Former Stormont health minister Edwin Poots' ban on gay men giving blood in Northern Ireland was infected by apparent bias, a High Court judge ruled yesterday. Mr Justice Treacy also held there had been a "very troubling lack of candour" and attempt by the Democratic Unionist MLA to conceal the fact he had taken a decision to maintain the lifetime prohibition.
He also backed claims by lawyers for a homosexual man that Assembly comments showed Mr Poots stance was influenced by his Christian beliefs.
The verdict strengthens a previous finding in October 2013 that the ban is irrational. At that time the judge had reached no conclusion on allegations that the decision was prejudiced by religious views.
Before leaving office Mr Poots launched an appeal against the irrationality finding against him. British health secretary Jeremy Hunt is also contesting the ruling. With the appeal hearing due to get under way later this month, Mr Justice Treacy was asked to make a further determination on the claims of apparent bias.
The gay blood ban, put in place during the 1980s AIDS threat, was lifted in England, Scotland and Wales in November 2011. It was replaced by new rules which allow blood from men whose last sexual contact with another man was more than a year ago. Mr Poots however maintained the prohibition in Northern Ireland on the basis of ensuring public safety.
In his earlier verdict Mr Justice Treacy found the decision was irrational and declared Mr Poots in breach of the ministerial code by failing to take the issue before the Stormont Executive.
Counsel for the former minister has consistently rejected claims that his position may have been influenced by religious views, but lawyers for the gay man who brought the challenge, identified only as JR65, introduced remarks Mr Poots made in the Assembly while allegedly talking about the case to support their claims of suspected bias.
The DUP MLA was recorded as saying: “There is a continual battering of Christian principles, and I have to say this – shame on the courts, for going down the route of constantly attacking Christian principles, Christian ethics and Christian morals, on which this society was based and which have given us a very good foundation.”
Mr Justice Treacy questioned why he would be making such comments if his decision was based only on health grounds.
“If health was, as the minister claimed, the sole basis underpinning the impugned decision, no question of any assault on Christian principles or morals could conceivably arise,” he said. “Such a criticism could only make any sense if the minister regarded his challenged decision as a manifestation of expression of his religious beliefs.”
The judge also cited Mr Poots previous opposition to gay rights legislation and a news article from 2001 where he spoke of the rights of those receiving donations to know they are getting “clean blood” uncontaminated by the HIV virus.
Setting out further reasons for his finding, Mr Justice Treacy pointed out how the minister took his decision against the advice of senior officials and without consulting the Assembly health committee or other interested parties. Mr Poots’s initial denial that he had taken a decision on the issue was rejected.
The judge said: “The Minister’s very troubling lack of candour and his attempt to conceal the fact that he had made a decision are plainly circumstances that are material to whether a fair-minded and informed observer would conclude that there was a real possibility of bias.”