after the publication of an article by him which made his belonging to the “Pro-Optional Celibacy Movement” public. In Spain, religion teachers in State schools are contractual employees of the State, appointed on the proposal of and with prior approval of the local Bishop. The Bishop may withdraw or refuse to renew this agreement, which binds the employer State-school.
This case questioned whether the Church could to withdraw its agreement from a Catholic religion teacher for religious reasons, while the material causes of the withdrawal (marriage and positions taken in the press) enjoyed human rights protection, especially the right to respect for private and family life (article 8) and the right to freedom of expression (Article 10). As the Court said, the main question raised by this case was
“whether the State was bound by its positive obligations under Article 8 to give priority to the applicant’s right to respect for private life upon the right of the Catholic Church to refuse to renew his contract”
The Court held that
“the requirements of the principles of religious freedom and neutrality prevent it from going further in the assessment of the necessity and proportionality of the decision not to renew” the contract since the circumstances which motivated this refusal to renew were of “a strictly religious nature”.
The role of the Court was
“limited to verifying that the fundamental principles of the domestic legal order or the dignity of the applicant have not been infringed”
and other than that the Court could not rule on the necessity and the proportionality of the decision of the Church because doing so could interfere with the rights of the Church under Article 9 and Article 11 of the Convention (freedoms of religion and association).
The Court also refered to the “special confidence link” which must unite a Catholic religion teacher with the Catholic Church and considered that the teacher was submitted to an increased obligation of loyalty because of the special nature of his position.The Catholic authorities, in refusing to renew his employment
“simply fulfilled their obligations in accordance with the principle of religious autonomy”
The judgment is undoubtedly important in the sphere of Human Rights jurisprudence and could strengthen the position of Faith Schools in the UK in relation to ensuring that the conduct of teachers conforms to the beliefs of their religion.
The case concerned a refusal to renew the contract of a Catholic religion and morals teacher who was a “married priest”, father of five, after the publication of an article by him which made his belonging to the “Pro-Optional Celibacy Movement” public. In Spain, religion teachers in State schools are contractual employees of the State, appointed on the proposal of and with prior approval of the local Bishop. The Bishop may withdraw or refuse to renew this agreement, which binds the employer State-school.
This case questioned whether the Church could to withdraw its agreement from a Catholic religion teacher for religious reasons, while the material causes of the withdrawal (marriage and positions taken in the press) enjoyed human rights protection, especially the right to respect for private and family life (article 8) and the right to freedom of expression (Article 10). As the Court said, the main question raised by this case was
“whether the State was bound by its positive obligations under Article 8 to give priority to the applicant’s right to respect for private life upon the right of the Catholic Church to refuse to renew his contract”
The Court held that
“the requirements of the principles of religious freedom and neutrality prevent it from going further in the assessment of the necessity and proportionality of the decision not to renew” the contract since the circumstances which motivated this refusal to renew were of “a strictly religious nature”.
The role of the Court was
“limited to verifying that the fundamental principles of the domestic legal order or the dignity of the applicant have not been infringed”
and other than that the Court could not rule on the necessity and the proportionality of the decision of the Church because doing so could interfere with the rights of the Church under Article 9 and Article 11 of the Convention (freedoms of religion and association).
The Court also refered to the “special confidence link” which must unite a Catholic religion teacher with the Catholic Church and considered that the teacher was submitted to an increased obligation of loyalty because of the special nature of his position.The Catholic authorities, in refusing to renew his employment
“simply fulfilled their obligations in accordance with the principle of religious autonomy”
The judgment is undoubtedly important in the sphere of Human Rights jurisprudence and could strengthen the position of Faith Schools in the UK in relation to ensuring that the conduct of teachers conforms to the beliefs of their religion.
