Health Minister Edwin Poots has been ordered to release advice from the Attorney General he used to justify a lifetime ban on gay men giving blood – a rare move not taken since the Iraq war.
The Information Commissioner has given the minister until April 29 to release the legal advice he took before deciding not to bring Northern Ireland into line with the rest of the UK where gay men are allowed to donate after a year of abstinence.
In a groundbreaking move, the Commissioner's Office confirmed this is the first time it has ordered legal advice to be released in Northern Ireland.
The decision will re-ignite a fierce debate on the ban.
Mr Poots, a born-again Christian who disapproves of gay sex, says it was taken purely on health grounds to prevent the spread of sexually transmitted diseases.
Section 42 of the Freedom of Information Act specifies that "Legal Professional Privilege" (LPP) exempts legal advice from disclosure. In this case, though, the Information Commission says it is "a finely balanced judgment" but in this particular case "the public interest in disclosure of the withheld information outweighs that in maintaining the exemption".
Mr Poots can appeal the decision and ask for it to be reconsidered by a tribunal. Disclosure could be a problem for both him and Attorney General John Larkin because of an ongoing judicial review of the gay blood ban in Belfast High Court.
This alone makes an appeal likely. At a hearing in February, lawyers representing an unnamed gay man alleged Mr Poots' claims to have enforced the ban purely on health and safety grounds was "irrational and discriminatory".
In February, David Scoffield QC accused Mr Poots of making a "knee-jerk" decision. "We say that the maintenance of the ban represents unlawful discrimination against homosexual men, principally on the basis of their sexual orientation as compared to heterosexual men," he contended.
It will fall to Mr Larkin to counter these allegations, so disclosing his confidential legal advice to Mr Poots in a related matter could conceivably create difficulties.
The commission considered this, but decided that "having viewed the withheld information" it "does not accept that disclosure would undermine the current live legal proceedings in relation to the issue". It felt it more important to ensure "the public be better informed on the DHSSPS role in developing policy in relation to blood donation".
Matthew McDermott (left), policy manager at The Rainbow Project, said: "The Health Minister still maintains a ban on blood donation for gay men ... despite the fact that the most up-to-date scientific evidence satisfied the governments of England, Scotland and Wales who lifted the blanket lifetime ban."
The Department of Health said it is "considering an appeal and is unable to say anything further at this stage". If an appeal is unsuccessful the Information Commission's decision could be vetoed, but only by the First and Deputy First Ministers acting jointly.
Story so far
In November 2011, rules banning gay men from giving blood were relaxed in the rest of the UK if the donor has been abstinent for a year. But in Northern Ireland, a lifetime ban remains at the request of Health Minister Edwin Poots.
The DUP man took legal advice from John Larkin, the Attorney General, before taking the decision. He has refused to disclose this advice, saving it is legally privileged.