Freedom of Conscience
Baroness Nuala O’Loan
“It cannot be consistent with conscience to say, “I cannot do this, but I will order you to do it”. If one delegates, supervises or supports an activity, one is not unreasonable in concluding that one shares moral responsibility for what happens.”
Good morning Ladies and Gentlemen. It is very good to be here today and I congratulate Tracy Harkin and the Iona Institute for the initiative in convening this conference today, and in bringing the distinguished speakers to whom I have had the pleasure of listening today.
Our rights to freedom of speech, belief and religion (which includes the right to have no religion) are rights for which people fought over centuries. They were, it seemed the product of the values which informed our society. They give us a right to exercise our conscience in thought word and action, but they are not absolute.
Exercising one’s conscience in the workplace is something which came into public consciousness during the First World War when the right not to go to battle, if you had a conscientious objection to killing your fellow man, was recognised. 16,000 men were excused from conscription to military service on grounds of conscience. Some, such as Quakers, did so because of their religious beliefs. Others, such as radical socialists, did so out of political principle.
Then, during World War II, there were 60,000 registered conscientious objectors. It was not easy for them—maybe some would say it was not easy for others who fought. It was possible to accommodate conscientious objection even at this most perilous time. The United Kingdom, therefore, has had a long and proud record of recognition of rights of conscience and respect for conscience.
They have been given legal effect in international and domestic law through the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the European Charter of Fundamental Rights. Since shortly after the Second World War these rights have been regarded as part of a package of fundamental human rights.
Article 9 of the Human Rights Act, which is now part of our legislative framework, expressly enacts a right to freedom of thought, conscience and religion; it includes freedom to change 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. From time to time we hear talk of the repeal of the Act, but thus far it is safe.
This freedom is limited only as prescribed by law and only to the extent 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.
In 2011, the European Court of Human Rights interpreted the Article 9 right to “freedom … to manifest … belief” to include conscientious objection and overturned the conviction of an Armenian Jehovah’s Witness for his refusal to perform military service at a time when there was no other option available to him.
It is those rights which underpin in law our rights of freedom of conscience and our rights of conscientious objection to being involved in processes or actions which we believe to be morally wrong.
The struggle, and it is a struggle, to articulate this in terms which will persuade the secularised society in which we live is profoundly difficult. It is made even more difficult when different churches and church people have different views of what is sacred, not negotiable. Even life is one of those issues. I will speak later about the right of conscientious objection in the work place.
But we have so many different understandings of what is morally right, of what conscience demands of us. Let me give you an example. At intervals attempts are made in the US Congress to change America’s gun laws,. 64% of all homicides in the US are gunshot killings. in 2014 there were 8124 gunshot homicides, most of them single victim homicides, but some like the 49 deaths in Florida mass shootings. You are as likely to die in the US from a gunshot homicide as from a car accident.
There is this perception among some Americans that they need their guns to defend themselves and that the constitutional right to carry arms is something which a right which must not be diminished in any way. I have often thought about the fact that this right, so cherished, results in such a high level of deaths by gunshot. In the UK only 4% of homicides are gunshot killings.
A few years ago in Rome at the Annual Meeting of the International Catholic Legislators network, discussing the sacredness of life, and very much focussed on abortion, I challenged our US members on this issue of gun law and the extent to which America’s gun laws contribute to the frequency with which guns are used. There were those rounded on me thoroughly, accusing me of ‘politicising the right to life’ in this way, as they put it. There were complaints to the Cardinal attending the meeting.
Sometimes our lived experience can result in the creation of something which is not quite consistent with our fundamental beliefs. I think that is what has happened. There is a need to guard against the erosion of our fundamental beliefs as our policies and values as society evolves. If we are not careful we can become almost not immune, maybe, but less observant of that which instinctively and in conscience we believe to be wrong.
