Conscientious Objection in an Uncertain Time: New Challenges in Ireland

Abstract

This paper explores the legal framework concerning the conscientious objection rights of employees in Ireland and critically considers how the various sources within that legal framework may overlap and intersect. It specifically considers the uncertainties created by section 22 of the Health (Regulation of Termination of Pregnancy) Act 2018 and its interaction with the Constitution of Ireland, the common law, other statutory regimes in employment law, EU law and the European Convention on Human Rights. In conducting this analysis, the paper attempts to map out likely future directions of travel within the law of conscientious objection in the context of termination of pregnancy in Ireland.

1. Introduction

The objective of this paper is to offer an exploration of the multi-layered legal framework concerning conscientious objection rights of employees in Ireland1 and to critically consider how the various legal sources within that legal framework may overlap and intersect. Specifically, it considers the uncertainties created by section 22 of the Health (Regulation of Termination of Pregnancy) Act 2018 (hereafter: “the Act”), which concerns conscientious objection in the context of termination of pregnancy. This is timely since there is currently a dearth of analysis considering the legal implications of this provision and the ways in which it is likely going to interact with the Constitution of Ireland, the common law, other statutory regimes in employment law, and other fundamental rights guarantees under both EU law and the European Convention on Human Rights. Comparative reflections are offered on key recurring themes in case law and academic accounts of the law on conscientious objection, with a view to mapping out likely future directions of travel within the employment law framework in this jurisdiction.

The overall context for this paper is the authors’ CORALE Study research project (Conscientious Objection after Repeal: Abortion, Law and Ethics), which is an interdisciplinary research collaboration funded by the Irish Research Council, with the objective of investigating, for the first time, the operation of the right to conscientious objection in termination of pregnancy services in Ireland. Through a combination of empirical data collection and doctrinal/theoretical research, the CORALE Study will develop a coherent framework for situating conscientious objection within a system of access to termination services in Ireland in a manner that is proportionate, effective and legally robust. That framework will allow for the formulation of an evidence-based set of recommendations as to how the 2018 Act should be amended, if necessary, as well as recommendations on how it should be operationalised to address the practical issues identified.

Whilst this article does not draw on any of the empirical data gathered in the course of that project, its arguments and conclusions drew upon the interdisciplinary doctrinal and theoretical work of the project team, spanning, inter alia, law, ethics and midwifery.

This paper is necessarily exploratory in nature: it does not purport to provide an exhaustive account of the legal position concerning conscientious objection, but rather to identify the core elements of that framework to enable further analysis by scholars, policy-makers, and judicial and quasi-judicial decision-makers in this area.

2. Background to the Introduction of a Statutory Right to Conscientious Objection in the Context of Termination of Pregnancy in Irish Law

Following the insertion of the Eighth Amendment (Article 40.3.3°) into the Irish Constitution by a majority vote in a referendum in 1983, a near-total ban on terminations existed in Ireland. Article 40.3.3° is as follows:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right”.

The insertion of Article 43.3.3 in 1983 represented a significant victory for the Roman Catholic Church. It asserted its still considerable institutional and social power through the “pro-life” campaign to secure a unique constitutional position for the unborn. The substance of the amendment reflected the Catholic church’s near absolutist rejection of the admissibility of the termination of pregnancy, although this absolutism had a relatively recent provenance. For much of its history, the church held a gradualist approach to abortion and distinguished between the morality of early and late abortion. However, in the 19th century, the church began to insist that the full protection of the law should be given to the unborn “from the moment of conception” (note that the language of “the moment of conception” began to be used in Catholic teaching from the mid-19th century following Pius IX’s 1869 removal of the distinction between the animated and unanimated fetus), and this theological trajectory was sedimented in subsequent years.2 The Eighth Amendment gave legal expression to this moral position and with it the expectation that the Catholic moral principle of double effect would be invoked in medical care if the constitutional protections of the unborn and mother came into conflict. This sedimentation of this Catholic position in the Constitution was remarkable since it came at a time when attitudes to sexuality were liberalizing and the political power of the church seemed to be diminishing.

The legal implications of the Eighth Amendment have been comprehensively chronicled and analysed elsewhere (see, for example, Hogan et al. 2018). The constitutional position was entirely altered five years ago with the repeal of the Eighth Amendment following a landmark referendum in 2018. Although popularly referred to as the “Repeal” referendum, the effect of that referendum was in fact not only to “repeal” the wording of the previous article but instead to replace that wording with the following new Article in the Constitution: “Provision may be made by law for the regulation of termination of pregnancy”.

In light of the insertion of the above constitutional provision, the Oireachtas (the Irish parliament) enacted the aforementioned 2018 Act. Importantly, the General Scheme of “A Bill To Regulate Termination Of Pregnancy” was published in advance of the referendum (Department of Health 2018). This included, in Heading 15, a provision dealing with conscientious objection.

The Eighth Amendment was repealed and replaced in a referendum that saw a turnout of 64.5%, of whom 66.4% voted in favour of its repeal and replacement. This represented a significant change in attitude to the issue of the provision of termination services in the state, a change that had been signalled in various attitudinal surveys over the years (Payne 2001). The death in 2012 of Ms. Savita Halappanavar, who was refused a termination during miscarriage because a fetal heartbeat was detectable, galvanised support for a change in the constitutional prohibition of termination, particularly since the report into her death found that there was an overemphasis on the need not to intervene until the fetal heart stopped, which was a direct consequence of a strict interpretation of the requirements of Article 40.3.3 (HIQA 2013).

