Ms Doogan and Mrs Wood, both practising Roman Catholics, were labour ward co-ordinators at the appellants' Southern General Hospital. When they began working in the labour ward they claimed conscientious objection under section 4 of the Abortion Act 1967 to participating in termination of pregnancy and took no part in the treatment of certain patients in the ward. From 2007, however, all terminations took place in the labour ward and their number increased in 2010 when the Queen Mother's Maternity Hospital was closed. In September 2009 the petitioners had initiated a formal grievance procedure, claiming that their duties had changed and that they were being required to supervise and support staff carrying out abortions; however, the Board rejected their complaint. On appeal to the Outer House the Lord Ordinary refused declarator that their right of conscientious objection included a right to refuse to supervise and/or support staff who were caring for patients undergoing termination of pregnancy. On reclaimer, however, an Extra Division of the Inner House concluded that they were, in fact, taking part in treatment for the purpose of terminating pregnancy in accordance with section 1(3) of the Act and were therefore entitled to the protection of section 4. The Health Board appealed.

Delivering the judgment of the court, Lady Hale took a narrow view of the issues before her. Though no arguments had been advanced in relation to the midwives' rights under Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion), she pointed out that the Article 9 right was a qualified right subject to such limitations as are prescribed by law and necessary in a democratic society. Moreover, though the petitioners' refusal, for religious reasons, to perform some of their duties was likely to be held to be a manifestation of their religious belief, difficult questions would remain as to whether or not their employers' restrictions on its exercise were a proportionate means of pursuing a legitimate aim; and the answers would be context-specific. In her view, the better course was to read section 4 in accordance with the ordinary principles of statutory construction: that would then set a limit on what an employer might lawfully require of employees. But a state employer also had to respect employees' Convention rights and refrain from direct or unjustified indirect discrimination against them on grounds of religion or belief. So, even if not protected by the conscience clause in section 4, the petitioners might still claim that, either under the Human Rights Act 1998 or under the Equality Act 2010, their employers should have made reasonable adjustments to the requirements of their jobs in order to cater for their religious beliefs; however, that would depend to some extent on issues of practicability better suited to resolution in the employment tribunal proceedings than to judicial review.

The course of treatment to which conscientious objection was permitted by section 4(1) was the whole course of medical treatment bringing about the termination. ‘Participate’ meant taking part in a hands-on capacity and Parliament was likely to have intended the word to have a narrow meaning rather than including the host of ancillary, administrative and managerial tasks which Ms Doogan and Ms Wood carried out and to which they had objected. The appeal was allowed. [Frank Cranmer and Maria Strauss]