Friday, 11 May 2012
Defiance is the Only Answer
Another Blogger going by the Nom de Plume of Archbishop Cranmer has apparently been threatened by the Advertising Standards Authority for daring to put on his Blog the following Advert
Now I do not normally put adverts on my Blog but I get so fed up with the small minded little Hitlers who seem to infest organisations such as the ASA and the Equality and Human Rights Commission that I have added it to my Blog simply as an expression of solidarity with my fellow Blogger. Can I encourage any other believers in Free Speech to do the same the URL is
http://zwingliusredivivus.files.wordpress.com/2012/05/c4m_mpu.gif
Incidentally for those who didn't know yesterday was Liberation Day in the Channel Islands when they celebrate their liberation from Nazi occupation, the only part of the British Isles to be occupied. We in this country fought a war to defend our right to speak freely and express our opinions but clearly the ASA are not aware of that fact.
And for those who are in favour of Same Sex Marriage I just make this point. My posting here is not about SSM and whether it is a good idea or a bad idea. I am posting simply in the name of Freedom, the freedom to express a point of view with which other may disagree because as Lord Justice Sedley put it so memorably in Redmond Bate v DPP
Tuesday, 17 April 2012
Same Sex marriage and the European Court
In the case of Gas and Dubois v France 25951/07 the European Court of Human Rights considered the issue of whether there was any right to same sex marriage under the European Convention on Human Rights and decided that there was none. Unfortunately the judgment is only available in French "Zut Alors !" however "La Garde meurt mais ne se rend pas!" so I will take the chance of commenting nevertheless.
In the Gas case the Court reaffirmed its earlier decision in Schalk and Kopf v. Austria 30141/04 that there is no obligation under the Convention for States to legalise same sex marriage or indeed to legalise same sex civil partnerships. However it also reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage. This has particular relevance for the UK in view of the current consultation the UK and Scottish Governments are running on the possible legalisation of same sex marriage.
In the UK consultation the Government states that the legalisation of same sex marriage would
"make no changes to religious marriages. This will continue to only be legally possible between a man and a woman"
but this assurance is completely at odds with the European Courts decision in both the Schalk and Gas cases.
What the Government assurance is ignoring is the fact that, in law, there is no difference between "Civil" as opposed to "Religious" marriage both are in law the same thing and merely take place in different premises. Therefore on the basis of the both the Schalk and Gas cases if the Government legalises same-sex marriage then it must legalise it on exactly the same basis as it legalises heterosexual marriage ie the Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage on religious premises.
How this will affect the rights of Churches who are registered for marriage and in particular how it will affect the Church of England and its clergy who are Registrars of Marriage by virtue of their status as Priests of the Established Church is legally very arguable. Certainly a good legal case can be made that any place or person who is registered to perform marriage must be willing to perform same sex marriage on the same basis as they conduct heterosexual marriage since, in law, there will be no difference between the two.
It must also be remembered that in the case of Ladelle v Islington Council [2009] EWCA Civ 1357 the Court of Appeal held that Mrs Ladele's view of Marriage "the orthodox Christian view that marriage is the union of one man and one woman for life" (para 7) "was not a core part of her religion" (para 52) and therefore if Churches are told that they have to be willing to perform same sex marriage ceremonies they will have little legal ground to resist.
The combined effect of the European Court decision and the Ladele decision seems to be clear. If same sex marriage is legalised in the UK then religious same sex marriage will have to be legalised also. Churches which perform heterosexual marriages will have to be willing to perform same sex marriages and they will have no legal grounds to resist since the (secular) Courts have determined that the "Orthodox Christian view of Marriage" is not a "Core" part of Christian belief.
In the Gas case the Court reaffirmed its earlier decision in Schalk and Kopf v. Austria 30141/04 that there is no obligation under the Convention for States to legalise same sex marriage or indeed to legalise same sex civil partnerships. However it also reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage. This has particular relevance for the UK in view of the current consultation the UK and Scottish Governments are running on the possible legalisation of same sex marriage.
