Edwin Poots fights to keep legal advice over ban on gay blood donors under wraps
Health Minister Edwin Poots and the Attorney General John Larkin are both fighting to keep secret legal advice on a controversial decision to apply a lifetime ban on gay men donating blood in Northern Ireland.
The case will be heard later this month at a First Tier Information Rights Tribunal in Belfast with a High Court Judge presiding over the proceedings.
Mr Poots and the Attorney General are trying to overturn an Information Commission Office (ICO) decision that legal advice behind the ban should be disclosed.
In his submission to the court Mr Poots argues that the Information Commissioner "has given too much weight to the promotion of openness, transparency and accountability in the decision making process''. Ironically, the Executive is committed to increasing transparency.
The original Freedom of Information (FOI) request was brought by Matthew McDermott, who is policy manager of the Rainbow Project, a gay advocacy group.
Last night, Mr McDermott said: "'Once again we have an instance where the health minister is pursuing a frivolous case to oppose a ruling around an issue involving equality. The Information Commissioner agreed with The Rainbow Project that it is in the public interest for the Attorney General's advice to be released."
Mr McDermott is being funded by the Public Interest Litigation Service, a project set up by the charity Atlantic Philanthropies to ensure that important human rights cases are not dropped through lack of funds or because of government opposition.
Mr Poots and the Attorney General are funded by the taxpayer in resisting the application.
Mr McDermott said "given the ruling last week that Mr Poots was outside his competency in failing to take the blood ban policy to the Executive, it's important to understand what advice the minister was given".
In the court case, an unnamed man successfully challenged Mr Poots' decision to retain a lifetime ban on gay men giving blood.
This ban was introduced across the UK in 1985 to guard against the spread of HIV/AIDS and hepatitis. It was overturned in England, Scotland and Wales in 2011 following a scientific review by SaBTO, the Advisory Committee on the Safety of Blood, Tissues and Organs. SaBTO found that improved blood testing had made it obsolete.
Justice Treacy dubbed Mr Poots' decision "irrational" because blood was still imported from England where the ban no longer applies and also because "the minister had rejected the persuasiveness of the SaBTO evidence".
He found that the decision could have been taken by Jeremy Hunt, the health minister in London and, if it was to be considered locally it should have been referred to the full Executive. In consequence, Mr Poots was found to have broken his pledge of office.
The Information Commissioner's decision, which is now being fought at tribunal by Mr Poots and the Attorney General, pointed out that when Mr Poots extended the lifetime ban he was also warning of blood shortages and appealing for more donors.
In his submission to the tribunal, the Attorney General argued that his consent was needed for the advice to be disclosed. His submission says this applies in England and Wales and that "this constitutional Convention is reflected in a decision of the Executive dated July 2010 that the Attorney's permission should be obtained before his advice is released outside the individual department or the Executive."
A statement to the Belfast Telegraph from his office makes a different point. A spokesman states "it is appropriate for the First Tier Tribunal to hear about the exemptions that apply in this case. The power to decide what information is released is not one that resides with the law officers of the devolved institutions."
Meanwhile, the health minister admitted he may have "unwittingly" broken the ministerial code over upholding the lifetime ban on gay men donating blood.
"In terms of breaking the ministerial code, certainly if I did it I did it unwittingly," he said.
But Mr Poots said the decision was based on sexual behaviour not sexual orientation. He listed the US, France, Sweden and Denmark as countries that maintain a lifetime ban for gay men.