The 2017 Citizens’ Assembly further highlighted the extent of the change in attitude, recommending by 87% that Article 40.3.3 of the Irish Constitution should not be retained in full (The Citizens’ Assembly 2017). This change in approach to the ethics of abortion was in part a reflection of the demographic, cultural and political changes in Ireland in the intervening decades. Ireland had become more pluralist in terms of religious affiliation. Although Ireland remained a predominantly Catholic country, as evident in the 2016 Census, nonetheless, the percentage of the population who identified as Catholic in the census fell sharply from eighty-four percent in 2011 to seventy-eight percent in 2016.3 Orthodox Christianity, Islam and Hinduism saw significant growth, as did some evangelical Protestant denominations. Of equal significance was the rise in the number of religiously unaffiliated people, a group which by 2016 had grown to just under ten percent of the population. In addition to demographic changes, moreover, was the steep decline in religious practice and observance. The discovery of the extensive sexual abuse and its cover-up in the Catholic church, as well as the collusion of church and state in the incarceration of women in Mother and Baby Homes and Magdalene Laundries, accelerated this decline.

Through the months of political deliberation and debate on whether the Eighth Amendment should be repealed, reformed or retained, the theme of women’s moral autonomy and their right to make decisions about their own health and well-being, as well as that of their families, was paramount. The Joint Oireachtas Committee on the Eighth Amendment heard from campaigners on both sides of the debate, from medics, lawyers and civil rights organizations, as well as from women who had experienced hardship as a result of the constitutionalisation of fetal rights through the Eighth Amendment (Tuarascáil 2017). Indeed even campaigners who argued for the retention of the Eighth Amendment acknowledged the ethical complexities and personal hardships associated with aspects of the then Irish regime. In this context, there was a focus on the severe hardships encountered by women who could not access termination in circumstances of rape; because of vulnerabilities of age, mental health or poverty; or where a fetus had fatal abnormalities that compromised its chances of survival. In addition to these challenges of personal circumstance, the Repeal the Eighth Campaign also focused on the importance of trusting women, respecting their conscientious ethical decisions, and no longer seeking to control their autonomous decision-making through paternalistic and patriarchal systems of law and medicine (Hogan 2021).

The issue of whether and how conscientious objection would be recognised and managed was occasionally raised, especially once the shape of the legislation governing the termination of pregnancy became clear. Various professional bodies representing medics, nurses and midwives, pharmacists and others debated the conscientious objection provisions in the proposed legislation, as did civil society organizations and churches. The majority of the medical, nursing and midwifery professional organizations supported the legislation, including the provision for respecting the limited exercise of the right to conscientious objections of individual members (Latest 2018). However, one GP organization, namely, the National Association of General Practitioners, sought to exclude the obligation to refer from the limitations put on the exercise of conscientious objection.

Human rights and civil liberties organizations highlighted the importance of providing for the exercise of conscientious objection but noted that such provisions should not create barriers to access to termination. For organizations, including the Irish Human Rights and Equality Commission, the legislation needed to provide for the right to safe, timely and equal access to termination while guaranteeing the exercise of conscientious objection. It supported the published constraints on the exercise of conscientious objection, but it additionally recommended, in the same document, that “provisions governing conscientious objection, and related obligations to refer a pregnant woman to an alternative care provider, should cover a broader range of health and social care professionals than is currently allowed for” (The Irish Human Rights and Equality Commission 2018). Furthermore, it noted in the same statement that “providing for the early declaration and registration of such objections by medical practitioners will help provide for accommodation of conscientious objection in a way that does not adversely affect equal and timely access to services by women and girls”.

While many Christian churches supported the modification of the Eighth Amendment, all opposed unlimited access to termination in the first trimester. In this context, the Catholic church was highly critical of the legislation’s requirement that conscientious objectors refer a patient to another practitioner. In its submission, the Irish Catholic Bishops Conference noted that “This requirement may have the appearance of respecting freedom of conscience but, in reality, it requires a healthcare professional to cooperate in what he or she sincerely believes is doing harm to one patient and taking the life of another.” (Bishops’ Statement 2018). It also noted as problematic the exclusion of pharmacists from the exercise of conscientious objection.

Thus, throughout the campaign, there was some debate about the parameters of the statutory right to conscientious objection and its likely impact on access to termination. However, the Citizens Assembly made no recommendation in relation to conscientious objection, nor did the Joint Committee on the Eighth Amendment of the Constitution. However, the important issue of how the new statutory right to conscientious objection would impact the architecture of employment rights was virtually absent from the discussion. Absent too was the consideration of whether institutions could invoke an objection to their obligation to provide termination services on the basis of their ethos (i.e., as an institutional expression of conscientious objection).

