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Important ruling on ban on gay men giving blood in Northern Ireland to be appealed


The judgment of Mr Justice Treacy declaring inter alia that the NI Minister for Health had no jurisdiction to act by way of retaining in Northern Ireland the lifetime deferral on blood donors who have had male-to-male sexual relations is to be appealed by both the NI Minister and the UK Secretary of State for Health. Mr Justice Treacy held that the UK Secretary of State for Health, being the competent authority for the purposes of the relevant EU Directive and the Blood Safety Quality Regulations 2005, is responsible for the determination of the appropriate deferral periods in NI and whether or not to maintain the lifetime ban.  Accordingly, the judge found that the Minister was not empowered to give any directions in relation to the implementation or interpretation of the Directive.  He also held that the Minister had no power to act incompatibly with EU law in accordance with the Northern Ireland Act 1998.

Further, the judgment considered whether the Minister had breached the Ministerial Code in that this was a decision which required Executive approval (paragraph 2.4 of the Ministerial Code provides that any matter which cuts across the responsibilities of two or more Ministers or is significant or controversial must be brought to the attention of the Executive Committee).   He said that the lifetime ban is both controversial, in that it has generated much publicity and public debate with highly polarised views, and cross-cutting in that it touches on equality issues, and as such the Minister had no authority to act without bringing the matter to the attention of the Executive Committee.  The judge said that, in doing so, the Minister breached the Ministerial Code and had no legal authority to take this decision.

The judge also held that the policy was irrational, but not discriminatory.

The judgment is here.

The article in The Irish Times is here.

Margaret Gray appeared as junior counsel with the Attorney General for Northern Ireland on behalf of the Minister for and Department of Health, Social Services and Public Safety.