In the UK consultation the Government states that the legalisation of same sex marriage would
"make no changes to religious marriages. This will continue to only be legally possible between a man and a woman"
but this assurance is completely at odds with the European Courts decision in both the Schalk and Gas cases.
What the Government assurance is ignoring is the fact that, in law, there is no difference between "Civil" as opposed to "Religious" marriage both are in law the same thing and merely take place in different premises. Therefore on the basis of the both the Schalk and Gas cases if the Government legalises same-sex marriage then it must legalise it on exactly the same basis as it legalises heterosexual marriage ie the Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage on religious premises.
How this will affect the rights of Churches who are registered for marriage and in particular how it will affect the Church of England and its clergy who are Registrars of Marriage by virtue of their status as Priests of the Established Church is legally very arguable. Certainly a good legal case can be made that any place or person who is registered to perform marriage must be willing to perform same sex marriage on the same basis as they conduct heterosexual marriage since, in law, there will be no difference between the two.
It must also be remembered that in the case of Ladelle v Islington Council [2009] EWCA Civ 1357 the Court of Appeal held that Mrs Ladele's view of Marriage "the orthodox Christian view that marriage is the union of one man and one woman for life" (para 7) "was not a core part of her religion" (para 52) and therefore if Churches are told that they have to be willing to perform same sex marriage ceremonies they will have little legal ground to resist.
The combined effect of the European Court decision and the Ladele decision seems to be clear. If same sex marriage is legalised in the UK then religious same sex marriage will have to be legalised also. Churches which perform heterosexual marriages will have to be willing to perform same sex marriages and they will have no legal grounds to resist since the (secular) Courts have determined that the "Orthodox Christian view of Marriage" is not a "Core" part of Christian belief.
Monday, 12 March 2012
Crosses Turbans and Hijabs
It has been reported that the Government has replied to various cases before the European Court of Human Rights regarding the wearing of the cross by Employees. The Governments view, and that of the Courts would appear to be that bans on the wearing of a cross are OK because the wearing of the Cross is not compulsory in Christianity, therefore the wearing of the Sikh Turban or Islamic Hijab cannot be prohibited but the wearing of a cross can be.
My big worry with this approach is the idea that a Secular Government and Secular Courts are allowed to discriminate between Religions based on Theological points within the religions themselves. There seems no awareness that this distinction is itself discriminatory because it gives a privileged legal position to those religions with specific and detailed rules as against those with more flexible rules.
More to the point the distinction misunderstands the nature of religious practice which is often a complex mixture of rules, beliefs, customs and rituals which often may not be formally prescribed but which are nevertheless regarded by religious believers as integral parts of their faith. The Second Council of Nicaea 787 noted that "the sacred and life-giving cross is everywhere set up as a symbol" and for Millenia the wearing of a cross by Christians has been regarded as a fundamental custom and practice of most Christians even though it has not been been formally required as an obligation of faith.
Therefore to attempt to distinguish between the wearing of a cross and the wearing of a Sikh Turban or Islamic Hijab on the basis that one is required but the other is not is to create a completely theologically illiterate, an artificial and an unrealistic distinction. It is an approach that goes against the fundamental principle of a secular society with secular courts because it involves secular Courts making religious decisions as to what is or is not compulsory in a religion.
What is also worrying is why the Courts and now government have adopted this approach. Article 9 of the European Convention of Human Rights says
Article 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.
What the Courts and Government are saying is that the wearing of a cross is not a "manifestation" of religion because it is not compulsory therefore restrictions on the wearing of a cross do not have to be justified under Article 9.2 as being restrictions which are "necessary in a democratic society".
I suspect that most fair minded secularists and atheists would accept that the wearing of a cross by a believing Christian is a "manifestation" of the Christian faith even if they think that that manifestation should be restricted or banned along with the manifestation of other forms of religion. If so then those Atheists and Secularists would be being more fair minded towards Christians than the British Courts or the British Government.