3. Detailed Analysis of the New “Statutory Right” to Conscientious Objection in the Context of Termination of Pregnancy in Irish Law

The Short Title of the Act describes its purposes as follows:

“An Act to provide for and regulate termination of pregnancy; to make provision for reviews at the instigation of a pregnant woman, or a person on her behalf, of certain medical opinions given in respect of pregnancy; to make available without charge certain services to women for the purpose of termination of pregnancy in accordance with this Act and, for that purpose, to amend the Health Act 1970 and certain other enactments; to provide for offences in respect of the intentional ending of the life of a foetus otherwise than in accordance with this Act; …. and to provide for matters connected therewith”.

It is notable that there is no inclusion whatsoever of any reference to conscientious objection in the Short Title. At most, a possible reference might be identified by way of indirect allusion in the words “to provide for matters connected therewith”. Even if that indirect allusion is found to be contained in the Short Title, it is still abundantly clear that conscientious objection is not identified in any central sense as a purpose of this legislation. The relevance of this point will become apparent in the statutory interpretation engaged in below.

For present purposes, our focus is on section 22 of the Act, which is entitled “Conscientious Objection” and states the following:

“22. (1) Subject to subsections (2) and (3), nothing in this Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 9, 11 or 12 to which he or she has a conscientious objection.

(2) Subsection (1) shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 10.

(3) A person who has a conscientious objection referred to in subsection (1) shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned…”.

Clearly, it will soon fall to the courts and other relevant decision-making bodies (such as the Workplace Relations Commission, which is the statutory body responsible for adjudicating first-instance employment disputes under Irish law, pursuant to the Workplace Relations Act 2015) to engage in statutory construction of the above provision. Whilst there can be no certainty as to the precise conclusions that any court or quasi-judicial body will draw in the future about the precise meaning and import of the above provision, nevertheless, several important points arise from a close reading of the above section.

First, it is significant that there is no definition provided, either in section 22 or in the Act overall, of the term “conscientious objection”. The section is contained beneath the title “Conscientious Objection”, but that term itself is nowhere defined in the Act. This will necessitate careful consideration of the contours and scope of conscientious objection in Irish law (both having regard to the Act and more broadly).

A second point of note is the parameters of section 22(1), both in terms of their breadth and their limitations. For example, the opening words, “nothing in this Act shall be construed…”, afford a near blanket protection to the conscientious objector (subject to subsections (2) and (3)).

Also of significance here is that the section provides that no obligation shall be placed on the individual practitioner to “carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 9, 11 or 12 to which he or she has a conscientious objection.” The reference to “practitioner” is important since only certain designated categories of practitioners are explicitly protected under this provision, which is limited to medical practitioners, nurses or midwives. We will return to this point below when considering the nature of conscientious objection outside the purview of the 2018 Act. It should be noted, however, for present purposes, that the medical practitioner, nurse or midwife has no obligation to carry out or to participate in carrying out a termination of pregnancy to which they have a conscientious objection; there is no requirement that the putative conscientious objection be explained or that any particular criteria or threshold must be reached in order to assert a conscientious objection in section 22(1).

Clearly the open-ended and undefined terms of “carry out or to participate in carrying out” will require scrutiny in any case in which an individual practitioner purports to rely on this section. Case law from other jurisdictions may be of assistance in this regard and we will turn to that below.

Section 22(2) provides that section 22(1) “shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 10”. Section 10 states the following:

“a termination of pregnancy may be carried out in accordance with this section by a medical practitioner where, having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that (a) there is an immediate risk to the life, or of serious harm to the health, of the pregnant woman, and (b) it is immediately necessary to carry out the termination of pregnancy in order to avert that risk”.

Another key challenge in terms of statutory interpretation which is presented by the 2018 Act is the provision contained in section 22(3), which provides that the conscientious objector

“shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned”.

This provision places a positive obligation on the conscientious objector, but it does so in terms that are vague and uncertain. The phrase “as soon as may be” lacks legal certainty: typically, legislative provisions imposing time constraints most effectively do so when a precise time limit set out in days, weeks, months, etc., is provided. In Ireland, the Interpretation Act 2005 provides legal certainty on such time limits regarding, for example, the correct construction of start and end days for the purposes of a time limit. Clearly, it is not possible to provide for every eventuality in this overarching legislative scheme, but the use of the phrase “as soon as may be” is to be contrasted with other non-specific terms used elsewhere in legislation for example “as soon as reasonably practicable”, a term which has been the subject of extensive judicial scrutiny and on which there is a well-established body of case law offering guidance to decision-makers. This latter term would arguably have provided greater legal certainty than the wording currently contained in section 22(3).

A further interpretive difficulty that arises in relation to this section is the obligation of the conscientious objector to “make such arrangements for the transfer of care of the pregnant woman as may be necessary to enable the woman to avail of the termination of pregnancy concerned”. There are two important aspects to this duty. First, the objector must make arrangements for the “transfer of care”, and a crucial question arises in respect of precisely what this means. Arguably, the obligation is quite stringent, potentially requiring the objector to refer the woman to a specific healthcare provider or healthcare institution. The concept of “transfer of care” could also be interpreted to encompass a referral in the ordinary healthcare sense, which would typically extend to passing on relevant information to the other party in respect of the patient and the treatment sought. Second, the section requires that the arrangements made by the objector will actually enable the woman to avail of the termination of pregnancy as stipulated for in this section.