Think about the unborn child, think that it is in that context that one of our deepest conflicts as a nation is exposed. Put simply the mother who wants her child is carrying a baby, an unborn baby, a little child. The woman who does not want, or feels she cannot carry her child, for whatever reason, does not in the eyes of pro-choice activists carry a baby. She has a foetus. That is all. It goes further. There was rejoicing recently that doctors are now able to create a 3D image of an unborn baby’s heart, identify the exact nature or scope of a particular cardiac problem which a child has, and prepare them for surgery immediately they are born, knowing what the problem is. That mother is definitely expecting a baby.
Yet when a later term abortion is carried out and a living child is born, perhaps because the normal procedures of injecting potassium chloride into the baby’s heart to ensure that it is delivered dead, has not been followed, that child may well be left to die, cold, uncared for, rejected. It could live but it will not be nourished to enable that life. We know that about 30 babies die that way each year in the UK. To me this is unthinkable. Yet that is where we are.
And so last year 56 million children were aborted across the world – one in four children. In England and Wales only, in 2017, the latest year for which statistics are available, there were 192,900 abortions for women resident in England and Wales and 197,533 abortions including non-residents abortions. We know that the law has been routinely flouted: that doctors pre-sign forms and that they may never even see the women presenting for abortion, that babies are aborted because they are little girls. One of the questions I ask myself constantly is how can a pro-choice feminists advocate for abortion when in so doing so many little girls who should be born will die, and the reality is that sometimes they die because they are little girls? And what of the children aborted because they have things like Downs Syndrome, even because they have club feet and cleft palates, things which are easily fixed. I met a beautiful little girl once who was born with a club foot. She had her treatment and the day I met her she had the loveliest little flowered wellington boots on, and when she danced lights sparkled on them. Delightful.
It’s not just abortion though. The other issue which raises major ethical issues is how life ends.
There is huge debate about dying, and about whether people should be allowed the right to ask doctors to terminate their lives for them (euthanasia), or to die by assisted suicide. Regular press articles tell us terribly sad stories of ill people who have chosen to travel form the UK to places like Dignitas in Switzerland to end their lives because they cannot be euthanased or die through assisted suicide here. The situation is often presented as one in which dreadful suffering has been brought to a gentle, dignified, painless and merciful end through the administration of drugs. The argument goes that it is inhumane to expect people to suffer as they can be seen to be suffering and that ‘we would not allow an animal to suffer like that.”
The pro-choice lobby, the advocates of the decriminalisation of abortion and assisted suicide use the language of compassion, care, dignity, love, choice. They too have a right to freedom of thought and belief. As a society we have to find an accommodation between these competing articulations of freedom of thought, conscience and religion.
That accommodation can, and has occurred through the provision of conscientious objection rights. As respect for conscience applies to those who refuse to participate in the taking of life in war, so it has been applied to those who refuse to be involved in what they see as the taking of life through healthcare practice. There have been some encouraging developments where there has been recognition development of the right of conscientious objection. I think of the case in October last year, when the Supreme Court of Norway found that Dr. Katarzyna Jachimowicz, a Polish Catholic doctor who lost her job for refusing to insert abortifacient devices acted within her rights when refusing to follow through with a medical procedure to which she had a moral objection.
In the UK we seem to have gone backwards rather than forwards. In 1967, when the UK legislated to decriminalise abortion in certain limited circumstances, ( and the projection was for 5,000 abortions a year) provision was made for conscientious objection for doctors and nurses, because it was understood that what was being made legal was regarded by some as the taking of life. Were it not so, there would have been no need for protection of conscience. In 1990, when the Human Fertilisation and Embryology Act was passed, there was again limited provision for conscientious objection, and in every instance in which an attempt has been made in Parliament to promote Parliament assisted suicide or euthanasia, there has been provision for conscientious objection. Where conscientious objection is permitted, it is not absolute. Medical practitioners must assist in a crisis to save life or to prevent grave or permanent injury. It is a complex field. In the UK, some have statutory rights. Some, like GPs, have contractual rights not to engage, but it is a contractual right, not a statutory right, and some, such a pharmacists have no rights at all.
