NI: Minister of Health correct person to decide on gay blood ban
The Court of Appeal has overturned a High Court decision in which it was found that the decision of the Minister for Health not to alter the lifetime ban on males who have sex with other males (“MSM”) was irrational and infected with apparent bias.
The High Court had also found that the Minister was not empowered to make the decision, as the Secretary of State for Health was responsible under Directive 2002/98/EEC and as designated by the Blood Safety and Quality Regulations 2005 for the determination of appropriate deferral periods.
Further, it was found that the Minister had no power to act incompatibly with EU Law, as technical standards and requirements under Community obligations were reserved matters under the Northern Ireland Act 1998.
Finally, the Minister had no authority to act without bringing the matter to the attention of the Executive Committee, which he failed to do, thereby breaching the Ministerial Code.
The Minister and his Department had appealed against the decision, while the Secretary of State for Health had submitted that he was not responsible for the determination of the appropriate deferral periods in Northern Ireland.
The Court of Appeal allowed the appeal, and found that the Minister was the correct decision maker.
It first considered the regulatory regime, as contained within EU Directives 2001/83/EC, Directive 2002/98/EC and Directive 2004/33/EC, as implemented by the Blood Safety and Quality Regulations 2005.
They then considered the standing of the applicant, noting that under s18(4) of the Judicature (Northern Ireland) Act 1978, an applicant for judicial review must have a sufficient interest in the matter to which the application relates, and that following Re D’’s Application NICA 14, the courts in recent years had taken a liberal approach to standing.
The respondent, as a gay man who wished to give blood, was subject to a separate life time ban due to having accepted money for sex. However, the issue was one of public interest, and there was no dispute that the respondent would have had full standing in the absence of having accepted money.
The Court was therefore satisfied that he had standing.
It found that the relevant provisions in the EU in relation to blood donors was not a reserved matter. General matters of public health were neither excepted nor reserved matters and consequently fall to be dealt with as transferred matters. By virtue of section 23 (2) of the Northern Ireland Act the prerogative and other executive powers in respect of transferred matters are exercisable by any Minister or Northern Ireland department.
The Minister therefore had competence to act in accordance with the Ministerial Code as required by the Northern Ireland Act 1998.
However, the Court found that the decision was one that should have been brought to the attention of the Executive Committee and the Minister’s failure to do so meant that he had no Ministerial authority to take that decision, under s28A(10) of the Northern Ireland Act.
They noted that thereafter the Minister had reconsidered his decision, and that the Ministerial Code did not prevent a Minister from seeking advice and gathering information, therefore, there was no further breach of the Ministerial Code.
In relation to the findings of irrationality and apparent bias, the Court of Appeal considered statements made by the Minister, in which he accused courts of attacking Christian values, and asserted that he was well within his rights to maintain a lifetime ban.
They applied the test from Porter v Magill 2 AC 357 by asking whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.
They found that there was no evidence that the Minister had been influenced by his Christian beliefs, but that there was evidence that he had evaluated the various relevant factors before adopting on a precautionary basis the status quo.
The Court therefore found that a fair minded and informed observer would not have concluded that there was a real risk of apparent bias.
The respondent had also cross-appealed, claiming that the trial judge had failed to deal with his claim that the imposition of a lifetime deferral for MSM is disproportionate and in breach of EU law.
On this issue, the judges were split. The Lord Chief Justice allowed the cross-appeal of on the basis that the maintenance of a permanent deferral for MSM was disproportionate and contrary to EU Law.
However, Lord Justice Gillen and Lord Justice Weir did not agree, finding that the Minister should be offered an opportunity to make a decision on the deferral period, in light of all the relevant material that has come into being since 2011.