My big worry with this approach is the idea that a Secular Government and Secular Courts are allowed to discriminate between Religions based on Theological points within the religions themselves. There seems no awareness that this distinction is itself discriminatory because it gives a privileged legal position to those religions with specific and detailed rules as against those with more flexible rules.
More to the point the distinction misunderstands the nature of religious practice which is often a complex mixture of rules, beliefs, customs and rituals which often may not be formally prescribed but which are nevertheless regarded by religious believers as integral parts of their faith. The Second Council of Nicaea 787 noted that "the sacred and life-giving cross is everywhere set up as a symbol" and for Millenia the wearing of a cross by Christians has been regarded as a fundamental custom and practice of most Christians even though it has not been been formally required as an obligation of faith.
Therefore to attempt to distinguish between the wearing of a cross and the wearing of a Sikh Turban or Islamic Hijab on the basis that one is required but the other is not is to create a completely theologically illiterate, an artificial and an unrealistic distinction. It is an approach that goes against the fundamental principle of a secular society with secular courts because it involves secular Courts making religious decisions as to what is or is not compulsory in a religion.
What is also worrying is why the Courts and now government have adopted this approach. Article 9 of the European Convention of Human Rights says
Article 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.
What the Courts and Government are saying is that the wearing of a cross is not a "manifestation" of religion because it is not compulsory therefore restrictions on the wearing of a cross do not have to be justified under Article 9.2 as being restrictions which are "necessary in a democratic society".
I suspect that most fair minded secularists and atheists would accept that the wearing of a cross by a believing Christian is a "manifestation" of the Christian faith even if they think that that manifestation should be restricted or banned along with the manifestation of other forms of religion. If so then those Atheists and Secularists would be being more fair minded towards Christians than the British Courts or the British Government.
Wednesday, 7 March 2012
Call the Midwife - I want an Abortion !
The Scottish Court of Session case of Doogan & Wood v Greater Glasgow Health Board [2012] CSOH 32 dealt with two issues regarding the right of Midwives to refuse to participate in Abortion, namely Article 9 (Freedom of Religion) of the European Convention on Human Rights and the "Conscientious Objection" clause in s4(1) of the Abortion Act 1967.
The facts are that Doogan and 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 supervised by Midwives. (Personally I don't know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn't an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.
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) in order to be excused from supervising the "patients" who were in for Abortions. (It is worth noting here that the conscientious objection clause is not restricted to believers in religion, an Atheist who believes, as many do, that the unborn child is human 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. The Midwives referred to s4(1) which says that
"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"
and the legal case revolved around the question of what "participate in any treatment" actually meant.
The main case which had considered this point previously was Salford Health Authority v Janaway [1989] 1AC 537 where a typist had tried to rely on s4(1) when she refused to type a letter referring a patient for an Abortion. Not surprisingly perhaps the House of Lords in that case decided that a secretary typing a letter did not involve participation in treatment. In this case however it was midwives who claimed to be participating and there is no doubt that they were employed because of their skill and training as Midwives.
Despite this the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance. If the Contract had to be considered perhaps more consideration should have been given to a clause mentioned in para 16 of the Judgment "ensuring that women's and babies' needs are assessed, care planned, implemented and evaluated", after all no baby needs an Abortion.
A lot of the legal argument in this case, as in the Janaway case, revolved around the criminal law of accessories or, in the Scottish legal parlance "art and part", but I wonder if more help might have been gained from looking at the Civil Law of negligence and professional liability. If a woman who was in the Labour Ward for an Abortion fell ill or died due to their Abortion "treatment" being incorrect or not properly managed when either of these senior midwives were on duty could they have been professionally disciplined by the NMC. If they could then surely they are "participating" in the treatment because they cannot be held to be professionally liable for an incorrect treatment that they have no involvement with. This does not seem to have been a point considered in this judgment but may perhaps be considered in what is, I suspect, an inevitable appeal.
