Greater Glasgow Health Board v. Doogan and Wood  UKSC 68 – read judgment here.
The Supreme Court recently handed down its judgment in an interesting and potentially controversial case concerning the interpretation of the conscientious objection clause in the Abortion Act 1967. Overturning the Inner House of the Court of Session’s ruling, the Court held that two Catholic midwives could be required by their employer to delegate to, supervise and support other staff who were involved in carrying out abortion procedures, as part of their roles as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow.
We set out the background to the case and explained the earlier rulings and their ramifications on this blog here and here. The key question the Supreme Court had to grapple with the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection” in section 4 of the 1967 Act.
The disappearing Article 9 argument
Somewhat frustratingly (at least from the perspective of the writers of a human rights blog!) an argument based around Article 9 of the European Convention – the right to freedom of thought, conscience and religion – was not really dealt with by the Supreme Court, despite having been trailed in the earlier court proceedings. Lady Hale JSC, who wrote the judgment with which the other Supreme Court Justices agreed, described the point as a “distraction” and dealt with it as follows (at [23-24]:
…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) 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. 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.
So the Court (perhaps understandably given they did not have the necessary evidence before them) essentially dodged the Article 9 point, as well as ducking the invitation from both parties to consider the broader consequences of either a wide or narrow meaning of section 4. Instead they embarked on a much more straightforward statutory interpretation exercise.
The scope of section 4
There were three possible interpretations put forward to the Court:
- The Royal College of Midwives, who were acting as an intervener, suggested a very narrow view, namely that “treatment authorised by the Act” is limited to the treatment which actually causes the termination of a pregnancy, i.e. the administration of drugs which induce premature labour, and does not extend to the care of a woman during labour, or to the delivery of the foetus, placenta and membrane, or to anything that happens after that.
- Mrs Wood and Mrs Doogan suggested a wide view, namely that section 4 confers the right to object to any involvement with patients in connection with the termination of pregnancy to which an individual has a personal conscientious objection. In their case, they were uncomfortable with receiving and dealing with the initial telephone call booking a patient into the Labour Ward for an abortion, the admission of the patient, assigning a midwife to look after the patient, and supervising staff who were looking after the patient, both before and after the procedure, as well as any direct involvement in the abortion procedure itself.
- The Health Board argued for a half-way house, whereby “treatment authorised by the Act” begins with the administration of drugs and ends with the delivery of the foetus, placenta and membrane. So section 4 would not cover making bookings or other administrative, supervisory or managerial tasks.
The Court largely agreed with the Health Board’s proposition, but slightly extended it to include all the usual care and support given in the course of delivery of the baby. Lady Hale gave the following comprehensive explanation of what is covered by section 4 (at , emphasis added):
…the course of treatment to which the petitioners may object is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It would also, in my view, include the medical and nursing care which is connected with the process of undergoing labour and giving birth – the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient who is going through it all, the delivery of the foetus, which may require the assistance of forceps or an episiotomy, or in some cases an emergency Caesarian section, and the disposal of the foetus, placenta and membrane. In some cases, there may be specific aftercare which is required as a result of the process of giving birth, such as the repair of an episiotomy. But the ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the 1967 Act and thus was not made lawful by it.
However, as to the meaning of “to participate in”, the Court adopted a narrow reading of the words, holding that they refer to actually performing any of the tasks involved in the course of treatment, and not administrative or managerial tasks associated with them. It means “taking part in a ‘hands-on’ capacity”. Lady Hale then went through the job description of the Labour Ward Co-ordinator and explained how most functions would not be covered by the conscience clause.
That said, she also indicated that in relation to some of these functions whilst section 4 might not absolutely require an employer to allow an employee to object, “it may be reasonable to expect an employer to accommodate an employee’s objections“. This may be one of the first attempts by the Supreme Court to begin to construct a doctrine of ‘reasonable accommodation’ of conscience/belief, a potentially very useful and sensible idea which Lady Hale discussed in a speech earlier this year (we noted it here).
There are some suggestions that the Supreme Court’s ruling has ’emasculated’ the conscience clause in the 1967 Act and may make it difficult for many doctors, nurse and midwives who object to abortion to progress in their professions. That is probably to overstate the impact of this judgment. The conscience clause is still quite wide in scope and the Court has essentially confirmed that the understanding most healthcare professionals were operating under before the Inner House judgment was the correct one. All the Court has done is clarify that the law requires employers to respect the conscience of their employees to the extent that they need not directly participate in abortions, but it is certainly open to employers to respect conscientious objection more widely than this and the Court has given a fairly obvious steer that this is to be encouraged (not only for the sake of the objector, but also for the sake of the women undergoing an abortion procedure, who presumably would rather not be treated by someone who profoundly disagrees with what is happening).
Indeed, Lady Hale gave, as an obiter comment, the example that section 4 does not appear to cover doctors signing the required certificate to make an abortion legal, but in practice all contracts with GP and hospital doctors do include a clause which extends protection of freedom of conscience to that task (see ). In the specific situation of this case, given that there have been about 6000 births each year since 2010 at the Southern General Hospital and only around 60 abortions a year (see ), it might well be reasonable to expect this Health Board to come up with some compromise with its employees who have a conscientious objection to any involvement in the ending of a baby’s life, even if quite remote (as indeed they did with these two midwives until recently).
It is perhaps disappointing that the Supreme Court did not use this case as a chance to clarify the developing and currently quite confusing case-law on Article 9, but the comments about reasonable accommodation may well be picked up in subsequent litigation. Watch this space…
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- Conscientious objection to abortion: Catholic midwives win appeal