Aside from the ambiguity as to the meaning of these terms, important practical questions arise in respect of their operation. What, for example, of a situation where, within a given healthcare setting, there is no healthcare professional who is available and/or willing to carry out or to participate in carrying out a termination? In such a scenario, will the conscientious objector be deemed to be under an obligation to make positive arrangements going beyond the healthcare facility in which they are located? A key consideration here is how this section can operate in circumstances where the medical practitioner’s workplace has not established any system or mechanism for the making of the arrangements for transfer as envisaged by section 22(3). Could the objector’s obligation extend to the objector’s proactively putting in place or implementing a mechanism through which a medical practitioner could make such arrangements with an external organisation or service?

For this section to meaningfully operate in practice, there is a supposition underpinning it that there will be a sufficiently robust system in place to enable the conscientious objector to avail of the protections under section 22(1) whilst at the same time enabling that person to rely on a structure that will give efficacy to the discharge of their obligations under section 22(3).

It is apparent from the foregoing analysis that there are many unanswered questions arising from the interpretation of section 22. The Act does not provide us with answers to those questions yet. It will ultimately be for the Superior Courts to consider the correct interpretation of both the conscientious objection wording and the nature and extent of the obligations of conscientious objectors.

We have seen that the Act takes both an extremely broad and, ironically, an extremely narrow view of conscientious objection: it is extremely broad in that it does not define the term at all and it does not impose any threshold requirement for meeting any criteria before conscientious objection can be asserted. Conversely, it is extremely narrow in limiting the protection to medical practitioners, nurses or midwives. This is a particularly problematic element of this legislation in that those who do not occupy such roles but who wish to assert a conscientious objection have pre-existing, separate legal bases for doing so outside of the ambit of the Act. For example, there exist protections under constitutional, contractual and common law that may be invoked by employees, as well as the long-established protections under EU law and the European Convention on Human Rights pertaining to conscientious objection. It is, accordingly, necessary to consider now how the introduction of the above provision five years ago is going to interact with existing protections for conscientious objection in Irish law. The purpose of engaging in this mapping exercise is to try to identify some of the likely ways in which the above provision will fall to be interpreted, and how conscientious objection more generally may be understood and developed in the future.

4. Nomenclature, Definitions and Sources within the Framework of Employment Law in Ireland in the Context of Conscientious Objection

In this section, we identify the wide range of sources other than the 2018 Act giving protection to the employment relationship in Ireland, as (m)any or all of these may ultimately be the basis on which conscientious objection claims are based. As well as it not being defined in the 2018 Act, there is surprisingly little judicial consideration of the term more generally.

In the employment context, conscientious objection has been frequently identified as being justified due to, as Mary Neal describes it, “the need to protect individuals from being obliged to violate their moral integrity in the course of performing their professional roles” (Neal 2019). Relevant legal concepts include causation, self-determination and agency, causality, and the question of whether conscience is a “burden”.

4.1. The Contract of Employment

The contract of employment is generally accepted as being at the very centre of the employment relationship (see for example Rt. Hon. Lord Justice Underhill, 2016, writing the Foreword to Freedland et al. 2016) and its fundamental legal source. The contract of employment has increasingly been recognised as psychological and relational in nature (Brodie 2011; Collins 2021), and this characterisation of the contract may well have implications for how conscientious objection comes to be considered in the contractual setting.

The contract will, of course, contain both express and implied terms. Express terms, in general, are most unlikely to touch upon conscientious objection, save where there is an attempt to clarify that services must be performed by a post-holder. That specific scenario is currently lacking in legal certainty in Ireland and is an area on which the authors intend to focus in later work; this is beyond the scope of the present article.

In general, of potentially more significance than express terms, are implied terms, in which the common law has seen very significant expansion and development in recent years, most notably with the introduction of an implied mutual duty of trust and confidence. This has been characterised as a duty on both the employee and the employer “not to act in a manner calculated to destroy trust and confidence” (Malik v BCCI [1998] AC 20). The implied term has been unambiguously recognised in Irish law (see for example, the judgment of the High Court in Cronin v Eircom Ltd. [2007] 3 IR 104 and the judgment of the Supreme Court in Berber v Dunnes Stores Limited [2009] IESC 10, [2009] ELR 61). It applies to all contracts of employment, which is a significant point to note in this context given the limited classifications of persons on whom statutory conscientious objection rights are conferred under section 22 of the 2018 Act.

The emergence of an overarching principle from the implied obligation of mutual trust and confidence is increasingly the subject of keen debate, which may be of special relevance in the conscientious objection context. The implied obligation of mutual trust and confidence has been expressed as a duty upon the employer not, without reasonable and proper cause, to act in such a way as would be calculated or likely to destroy or seriously damage the relationship of trust and confidence existing between the employer and its employees.4 The implied term has been increasingly invoked in litigation during the last three decades. In the older case law, the requirement of mutual trust and confidence stemmed from a “master and servant” notion of the employment contract, where the relationship was viewed as a personal one. The courts examined whether, as a matter of fact, there was trust and confidence between the parties. In contrast, the modern approach is prescriptive: as a matter of law, the mutual duty of trust and confidence obliges the parties to the contract to behave towards one another in a way that respects trust and confidence and enables it and the employment relationship to flourish. The employer’s prescriptive duty not to do anything likely to destroy the relationship of confidence translates, among other things, into a duty to provide fair procedures in disciplinary matters, which is a prescriptive duty already endorsed in this jurisdiction by the Constitution (Ryan 2017).