The case also considered Article 9 but there is little point in dealing with those legal arguments since the Judge followed the previous cases under which the UK Courts have interpreted Article 9 so that it has become virtually meaningless as a form of legal protection. The view of the Courts is that if your job in any respects interferes with your religious belief then you have to get another job and you cannot rely on Article 9 to help you. Of course if you are a murderous terrorist or an illegal immigrant who has committed a crime for which you should be deported then the Human Rights Act will protect you to the end but if you are an ordinary person who wants to wear a crucifix or, in this case, refuse to take the life of an unborn child then the Human Rights Act will do nothing for you.
Oh and as a final point some people have suggested that because this case occurred in Scotland it would have no relevance to the legal position in England and Wales, but that unfortunately is not the case. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and the Human Rights Act (and hence article 9) applies throughout the UK. Though Scotland is a separate legal jurisdiction to England and Wales in practice wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions are accepted without question in England and Wales and Visa Versa. The Outer House of the Court of Session is equivalent in status to the High Court of England and Wales and therefore this case will in practice be treated south of the border on exactly the same basis as if it had been a decision of the High Court.
The facts are that Doogan and 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 supervised by Midwives. (Personally I don't know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn't an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.
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) in order to be excused from supervising the "patients" who were in for Abortions. (It is worth noting here that the conscientious objection clause is not restricted to believers in religion, an Atheist who believes, as many do, that the unborn child is human 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. The Midwives referred to s4(1) which says that
"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"
and the legal case revolved around the question of what "participate in any treatment" actually meant.
The main case which had considered this point previously was Salford Health Authority v Janaway [1989] 1AC 537 where a typist had tried to rely on s4(1) when she refused to type a letter referring a patient for an Abortion. Not surprisingly perhaps the House of Lords in that case decided that a secretary typing a letter did not involve participation in treatment. In this case however it was midwives who claimed to be participating and there is no doubt that they were employed because of their skill and training as Midwives.
Despite this the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance. If the Contract had to be considered perhaps more consideration should have been given to a clause mentioned in para 16 of the Judgment "ensuring that women's and babies' needs are assessed, care planned, implemented and evaluated", after all no baby needs an Abortion.
A lot of the legal argument in this case, as in the Janaway case, revolved around the criminal law of accessories or, in the Scottish legal parlance "art and part", but I wonder if more help might have been gained from looking at the Civil Law of negligence and professional liability. If a woman who was in the Labour Ward for an Abortion fell ill or died due to their Abortion "treatment" being incorrect or not properly managed when either of these senior midwives were on duty could they have been professionally disciplined by the NMC. If they could then surely they are "participating" in the treatment because they cannot be held to be professionally liable for an incorrect treatment that they have no involvement with. This does not seem to have been a point considered in this judgment but may perhaps be considered in what is, I suspect, an inevitable appeal.
The case also considered Article 9 but there is little point in dealing with those legal arguments since the Judge followed the previous cases under which the UK Courts have interpreted Article 9 so that it has become virtually meaningless as a form of legal protection. The view of the Courts is that if your job in any respects interferes with your religious belief then you have to get another job and you cannot rely on Article 9 to help you. Of course if you are a murderous terrorist or an illegal immigrant who has committed a crime for which you should be deported then the Human Rights Act will protect you to the end but if you are an ordinary person who wants to wear a crucifix or, in this case, refuse to take the life of an unborn child then the Human Rights Act will do nothing for you.
Oh and as a final point some people have suggested that because this case occurred in Scotland it would have no relevance to the legal position in England and Wales, but that unfortunately is not the case. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and the Human Rights Act (and hence article 9) applies throughout the UK. Though Scotland is a separate legal jurisdiction to England and Wales in practice wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions are accepted without question in England and Wales and Visa Versa. The Outer House of the Court of Session is equivalent in status to the High Court of England and Wales and therefore this case will in practice be treated south of the border on exactly the same basis as if it had been a decision of the High Court.
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