Blood Donations: Ban on Gay Men

Oral Answers to Questions – in the Northern Ireland Assembly at 2:15 pm on 3rd December 2013.

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Photo of Steven Agnew Steven Agnew Green 2:15 pm, 3rd December 2013

7. asked the Minister of Health, Social Services and Public Safety, in relation to his response to the 'Ban on Blood Donations from Gay Men' debate in the Assembly on 5 November 2013, to outline the rationale behind his concerns that he would not get a fair hearing in the Court of Appeal. (AQO 5166/11-15)

Photo of Edwin Poots Edwin Poots DUP

On 8 November, I replied to the Member’s priority question for written answer pointing out:

"I have not said that the Courts have failed to act impartially in cases in which I have been involved."

I also remind the Member that there is not, and never has been, a ban on blood donations from gay men.  Rather, there is a ban on men who have oral or anal sex with other men.  The restriction relates to behaviour as opposed to orientation.  A number of other categories of individuals are also excluded from donating.  The judge concluded that any change in Northern Ireland to the donor restriction on men who have sex with men was not my responsibility.

Photo of Steven Agnew Steven Agnew Green

On 5 November, you asked:

"do I believe that I would get fairness in the Court of Appeal or would there be a circling of the wagons?" — [Official Report, Vol 89, No 2, p55, col 2].

You have publicly raised a concern about the fairness of our appeal courts.  Could you please outline when you believe that there has been a circling of the wagons in the past or are you simply scapegoating the courts —

Photo of William Hay William Hay Speaker

Order.  I am protecting the Member plus the Minister.  I am being very careful that the Member does not stray into an area that could be seen as contempt of court.  I just warn the Member and the Minister.

Photo of Steven Agnew Steven Agnew Green

Minister, could you outline any evidence that you have on which to base your concerns or are you scapegoating the courts for your own errors?

Photo of Edwin Poots Edwin Poots DUP

The Member asks a question.  If he thinks that some sort of deity exists in courts and that they are places of absolute perfection, I have to say that I am not in a similar place.  However, I am not alone in that.  In this House — in the Committees of this House — His Honour Judge Marrinan, with reference to the appointments committee in the courts, which is headed up by the most senior people in the courts, said of an appointment:

"It was an illegal act, in my view... it was so irrational and so unfair that, had I felt confident about going for judicial review and not fearful that I might end up bankrupt by doing so, I would have been very hopeful, given a fair wind, that a judge would have found the decision to be irrational and have the appearance of bias against me.  I would have rather hoped that that would be the decision.  Unfortunately, I just did not have the confidence, given the factors that I have just mentioned and the fact that a judge would then be put in the very difficult position of having to make such findings against the highest judicial figures in the land.  I just did not feel confident that I would succeed, nor did my skilled QCs."

Those QCs were David Schofield and Nick Hanna.  Those are not the words of Edwin Poots; they are the words of His Honour Judge Marrinan.

Photo of Paul Givan Paul Givan DUP

Lord Sumption, in a speech made only two weeks ago, made a number of comments about the judiciary and the attempts through which judge-made law is now undermining the democratic process.  He said that he believes that politics is a better way of resolving questions of social policy, rather than judge-made law.  Does the Minister agree?

Photo of Edwin Poots Edwin Poots DUP

That is a matter that I have stressed to the House over and over again.  I think it is so poor that some Members of this House seem to think that it would be better if laws were made in courts, as opposed to being made in a legislature and then enacted in courts.  That is how the state was originally devised:  that Parliament made the laws and the courts ensured that the laws were enacted properly.  Lord Sumption quite rightly pointed out:

"It is important to bear in mind that in a Parliamentary democracy the legislature can selectively enact into law whatever parts of the Convention or the case-law of the European Court of Human Rights it pleases. We do not need the Convention in order to introduce changes for which there is a democratic mandate. The Convention, and its judicial apparatus of enforcement, are only necessary in order to impose changes for which there is no democratic mandate. It is a constraint on the democratic process. I think that most people would recognise that there must be some constraints on the democratic process in the interests of protecting politically vulnerable minorities from oppression and entrenching a limited number of rights that the consensus of our societies recognises as truly fundamental. Almost all written constitutions do this. But the moment that one moves beyond cases of real oppression and beyond the truly fundamental, one leaves the realm of consensus behind and enters that of legitimate political debate where issues ought to be resolved politically."

This House should be making those key decisions.