The implied mutual duty of trust and confidence is a dynamic element of the law relating to employment contracts and is therefore an important aspect of the common law framework through which conscientious objection claims may be invoked. Consider, for example, the scenario where an employee who has been in employment with the same employer for many years has made known to their employer that they hold strong religious beliefs that are opposed to the termination of pregnancy. Such an employee may contend that their employer is, as a consequence, obliged to maintain trust and confidence by operating the contract of employment having regard to this knowledge, and specifically to try to ensure that the employee is not obliged to act contrary to their conscience. Against this, of course, the employer may argue that an employment relationship is an inherently evolving relationship and that the implied mutual duty of trust and confidence itself requires the employee to adapt and respond to changing circumstances (such as the introduction of the 2018 Act providing access to termination services).

Because of its open-textured basis in contract law, the implied mutual duty of trust and confidence is an evolving source of employment rights. In the specific context of conscientious objection, a potential source of uncertainty in the law arises from the operation of the implied mutual duty of trust and confidence in the context of the contract of employment, on the one hand, and the 2018 Act, on the other, and this is likely to be a significant area of legal analysis in the coming years.

4.2. Constitutional Law Implications in the Context of the Contract of Employment

Under Irish constitutional law, an individual’s employment status enjoys robust protection due to, inter alia, the court’s emphasis on the dignity of the individual in employment (NHV v Minister for Justice and Equality [2017] IESC 35, [2018] 1 IR 246).

A leading decision considering the interaction between the Constitution and individual employment rights is the decision of the Supreme Court in Meskell v CIE [1973] IR 121. Walsh J (at 135) analysed the effect of a constitutional right (in this case the right to form an association) compared with the ordinary common law rights of an employer to engage or dismiss its workers when in so doing it was not in breach of contract. Walsh J was categorical in stating that if an employer threatens an employee with dismissal should he join a trade union, the employer is putting pressure on the employee to abandon the exercise of a constitutional right and is interfering with the employee’s constitutional rights:

“If the employer dismisses the worker because of the latter’s insistence upon exercising his constitutional right, the fact that the form or notice of dismissal is good at common law does not in any way lessen the infringement of the right involved or mitigate the damage which the worker may suffer by reason of his insistence upon exercising his constitutional right”.

The court was unequivocal that

“To exercise what may be loosely called a common law right of dismissal as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two”.

In the context of conscientious objection, the implications of the above reasoning are potentially significant since Article 44.2.1 of the Constitution provides that “freedom of conscience and the free profession and practice of religion are subject to public order and morality, guaranteed to every citizen.” It is, therefore, necessary to assess the jurisprudence on conscientious objection in the context of the Constitution of Ireland.

4.3. Specific Constitutional Support for Conscientious Objection

The Irish Constitution provides express protection for the right to freedom of conscience. Article 44.2.1 of the Constitution provides

“freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen”.

The right is situated within Article 44, which is titled “Religion”. The right to freedom of conscience has received little judicial attention, possibly due at least in part to the fact that termination of pregnancy was effectively illegal until 2019. The plaintiff in the landmark case of McGee v Attorney General [1974] IR 284 sought to rely on her right to freedom of conscience to protect her decision to use contraception. However, the Courts refused to accept the applicability of freedom of conscience outside the context of religious beliefs.

It is important to note that the Irish courts have not addressed the question of whether the right to freedom of conscience necessarily incorporates a right to conscientious objection. There is relatively recent judicial support for a right to conscientious objection under the Irish Constitution, though this distinction between conscientious objection and freedom of conscience was not directly addressed. In AM v Refugee Appeals Tribunal [2014] IEHC 388, which concerned the refusal to grant asylum to Israeli citizens who objected to military conscription, McDermott J said (at 32–34)5

“Article 44.2.1 of the Constitution provides that ‘freedom of conscience and the free profession and practice of religion are subject to public order and morality, guaranteed to every citizen’. Though the provision appears under the heading ‘Religion’ and though the limited case law considering the provision has for the most part dealt with freedom of conscience in the religious context, it is difficult to contemplate a ‘freedom of conscience’ excluding conscientious objection, which is in itself an obvious exercise of conscience rooted in religious or other moral or philosophical convictions.

Freedom of individual conscience underpins many of the democratic values and fundamental rights of the Constitution… Though it is not recognised as a separate fundamental right under the Constitution, it is clearly part of the constitutional fabric and, as such, is, I am satisfied, an unenumerated right guaranteed by Article 40.3 of the Constitution. Its recognition in this case is entirely in accordance with assuring the ‘dignity and freedom of the individual’ as outlined in the Preamble and the democratic nature of the state as defined by Article 5. The right to freedom of conscience is guaranteed by the state which must defend and vindicate it as far as practicable and protect it from unjust attack…

…The exercise of a right to freedom of conscience is not absolute and may be regulated in accordance with law. Thus, environmentalists who block a road or commit other offences while trying to protect a habitat, peace or human rights protestors who commit criminal damage or seek to gain entry to prohibited areas may face prosecution and/or imprisonment or a fine, as will a person who fails to pay taxes because in conscience they do not wish them to be applied towards a military budget”.

