WHEN CONSCIENCE ISN'T CLEAR: GREATER GLASGOW HEALTH BOARD v DOOGAN AND ANOTHER [2014] UKSC 68

The Supreme Court's judgment in Doogan is a judicial review of a decision by Greater Glasgow Health Board regarding the scope of the conscience-based exemption in section 4(1) of the Abortion Act 1967. The case progressed through the Outer and Inner Houses of the Court of Session in Edinburgh before final judgment was delivered in the Supreme Court by Baroness Hale on December 17 2014. The Supreme Court eschewed consideration of the human rights dimension of the case (which had featured in the Outer House decision) and approached its judgment as 'a pure question of statutory construction'. This commentary engages with the judgment on its own terms, assessing it as an exercise in statutory interpretation, and leaves it to others who may wish to do so to comment on the human rights aspects of the case.

The scope of the conscience-based exemption in Section 4(1) of the Abortion Act 1967: Doogan and Wood v NHS Greater Glasgow Health Board [2013] CSIH 36

Doogan is a judgment of the Inner House of the Scottish Court of Session in an action brought by two midwives ('petitioners' at first instance and 'reclaimers' on appeal) for judicial review of a decision by Greater Glasgow and Clyde Health Board ('respondents'). At issue in the litigation was the scope of the conscience-based exemption contained in section 4(1) of the Abortion Act 1967, which included consideration of where the burden of managing the exemption should fall. The court of first instance (Outer House) had held that section 4(1), which exempts people with a conscientious objection from having to 'participate in any treatment authorised by this Act', ought to be read in light of section 1, which was the authorising provision. On the analysis adopted by the Outer House, any activity which was not unlawful before the 1967 Act came into force, and which therefore did not require to be authorised by section 1, was not covered by section 4(1). Roles which consisted of 'supervision, delegation, and support' were held not to fall within the scope of section 4(1) for this reason. The Inner House rejected the argument that the scope of the exemption in section 4(1) must be coextensive with the scope of the authorisation in section 1, and held that section 4(1) covered the 'whole process of treatment' given for the purpose of terminating a pregnancy. For the Inner House, therefore, 'supervision, delegation, and support' of staff directly involved in the abortion process did constitute the kind of 'participation' that a person could be exempted from under section 4(1). Moreover, the court took the view that the reclaimers' interpretation of section 4(1) was also to be preferred in terms of its likely management consequences. The appeal succeeded, and the Health Board has begun the process of appealing to the UK Supreme Court.

[Psychological harassment]

Two types of harassment are distinguished: sexual and psychological. In the private sector, according to French labour laws and the penal code, psychological harassment is actionable. It is up to the employer to prove the absence of harassment. The sanctions incurred can be up to 5 years imprisonment and a 150,000 euro fine and various measures of compensation for damages can be envisaged.