Last week’s vote in the Parliamentary Assembly of the Council of Europe (PACE) in favour of religious freedom was a welcome boost for those concerned about freedom of speech and conscience. In the past number of years, such victories have been all too rare.

Under consideration was the McCafferty report which proposed to force health-care workers under certain circumstances to perform abortions against their will. A robust freedom of conscience amendment was added thanks in part to the efforts of Senator Ronan Mullen.

Since laws made by the Council of Europe are not binding, however, the impression might be given that the victory was mainly symbolic. However, UK barrister Neil Addison who spoke at the Iona Institute conference on religious freedom last month suggests that the PACE resolution might have more legal weight.

In his Religion Law Blog, Mr Addison points out that the Council “does have the role of defending the European Convention on Human Rights and it administers the European Court of Human Rights”.

Because of this, resolutions by the Council of Europe are considered by the Human Rights Court when making decisions concerning the Convention.

According to Mr Addision, it is also possible to refer to PACE resolutions in UK Courts.

He says: “I would see this Resolution defending Conscientious Objection as being valuable in protecting medical staff who may be pressurised to participate in or indirectly assist in abortion.

“The resolution specifically refers to the fact that ‘No person, hospital or institution shall be coerced, held liable or discriminated against’ because of their refusal to ‘accommodate, assist’ with abortion. The fact that the resolution specifically refers to discrimination could be quite significant in terms of the anti-discrimination provisions in The Equality Act 2010.”

At the moment most British medical staff who object to abortion rely for their protection on section 4 of the Abortion Act 1967 which says “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”

This law was tested in 1988 in a UK case called Janaway v Salford where a doctor’s secretary (Janaway) refused to type a referral letter for an abortion and was unsuccessful when she claimed that she was protected by s4.

The House of Lords, then the highest UK court, found that s4 only applied to those who were being required to take part in an abortion (e.g. the gynaecologist, the anaesthetist, or the assisting nurses) and did not cover activities such as signing an abortion certificate or referring a patient to another doctor who would carry out an abortion.

Addison says that the effect of the Janaway case “has been an assumption that doctors in particular only have very limited legal rights to object to involvement in the abortion process”.

But he suggests that, on foot of the PACE vote, “Janaway is no longer the last word on the subject of conscientious objection”.

He points out that the UK’s Equality Act make it unlawful for an employer to indirectly discriminate by applying a provision, criterion or practice which puts persons (for example, with a religious or philosophical objection to abortion) at a particular disadvantage when compared with persons (who do not have any religious or philosophical objection to abortion). The PACE resolution suggests that attempting to pressure any employee into assisting in an abortion in any way would constitute such discrimination.

The defence to an allegation of indirect discrimination is that the “provision, criterion or practice” is a “proportionate means of achieving a legitimate aim”.

But Addision says it is when Courts are applying the test of proportionality that the PACE resolution might come into play to protect medical or even administrative staff who do not want to assist in the procurement of abortion.

He adds: “Similarly religious hospitals or organisations which may find themselves being pressurised to agree to abortion services as a condition for receiving NHS contracts could use the resolution to allege that they were being discriminated against.

“Certainly the resolution will not provide a magic bullet defence to any person or organisation who finds themselves being pressurised with regard to abortion but it certainly provides a moral and potentially a legal support to those people who recognise that unborn children are human beings too. After all everyone who is reading this blog was a foetus once.”