The High Court also based its judgment on Article 9 of the European Convention on Human Rights (hereafter: “ECHR”) and Article 10(2) of the Charter of Fundamental Rights of the European Union (hereafter: “the Charter”).6

There is a dearth of authority in the case law concerning conscientious objection rights. The few decisions that have dealt with freedom of conscience specifically in the employment context may be of some guidance for future courts. These have not, however, dealt with conscientious objection and rather occurred in a very different context. They have, by and large, been used to break “closed-shop” arrangements or otherwise restrain efforts by trade unions to compel workers to join: for example, Educational Company of Ireland v Fitzpatrick (No 2) [1961] IR 345; Meskell v Córas Iompair Éireann [1973] IR 121 referred to above; Becton, Dickinson and Co Ltd. v Lee [1973] IR 1; Crowley v Cleary [1968] IR 261; and Murtagh Properties v Cleary [1972] IR 330. Although some cases in this area are more strictly based on the “right to disassociate” (being a corollary of the freedom of association protected by Article 40.6.1.iii), some do derive that right from freedom of conscience generally. In this, Irish jurisprudence is broadly in line with the European Court of Human Rights cases on trade union membership.

4.4. Employment Equality Acts 1998–2015

A further highly relevant component of the legal framework in Ireland is equality legislation. The Employment Equality Act 1998, which has been amended several times, most notably by the Equality Act 2004, in section 6(1) states that discrimination

“shall be taken to occur where

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as “discriminatory grounds”) which-

(i) 

exists,

(ii) 

existed but no longer exists;

(iii) 

may exist in the future, or

(iv) 

is imputed to the person concerned”

Section 6(2), in turn, sets out the nine grounds on which it is unlawful to discriminate between individuals in an employment context and includes the following:

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”)

The Employment Equality Acts prohibit discriminatory treatment on any of the above nine grounds. This prohibition covers not only existing employment relationships but also the termination of employment and even the treatment of a prospective employee. Clearly, there is considerable scope for these Acts to contribute to the development of a body of case law concerning conscientious objection raising, for example, considerations of indirect discrimination on the grounds of religion.

4.5. Unfair Dismissals Act 1977 as Amended

The parameters of unfair dismissal legislation are likely to be tested in the context of conscientious objection claims. Under the Unfair Dismissals Act 1977 as amended, a dismissing employer must prove not only the existence of substantial grounds justifying the dismissal but must also satisfy the Workplace Relations Commission (hereafter: “the WRC”) that it has acted fairly and reasonably in all circumstances. In general, all dismissals are presumed to be unfair until the employer rebuts that presumption of unfairness.

As well as demonstrating substantive fairness, the employer must satisfy the WRC that fair procedures were observed. It is likely that conscientious objection claims will involve allegations of unfair dismissal, which can include “constructive” dismissal scenarios in which an employee alleges that they were entitled to resign or that it was reasonable for them to resign due to the actions of the employer in creating or maintaining intolerable working conditions. Accordingly, this is another area in which the contours of conscientious objection will need to be tested.

5. EU Law

There is a right to conscientious objection enshrined in the Charter of Fundamental Rights of the EU. Article 10(2) reads: “The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right”.

It should be observed this is located within the Article 10 right to “freedom of thought, conscience and religion”; as such, it apparently attaches to objections on the basis of any belief within the scope of Article 10 Charter rather than exclusively religious belief.

There is very little case law from the Court of Justice of the EU (hereafter: “the CJEU”) on conscientious objection. The only relevant case appears to be C-472/13 Shepherd, which involved a US Army engineer, stationed in Germany, who refused to accompany his unit on its deployment to Iraq on the basis of his belief that the unit would be involved in committing war crimes. He deserted and sought asylum in Germany, where his case fell to be determined under the Qualification Directive, which is part of the EU’s common asylum policy. Despite this different context, there are several passages of the Advocate-General’s opinion that are instructive for present purposes. For its part, the decision of the Court itself turned on whether the applicant had gone through the objection procedures available to members of the US Army.7 The AG, on the other hand, engaged in a fairly wide-ranging discussion of conscientious objection.

The first issue in the case was whether the applicant could raise a conscientious objection to his work repairing aircraft, or whether this activity was too remote from the actual acts that were alleged to amount to war crimes. AG Sharpston addressed this in her opinion (at 32 and 44):

“It seems to me that [the provision of the Qualification Directive granting asylum to military service-members objecting to war crimes] covers all military personnel including logistical and support staff such as a helicopter maintenance mechanic… Whether such persons would commit war crimes if they performed their military duties is a matter of fact to be assessed by the competent national authorities”.

As will be seen below in the discussion of conscientious objection by medical practitioners to the termination of pregnancy in the decisions of the European Committee of Social Rights and the UK courts, how closely connected the worker is to the activity objected to is a particularly thorny issue in such cases. As a matter of EU law, this will be a question for the national court, with little guidance available from the CJEU.