The interpretation of the conscientious objection clause was narrowed in 2014, when the case of Greater Glasgow Health Board v Doogan and Another was heard by the Supreme Court. In this case, two senior midwives conscientiously objected to having to delegate tasks to, supervise or support those directly involved in abortion. They had been able to assert this right of conscientious objection for their whole nursing careers—which started very shortly after the Abortion Act was passed—until an amalgamation of hospitals led to their being required to do this work. Ultimately they could not, in conscience, have any role in the provision of abortion. Those skilled, compassionate, experienced midwives were unable to continue to serve as midwives, doing what they had done all their professional lives: helping women through the sometimes difficult process of carrying and bearing a child. I know that is difficult; anybody who has carried a child knows the sensitivities attached to it. Those good women were lost to the profession because the Supreme Court decided that indirect roles taken by nurses and midwives were excluded from protection under Section 4 of the Abortion Act.
It cannot be consistent with conscience to say, “I cannot do this, but I will order you to do it”. If one delegates, supervises or supports an activity, one is not unreasonable in concluding that one shares moral responsibility for what happens.
Does it matter that we force people to act against their conscience – to do that which they believe to be morally wrong. Of course it does. Professor Dan Brock, a leading bioethicist at Harvard, described conscience as the basis of an individual’s moral integrity, saying that it defines who, at least morally speaking, the person is. Maintaining moral integrity, he asserts, requires that a person does not violate their moral commitments. That is why we allow conscientious objection in healthcare, so that people can maintain their moral integrity, without which major health and other problems will almost inevitably emerge. Through conscience, each of us decides whether an action is right or not. As Dr Sara Forage and Dr Mary Neal state, conscience is fundamental to moral agency and a proper feature of all areas of human endeavour, including professional practice. The provision of medical services, of course, is never value-free. Healthcare practitioners make moral judgments all day, every day, and these are often very difficult judgments.
It is for his reason that I have a Bill before Parliament which seeks to provide rights of conscientious objection to medical practitioners. Its provisions seek to affirm as a matter of statute that no one shall be under any duty to participate in activities they believe involve the taking of human life, either in the withdrawal of life-sustaining treatment or in any activity authorised by the 1967 or 1990 Acts. Such a reform would re-establish legal protection for medical conscientious objectors and reaffirm the Article 9 rights of healthcare workers. It would give reality to the protections afforded in the Equality Act.
There is a serious shortage of healthcare professionals; we are having to bring doctors and nurses from abroad. We spent £100 million bringing 3,000 GPs from other countries here this year, we are short of 3,500 midwives, and in 2016, according to the Royal College of Midwives, we spent nearly £100 million on agency nurses. There is a problem. Many young doctors, midwives and other healthcare professionals are leaving the UK. There are many reasons for this, but one of them is that those who labour at the coalface cannot engage in certain activities. We invest in their training; we need their skills—it is time to accommodate them.
Ireland has similar problems.
A good friend of mine, Ian McColl, Lord McColl is a very distinguished surgeon. For many years he and his wife Jean, also a surgeon, worked together through all their holidays on the Mercy Ships, bringing essential life-giving surgical interventions to people in places like Liberia. He said this recently “It seems to me an important part of the British liberal constitutional tradition that we place a lot of emphasis on freedom. This freedom has many aspects, but central to it is the opportunity to work in one’s chosen profession without being required to act in a way that violates one’s own identity. Ours is not a constitutional tradition in which we use the law to compel people to decide between acting against their deepest moral convictions and losing their livelihood. The hounding of people out of their jobs on this basis is deeply illiberal. Although our constitutional tradition is closely associated with liberty, there are moments in our history when we have failed in this regard.” Speaking of the 34 amendments which have been tabled to my 2 clause Conscientious Objection (Medical Activities Bill) he said, I fear that historians looking back on this set of amendments in a hundred years’ time might recoil from them and wonder how on earth we came so close to stepping away from our historic British commitment to liberty.
