News and Events from March 2012

News Archive March 2012

Judicial review - freedom of thought, conscience and religion

Relying upon one of the less often litigated articles of the ECHR, two senior midwives have failed in their efforts to limit their involvement (in carrying out their duties in respect of the  supervision and support of staff  they managed) in abortion procedures.  In the case (Doogan and Wood v Greater Glasgow Health Board), the midwives sought to rely upon the conscientious objection section found in 4(1) of the Abortion Act 1967 allowing individuals with conscientious objections to opt out of involvement with these procedures.  They also argued they could use article 9 ECHR as an aid to interpretation of that section.  They maintained that they should not be required to supervise and give support to the midwives they managed when these midwives carried out medical terminations.

After deciding that the words of s4(1) did not on their ordinary meaning entitle the petitioners to the orders they sought, the court moved on to consider article 9. Lady Smith opined:

“Whilst the implication into their contracts of employment of the section 4(1) right of conscientious objection means that the position is not as clear cut as in (other cases), I do not conclude that the existence of their section 4(1) rights is, in all the circumstances, a special feature of such weight as to show that their Article 9 rights are being interfered with. I say so for three reasons.

The first is that their right of conscientious objection is not unqualified - they could not, accordingly, have thought that in accepting the job description which they accepted, their statutory rights would prevent them from having to provide treatment to terminate pregnancy - sometimes by having direct involvement with the procedure - in all circumstances.

The second is that they did in fact agree to take up the roles of Labour Ward Co-ordinators, the job content of which they now take objection to.

The third is that, in any event, the nature of their duties does not in fact require them to provide treatment to terminate pregnancies directly. It follows, accordingly, that I am not persuaded that section 3 of the Human Rights Act 1998 requires me to afford to the words of section 4(1) anything other than their ordinary meaning.”

Perhaps of more practical importance to practitioners was the application for a protective expenses award. This application was only made at the end of proceedings and the petitioners were clearly backed by an apparently well-funded organisation. In the circumstances Lady Smith decided that, assuming that such an award was competent in the circumstances, it should not granted.

Brian Napier QC acted for the respondents.