The right to respect for religious and philosophical beliefs often turns on the question of where to draw the line, whether it concerns the wearing of religious symbols or what, in fact, constitutes a philosophical belief capable of protection.
Although not directly triggered by the relevant provisions of the Equality Act 2010, in the judgment of the Supreme Court in Greater Glasgow Health Board v Doogan and another, delivered on 17 December, the question of where to draw the line was again to the fore.
Mary Doogan and Concepta Wood are experienced midwives who worked as labour ward co-ordinators. They are both practising Roman Catholics who notified their employer of their conscientious objection to taking part in the termination of pregnancies. Pursuant to section 4 of the Abortion Act 1967 (entitled “Conscientious objection to participation in treatment”):
“(1) Subject to subsection (2) of this section, 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:
Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.
(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
(3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.”
A small proportion of terminations take place in the labour ward rather than the gynaecology ward with a midwife being assigned to give these patients one to one care. The job of the labour ward co-ordinator includes booking in patients, allocating staff in the ward and supervising and supporting midwives. Both respondents believe that human life is sacred from the moment of conception and that termination of pregnancy is a grave offence against human life. They also believed that any involvement in the process of termination rendered them liable as accomplices and therefore culpable for that grave offence. The hospital took the view that delegation, supervision and support did not constitute “participating” in the treatment and therefore rejected their grievances.
Both brought judicial review proceedings which were unsuccessful. They appealed to the Inner House (the Scottish equivalent of the Court of Appeal and succeeded. Lady Dorrian, delivering the lead judgment, stated:
The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.” (emphasis supplied by the Supreme Court)
The Supreme Court unanimously disagreed. Lady Hale, delivering the lead judgment, focused on what was meant by “participating in any treatment authorised by this Act to which he has a conscientious objection”.