AG Sharpston also noted, in paras 54–55, that the more nuance there is to one’s objection—in this case, the applicant was happy to serve in the US Army generally, but specifically objected to his deployment to Iraq, where he believed war crimes were being committed—the harder it is to consider it “conscientious” for the purposes of EU law:

“I can see that those who have an absolute objection to military action might fairly readily be deemed to ‘share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’ … Because their position is so clear-cut, it is readily believable.

Those who have a more nuanced objection to the use of force are in a more difficult position … Because there is no absolute objection to the use of force, but only a partial objection, such individuals may find it correspondingly more difficult to establish that their individual position is credible; that their individual objection is one of conscience and principle rather than of convenience”.

Of course, this posed particular difficulty in the Shepherd case because the Qualification Directive 2004/83/EC, which has since been repealed and replaced by Directive 2011/95/EU, required certain conditions of a conscientious objector that were not present in Article 10(2) Charter itself. In any event, it will be a matter of fact for the national court to determine. It remains to be seen how absolute an employee’s objection would have to be in order to avail of the Charter protection in general.

More broadly, the right to conscientious objection may be conceptualised as an expression of protection from discrimination on the grounds of religion or belief. Notably, in the UK context, an employee’s refusal to carry out a certain task to which the person holds a conscientious objection is usually treated as a case of indirect discrimination (Vickers 2019) under the Equality Act 2010, with the exception of termination of pregnancy.8 Indirect discrimination is typically defined to occur where an apparently neutral provision, criterion or practice would have the effect of putting persons having a particular trait, such as religion or belief, at a particular disadvantage compared with other persons. As opposed to direct discrimination, which requires a more stringent test, indirect discrimination may generally be justified in certain instances.

In Ireland, the prohibition of discrimination in employment is enshrined in the aforementioned Employment Equality Acts 1998–2015. Unlike the UK legislation, however, the Irish statutory protection from discrimination has to be interpreted in conjunction with the EU anti-discrimination law.

On this note, the principle of non-discrimination, including on the grounds of religion or belief, is of utmost importance to EU Law and has been recognised by the CJEU as a general principle of EU Law that does not have to be included in any specific legislation in order to create rights for individuals.9 On the legislative level in the EU, the prohibition of discrimination is protected by Article 19 of the Treaty on the Functioning of the European Union (hereafter: “TFEU”), which states that a special legislative procedure may be used to combat discrimination on six grounds: sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The relevant ground of religion or belief is specifically covered by the Framework Directive 2000/78/EC.

The exercise of the right to conscientious objection in employment, i.e., under the Framework Directive, has not yet been explored before the CJEU; however, discrimination on the grounds of religion has featured in a series of cases concerning the wearing of headscarves in the workplace (Vickers 2017; Witte and Pin 2020). In these judgments, the CJEU rejected the claim that workplace “neutrality” policies amounted to direct discrimination on the grounds of religion but did not exclude the possibility of indirect discrimination, which appears to be consistent with the UK practice regarding conscientious objection claims, as described by Vickers.

A potential hurdle for applicants seeking to rely on indirect discrimination in cases concerning the exercise of the right to conscientious objection lies in the permissible exceptions from the general prohibition of indirect discrimination on the grounds of religion or belief. The Framework Directive provides in Article 2(1) that indirect discrimination may be justified by the employer by a legitimate aim provided that the means of achieving that aim are appropriate and necessary. Thus, a proportionality test is performed by courts to balance conflicting rights and interests. Carrying out a proportionality test is not, however, easy and requires careful consideration of all the factual circumstances of a given case.

Furthermore, the indirect discrimination model has other limitations. One of them may arise in relation to solitary conscience clauses, where the perceived difference in treatment is experienced by a single individual whose concerns are not shared by others in the same workplace. In this vein, McCrea argues that EU Law focuses on framing indirect discrimination as a group disadvantage that may result in insufficient protection of solitary conscience clauses (McCrea 2016). A good example of such an outcome in practice may be found in the CJEU headscarf saga, where the religious concerns experienced by employees of the Muslim faith were not shared by colleagues of other denominations that do not require special religious wear.

Given these limitations of the indirect discrimination model, some scholars and policymakers, notably from the Council of Europe (Vickers 2019), have postulated replacing it in cases dealing with religious freedoms, with the reasonable accommodation model. While better known in the common law tradition countries than civil law countries, the duty of reasonable accommodation is also part of the EU anti-discrimination law and has been enshrined in Article 5 of the Framework Directive, however only in relation to disability grounds. The duty of reasonable accommodation currently obliges employers to accommodate reasonable requests from employees with a disability to modify their working conditions. For several years, some authors have been calling for the extension of the duty of reasonable accommodation beyond disability grounds to also cover other protected grounds of discrimination (Gibson 2013; Waddington 2011). Conversely, other scholars, notably Vickers, argued that this is unnecessary as replacing indirect discrimination with reasonable accommodation would not alter the outcomes for the applicants in discrimination claims (Vickers 2019). On this note, Howard contends that the justification test for proving indirect discrimination already includes a form of duty of reasonable accommodation (Howard 2013).

The prohibition of indirect discrimination as laid down by the EU Framework Directive has been transposed into the Irish legal system by way of section 31(1) of the Irish Employment Equality Act, which shows that exceptions from the prohibition of indirect discrimination are permissible insofar as they can be justified as “reasonable in all the circumstances of the case”. The wording of this provision, and particularly recourse to reasonability, echoes the duty of reasonable accommodation, which would support Howard’s thesis that reasonable accommodation is indeed inherent in the indirect discrimination model.

