Conscientious Objection (Medical Activities) Bill [HL]
Wednesday 28th June 2017
(7 years, 5 months ago)
Lords ChamberRead Full debate Conscientious Objection (Medical Activities) 2017-19 Read Hansard Text
Conscientious Objection (Medical Activities) Bill [HL]
Friday 26th January 2018
(6 years, 10 months ago)
Lords ChamberRead Full debate Conscientious Objection (Medical Activities) 2017-19 Read Hansard Text
Baroness O’Loan (CB)
My Lords, I beg to move that this Bill be now read a second time.
This Bill is designed to afford protection to those in healthcare who object on grounds of conscience to being asked to participate in end-of-life treatment. It is about a human right: the right to freedom of belief, religion and conscience. There have always been those who, when faced with a call to participate or engage in end-of-life treatment, object to so doing. Conscientious objection was first provided for in the United Kingdom in 1757.
If we think back, 100 years ago on this day, our country and the world were at war, but even at that most parlous time 16,000 men were excused from conscription to military service on grounds of conscience. Some, such as Quakers, did so because of their religious beliefs. Others, such as radical socialists, did so out of political principle.
During World War II, we accommodated 60,000 registered conscientious objectors. That was not easy for them—maybe some would say it was not easy for others who fought. It was not simple but it was possible to accommodate conscientious objection. The United Kingdom, therefore, has a long and proud record of recognition of rights of conscience and respect for conscience. It is a principle recognised in international law as well as in our domestic legislation. In 2011, the European Court of Human Rights interpreted the Article 9 right to “freedom … to manifest … belief” to include conscientious objection and overturned the conviction of an Armenian Jehovah’s Witness for his refusal to perform military service at a time when there was no other option available to him.
As respect for conscience applies to those who refuse to participate in the taking of life in war, so it has been applied to those who refuse to be involved in what they see as the taking of life through healthcare practice. In 1967, when the UK legislated to decriminalise abortion in certain circumstances, provision was made for conscientious objection because it was understood that what was being made legal was regarded by some as the taking of life. Were it not so, there would have been no need for protection of conscience. In 1990, when the Human Fertilisation and Embryology Act was passed, there was again limited provision for conscientious objection, and in every instance in which your Lordships’ House has discussed assisted dying there has been provision for conscientious objection. Where conscientious objection is permitted, it is not absolute. Medical practitioners must assist to save life or to prevent grave or permanent injury. It is a complex field. Some have statutory rights. Some, like GPs, have contractual rights not to engage, but it is a contractual right, not a statutory right, and some have no rights at all.
Why does it matter anyway? Professor Dan Brock, a leading bioethicist at Harvard, describes conscience as the basis of an individual’s moral integrity, saying that it defines who, at least morally speaking, the person is. Maintaining moral integrity, he asserts, requires that a person does not violate their moral commitments. That is why we allow conscientious objection in healthcare so that people can maintain their moral integrity, without which major health and other problems will almost inevitably emerge. Through conscience, each of us decides whether an action is right or not. As Dr Sara Fovargue and Dr Mary Neal state, conscience is fundamental to moral agency and a proper feature of all areas of human endeavour, including professional practice. The provision of medical services, of course, is never value-free. Healthcare practitioners make moral judgments all day, every day, and these are often very difficult judgments.
In 2010, when the Equality Act was passed, freedom of religion or belief was accorded protected characteristic status, like sex, age and disability. Protection from discrimination and exclusion, on grounds of religion or belief is provided for in Section 10 of that Act, which defines religion and belief as,
“any religious or philosophical belief and a reference to belief includes a … lack of belief”.
Conscience is not the preserve of the religious. Those who think that it is wrong to end human life do so for many reasons: scientific, philosophical, religious and other beliefs. The right to conscientious objection exists as a protection for medical professionals from the moral injury of being involved in actions that they believe destroy life. It exists, too, for the protection of patients who can believe that the professionals looking after them can act in accord with their conscience. Conscientious objection operates at the margin of medical treatment, where the duty to do no harm moves to accommodate positive action to end life.
It is not just domestic law that recognises the right of conscientious objection. The Council of Europe’s Parliamentary Assembly adopted Resolution 1763 affirming the right of conscientious objection for medical professionals. This resolution states:
“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion”.
It is non-binding but it reaffirms the normative understanding of freedom of conscience.