I think we have to ask ourselves now to what extent does society really permit us to express these freedoms of speech, belief and opinion? And to what extent is the restriction on freedom of speech a necessary and proper restriction? We can recognise the value of a restriction that prevents those who would wish to do so from calling for someone to be killed, from expressing extreme racist views: those have come to be called hate crimes. The problem is that the boundaries of what is known and understood shift constantly, and that in consequence the limits of what can be said and done shift equally constantly.
And so I find myself asking ‘what are our values as society?’ Sometime I really wonder. I grew up able to identify Christianity in all its forms as a massive influence in terms of philosophy, philanthropy and societal development. Now much that I accepted and still accept as fundamental values seem be rejected in the world in which I live.
And that presents problems. Many of you will be Christian/ Catholic. But even within our ranks there are questions about our fundamental values and the extent to which they are accepted in the context of the demands and culture of the many groups which exist within within the ‘confines of a common civilisation?
The fundamental values of respect for life from beginning to natural end, of compassion, of offering one’s life for another, of caring for the weak and the vulnerable, of respecting, not isolating and forgetting, the old and the sick, of providing education and health care, and of doing all in the name of the Lord can seem to many of those of us of religious faith to be unchallengeable. Yet in the modern secular world they are much challenged.
In my Bill currently before the House of Lords I have sought to provide a right of conscientious objection to those medical practitioners who feel morally unable to participate in such processes.
The opposition to it has been fierce.
It has been suggested that providing the right of conscientious objection to medical practitioners so that they are not under any duty to participate in activities they believe involve the taking of human life, either in the withdrawal of life-sustaining treatment or in any activity authorised by the 1967 or 1990 Acts, we would:
- abandon patients or their families.
- cause them to suffer
- force people to be treated against their will
- restrict access to abortion
- allow patients to force medical professionals to do anything.
- reject or deny the welfare and wishes of patients
- deprive people of the right to reject treatment
- have a negative effect on hospice care.
None of these assertions are true. That is where reasonable accommodation comes in. And there has been some reasonable accommodation in England and Wales in the past.
What the bill would do
- is to provide a right of conscientious objection to those who genuinely object to engaging in particular medical situations.
As a former Lord Chancellor of England and Wales, Lord Mackay said “We have to make the point that the obligation to provide these services is not on the employee but on the health service itself. Therefore, it has the responsibility of making the necessary arrangement to accommodate the views of those who think that these activities are wrong. I do not believe that it is right that the health service or any other service should rely to a substantial extent for its success in requiring any of its employees to do what they think to be wrong.”
- so we must highlight the fact that the responsibility to provide National Health Service care is a responsibility of the health service, not the individual employee
- give statutory protection—not guidance, not administrative protection—to staff who do not have it, because the right to conscientious objection is not a universal right accorded to all medical practitioners by statute under the Abortion Act. It does not protect, for example, GPs and pharmacists.
The Bill is about allowing medical practitioners to act in accordance with their conscience. It is about recognising that people who have a fundamental objection to doing something should not be forced to arrange others to do it. It is about making the health service inclusive so that all medical practitioners can take their rightful place in the discipline of their choice rather than being restricted to areas in which they can work or being forced to leave the United Kingdom. Lord Mackay, speaking in support of the Bill said, the Bill is about asserting that it is not necessary or right to force people to do things that they hold to be wrong.
It is about legislating to ensure that we have the best possible health service, staffed by the best possible medical practitioners, providing the service in accordance with the wishes of the patient and capable of accommodating the conscientious objection of medical practitioners.
As a society we need to reflect on these things. We surely have a duty to ensure that politicians too can never be required to vote or act against their own deeply held beliefs. Politicians across Ireland and the UK need great courage to stand for what they believe in. Sometimes that can be difficult. People everywhere need politicians who are prepared to act in accordance with their beliefs, even when they do not conform to party policy.
We saw what can happen when parties abrogate their responsibilities to their members here in Belfast almost two years ago.