6. The Council of Europe

The bulk of cases at the European Court of Human Rights (hereafter: “the ECtHR”) on conscientious objection have concerned military conscription. It is clear from Thlimmenos v Greece App no. 34369/97, Bayatan v Armenia App no. 23459/03, Adyan v Armenia App no. 75604/11 and Papavasilakis v Greece App no. 66899/14 that Article 9 ECHR protects conscientious objection on religious grounds, but that states have a margin of appreciation to require objectors to carry out civil national service in place of military service.

Outside the military context, conscientious objection claims before the ECtHR have also concerned same-sex partnerships, vaccinations and terminations of pregnancy (Witte and Pin 2020). Of particular relevance to this paper is Eweida and others v UK App no. 51671/10. One of the applicants in this case, namely, Ms. Ladele, was a registrar of births, deaths and marriages in London who complained to the Strasbourg court under Article 9 ECHR in conjunction with Article 14 (prohibition of discrimination). The ECtHR held that there was no breach of the Convention, as the UK had not exceeded its margin of appreciation. It is, however, worth noting that from the circumstances of the case, it was clear that Ms. Ladele’s employer had made attempts to accommodate her conscientious objection, notably by exempting her from officiating same-sex ceremonies.

With regard to the termination of pregnancy, the ECtHR examined applications from two Swedish midwives, in Grimmark v Sweden App no. 43726/17 and Steen v Sweden App no. 62309/17, who had a conscientious objection to participating in the termination of pregnancy. Having disclosed this to potential employers, on several occasions they had employment offers withdrawn. Both applications were deemed inadmissible by the ECtHR. Notably, the Strasbourg Court observed that while the right to conscientious objection did fall within the scope of Article 9 ECHR as an external manifestation of the freedom of religion, the requirement that all midwives should be able to perform all duties inherent to their job was not unjustified or disproportionate. Therefore, Sweden had not exceeded its margin of appreciation.

There are also some recent cases where the Strasbourg Court specifically dealt with instances of workers objecting to certain requirements of their employment. Like the Irish courts, the ECtHR has invoked the workers’ freedom of conscience to hold states in breach of the Convention for allowing closed shops: for example, Sorensen and Rassmussen v Denmark App no. 52562/99. This was a particular case in which trade unions engaged in political activity that workers who would be obliged to join did not agree, and thus, Article 10 could also be invoked to establish a conscientious objection, as well as an implied right to disassociate under Article 11.

Separately, the impact of conscientious objection on the access to termination of pregnancy services in Italy was subject to a complaint from the International Planned Parenthood Federation—European Network (hereafter: “the IPPF”) to the European Committee of Social Rights (hereafter: “the ECSR”). The ECSR is a body that oversees the implementation of the Council of Europe’s European Social Charter (ETS No. 163). In IPPF EN v Italy (Complaint No. 87/2012), the IPPF argued that Article 9 of the Italian Law No. 194 of 1978, which governs conscientious objection of medical practitioners in relation to termination of pregnancy, was in violation of Article 11 (the right to health) in conjunction with the non-discrimination clause in Article E of the European Social Charter. The ECSR agreed with the applicant, stating in para 174 of its decision on the merits delivered in 2013 that “women seeking access to abortion services can face substantial difficulties in obtaining access to such services in practice, notwithstanding the provisions of the relevant legislation”.

This decision was followed up by another complaint to the ECSR, this time from the Italian Confederation of Labour—CGIL (No. 91/2013 Confederazione Generale Italiana del Lavoro (CGIL) v. Italy). While the CGIL agreed that Article 9 of the Italian legislation on the exercise of the right to conscientious objection did not guarantee access to termination, it also alleged violations of several other provisions of the European Social Charter in respect of the employment rights of those Italian medics who do not have a conscientious objection to the termination of pregnancy. The ECSR concurred and noted (at 243) that

“CGIL has provided a wide range of evidence demonstrating that non-objecting medical practitioners face several types of cumulative disadvantages at work both direct and indirect, in terms of workload, distribution of tasks, career development opportunities etc.”.

Italy was thus held to be in breach of Article 1 (the right to work), Article 2 (the right to just conditions of work), Article 3 (the right to safe and healthy working conditions) and Article 26 (the right to dignity at work) of the European Social Charter. In its decision delivered in 2015, the ECRS agreed to hold Italy in breach of the above provisions (Bo et al. 2017).

7. Conclusions

In this paper, we sought to identify the many different components of the legal framework concerning conscientious objection rights in Irish law. The complex interaction between statutory law, the Constitution, the common law, and European and international human rights law reveals the complexity of that framework.

In the background, moreover, is the changing nature of religious affiliation and practice in Ireland, as well as the evolution in the relationship between religion (especially Roman Catholicism) and the Irish State. These changes have not only impacted how the ethics of abortion has been treated in Irish law but also how conscientious objection has been handled.

With the introduction of the 2018 Act providing for termination services in Ireland, it seems highly likely that the various elements of this employment law framework will needto be tested in the near future. Our analysis reveals the breadth and complexity of that framework and the range of questions arising in this context.