Society has changed, and the law has been interpreted differently in the United Kingdom. In 2014, the case of Greater Glasgow Health Board v Doogan and Another was heard by the Supreme Court. In this case, two senior midwives conscientiously objected to having to delegate tasks to, supervise or support those directly involved in abortion. They had been able to assert this right of conscientious objection for their whole nursing careers—which started very shortly after the Act was passed—until an amalgamation of hospitals led to their being required to do this work. Ultimately they could not, in conscience, have any role in the provision of abortion. Those skilled, compassionate, experienced midwives were unable to continue to serve as midwives, doing what they had done all their professional lives: helping women through the sometimes difficult process of carrying and bearing a child. I know that is difficult; anybody who has carried a child knows the sensitivities attached to it. Those good women were lost to the profession because the Supreme Court decided that indirect roles taken by nurses and midwives were excluded from protection under Section 4 of the Abortion Act.
It cannot be consistent with conscience to say, “I cannot do this, but I will order you to do it”. If one delegates, supervises or supports an activity, one is not unreasonable in concluding that one shares moral responsibility for what happens.
There is a lot of evidence that medical professionals are suffering serious disadvantage and discrimination for their beliefs. A 2016 ad hoc cross-party inquiry specifically into freedom of conscience in abortion provision received many accounts from medical professionals who had experienced discrimination in their work life due to their beliefs. I have heard so many stories of young doctors and nurses contemplating their future who have decided that although they would dearly love to be involved in obstetrics and gynaecology, and even though they are energised and feel vocationally called to the medicine of helping women through conception and childbirth, they nevertheless cannot do it because they could not, in conscience, kill an unborn child.
That is why I have introduced the Bill. Its provisions seek to affirm as a matter of statute that no one shall be under any duty to participate in activities they believe involve the taking of human life, either in the withdrawal of life-sustaining treatment or in any activity authorised by the 1967 or 1990 Acts. Such a reform would re-establish legal protection for medical conscientious objectors and reaffirm the Article 9 rights of healthcare workers. It would give reality to the protections afforded in the Equality Act.
There is a serious shortage of healthcare professionals; we are having to bring doctors and nurses from abroad. We spent £100 million bringing 3,000 GPs from other countries here this year, we are short of 3,500 midwives, and in 2016, according to the Royal College of Midwives, we spent nearly £100 million on agency nurses. There is a problem. Many young doctors, midwives and other healthcare professionals are leaving the UK. There are many reasons for this, but one of them is that those who labour at the coalface cannot engage in certain activities. We invest in their training; we need their skills—it is time to accommodate them.
I emphasise again that the Bill is not about reducing access to termination of pregnancy or to the withdrawal of life-sustaining treatment. It would simply mean that healthcare workers, of many different kinds, in registering their objection to the procedures defined under the Bill on appointment to a role, must be reasonably accommodated by those managing them so that they may work without involvement in those areas. Some 68% of abortions—126,000—are NHS-funded but provided by private companies. Some 2% are privately funded, and 30% take place in NHS hospitals, alongside all the other obstetrics and gynaecological procedures. Ninety-two per cent of abortions in 2016—some 170,000—were carried out at under 13 weeks’ gestation. Increasingly, these are medical abortions, involving the use of medication. That gives rise to the necessity to protect the rights of conscience of both GPs and pharmacists not to provide these services. That is what the Bill seeks to do.
The NHS could accommodate the number of conscientious objectors rather than forcing staff for economic or other reasons to engage in procedures which those staff simply, for reasons of conscience, cannot do. Reasonable accommodation of conscientious objection is a matter of liberty and equality—of individual freedom and social inclusion. That is why this is important and timely legislation.
I have heard that there is widespread support for the Bill. I know it has attracted support from all sides of this House and from the Commons. I hope that in moving it through Second Reading we will enhance the quality of the service provided to all our people and the environment in which healthcare professionals work. I beg to move.
Baroness Young of Old Scone (Lab)
My Lords, I fail to recognise the NHS and the healthcare system in this country that the noble Baroness has just described. I do not believe that there are shoals of professionals in this country who feel that their rights are insufficiently represented by current law. The existing provision for healthcare professionals to object on the grounds of conscience in certain well-defined circumstances is sensible and balanced, and the Bill is unnecessary and potentially dangerous.
I very much respect the concerns of healthcare professionals to decline to participate in a hands-on capacity in specific medical activities, for two reasons. First, they have that right to act in line with their beliefs. Secondly, however, in these often complex and vulnerable situations, where patients themselves have had to make difficult decisions about abortion, IVF or end-of-life care, those patients deserve to be treated by professionals who respect their treatment decisions. It is therefore important that healthcare professionals have a proper right to conscientiously object. That is allowed for in the current legislation and in the guidance issued by the General Medical Council, the Nursing and Midwifery Council, and in current employment law and the Human Rights Act.
But patients have important rights, too, and the Bill would threaten the very principle of respect for the wishes of the patient and their right to exercise choice. This must not happen. If I were being brutal, the Bill could be seen as a tactic to allow campaigning healthcare professionals to undermine legitimate—indeed, vital—patient choices. I will focus on three areas.