On 3 April 2017 Belfast City Council debated an apparently innocuous motion, that “This Council recognises that all individuals have the right to healthcare, which includes that healthcare should be physically accessible and within safe reach for all sections of the population. People should not face fear and intimidation when accessing healthcare services.
Therefore, the Council condemns all harassment and intimidation taking place outside facilities in Belfast and Northern Ireland that offer reproductive healthcare, including attempts to physically block access to facilities, verbal intimidation, and the filming and recording of staff and clients entering and leaving the building.”
One could ask how could anyone object to such a motion? Why was such a motion necessary? It was, though, one of those tricky situations in which politicians can find themselves.
All was not simple. The debate which ensued referred to “activism” outside “healthcare facilities” in Belfast, where it was alleged that the users of reproductive healthcare facilities had been harassed by activists.
Everyone knew that this motion was not a general motion as it appeared to be. Rather it was about challenging pro-life protesters who had been protesting in support of life in one Belfast street. The debate was articulated in noble terms – that people, ‘mainly women’ should not be harassed when trying to seek advice about abortion in situations where the pregnancy was the rest of ‘rape incest, fatal foetal abnormality.’ There was talk of “verbal and physical assault of those seeking such advice,” of “a barrage of unsolicited material” and “verbal intimidation.”
Although the motion was crafted as an apparent attempt to protect those using Belfast healthcare facilities, actually it was about the pro-life campaign’s activities at the Marie Stopes Clinic in Belfast. There was reference to “that building,” and a request was made for a recorded vote, so that the public could see who voted and in what way.
I should be very clear at this point that I do not support harassment or intimidation of any kind. Where they occur they should be dealt with by the law. That is what happens.
One of the parties considered the motion and rightly concluded that it is opposed to intimidation of any kind. They then concluded that the specific motion did not relate to any change in the law in relation to abortion rights, and issued “a clear directive that … councillors should support the motion.’”
Three …Councillors, decided that they couldn’t vote for the motion on grounds of conscience.. They were all suspended from the party. One of them was reported to have said, “I’m disappointed that the … has suspended me for voting pro-life. I thought the position of the party was pro-life…I don’t support the harassment or intimidation of anyone, but I do believe in standing up for the rights of the unborn.”
On 19 June, still suspended by their party for their actions, those three Councillors resigned. One of them said ’Moral issues should be a matter of personal conscience and party policy should reflect that.’
It is ironic that this meeting of Belfast City Council started with the reading by the Lord Mayor, of a verse from St Paul’s Letter to the Romans, chapter 12:2, ‘Do not conform to the pattern of this world, but be transformed by the renewing of your mind. Then you will be able to test and approve what God’s will is – his good pleasing and perfect will.’
Political parties need to recognise these fundamental freedoms and not put their members is such a position. They need to be able to negotiate the tricky waters of cleverly word motions which do not name what they are really about, by recognising the right to freedom of conscience and hence not compel members to vote for a motion, they consider to be morally wrong.
I do not believe anyone should ever be subject to intimidation. I believe that the human right to freedom of opinion and expression on this issue, is one of the most basic human rights which must be protected. The right to speak and protest in defence of the unborn is profoundly important. Children in the womb cannot speak up to assert their right to life. They must rely on others. There is no right to abortion under Human Rights Law, although many seek to claim that there is. For me the pro-life protest was, and is, the expression of those freedoms. If protestors transgress the law, then they should be dealt with under the law.
Abortion is illegal under the law in Northern Ireland, except in very limited circumstances. there are those who are working very hard to change that. To drag those of us who profess the right to life from conception to natural end into the modern world. They are seeking now to decriminalise abortion through Parliament at Westminster, because there is no Assembly here. Decriminalisation means what it says that there will be no crime in the conduct of any abortion. Scotland, England and Wales have partial decriminalisation What is sought now is to decriminalise abortion completely.
Those who seek in conscience to protect life have much to do.