First, on employment law, the Bill has provisions for the employer not to “discriminate against or victimise” an employee for invoking conscientious objection, including on their terms of employment; their opportunities for promotion, transfer or training; dismissal; or by subjecting individuals to any other detriment. That looks unobjectionable—motherhood and apple pie—but it is unnecessary because existing employment and human rights law already defends the rights of employees in those circumstances. I believe we hear of only very few cases that come to law where individuals appear to have been discriminated against because there are only comparatively few cases.
The Bill’s changes to the provisions have the potential to undermine the “occupational requirement” exemption under the Equality Act 2010, which, for example, allows an oncology ward not to employ a palliative care nurse who, due to their beliefs, has a conscientious objection to caring for patients whose life-sustaining treatment is, by agreement with the patient and the family, being withdrawn. The provisions in the Bill to extend the right of objection by healthcare professionals to activities required to prepare for or support the activities that are the subject of the Bill would exacerbate this risk even more, in that we could see a situation where a range of healthcare professionals dotted across the healthcare system and the care pathway, in delegating, supervising and planning entire aspects of healthcare and exercising their conscience, could make it impossible for the patient to achieve their rights, and the employer would have no ability to prevent that.
My second point is that the Bill lays no obligation on the objecting professional to refer the patient to someone else for the care they need and are entitled to. Some patients who are less informed about their entitlements and more vulnerable patients could simply fail to secure a service that they should have received. This inequity is unacceptable.
The third issue I want to cover is scope. Extending the scope of conscientious objection puts us on a path towards allowing some healthcare professionals to opt out of providing even basic end-of-life care. It elevates a healthcare professional’s important personal beliefs above their duty to the patient, putting the needs and wishes of the patient last. It is the very opposite of patient-centred care.
We know that 68% of Britons want more control over decisions about their health, as the 2017 Ipsos Global Trends survey showed very clearly. We know that 82% of UK citizens do not want doctors to make decisions about end-of-life treatment on their behalf. The Royal College of Physicians, the National Institute for Health and Care Excellence and the Parliamentary and Health Service Ombudsman have recognised that more needs to be done to support dying people, particularly in exercising their right to make the decisions that are right for them. Therefore, I believe that the Bill is impracticable.
I entirely respect the concern of the noble Baroness, Lady O’Loan, about the ability of healthcare professionals to exercise conscientious objection, but I believe that the balance between the rights of the healthcare professional and the rights of the patient would be fatally skewed by the Bill. Just last week, the US Administration announced plans for a “conscience and religious freedom” division with the Department of Health and Human Services, together with new rules that would dramatically expand the ability of healthcare institutions and workers to refuse to provide medical care on the basis of conscientious objection. We are not Trump-land. Our current laws, rightly, put the needs of patients at the centre. That is what our healthcare system is for. I urge my fellow Peers to reject this Bill.
Lord McColl of Dulwich (Con)
My Lords, I am pleased to speak in support of the Bill. The issue that it raises is simple: if someone objects to abortion or assisted dying on grounds of conscience, how far should they be entitled to opt out? The issue is simple but the solution is difficult.
The Supreme Court held that, as a matter of construction, the conscience clause provisions of the Abortion Act 1967 should be interpreted narrowly so that Mary Doogan was not entitled to refuse to help facilitate abortions by organising other nurses for the purpose of providing abortions. The aim of this Bill is to change the wording so that freedom of conscience can be invoked as a ground for refusing to do acts which are less directly connected to the abortion than is presently the case. I think that that is a good thing and I shall endeavour to explain why.
The first reason is that a significant number of dedicated healthcare professionals have profound moral objections to both abortion and assisted suicide. The role of the state is not to sit in judgment on those moral objections: it is not the state’s role to coerce people into acting against their conscience. Therefore, it is a good and reasonable thing that the state should make the conscientious objection provision sufficiently broad to excuse acts which genuinely offend the conscience. The state should err on the side of respecting conscience, rather than placing valuable medical and nursing staff in a position where they have to choose between their vocation and their conscience.
I had a number of friends who, when applying for consultant posts in obstetrics, would be asked, “Are you prepared to take your share of the abortions?”. If they said yes, they were considered for the appointment. If, on the other hand, they said, “Yes, I’m prepared to take my share of the abortions within the 1967 Act”, they were not considered for the consultant post and many of them had to emigrate. They were very good clinicians and it was a great loss.
The second reason I support the Bill is that there is no evidence whatever that, if the Bill is passed, it will detrimentally affect anyone seeking an abortion.
The third reason I support it is that it is both unwise and unnecessary to force medics and nurses to act against their conscience in any sphere whatever. If we train them to do that in one sphere of work, we have only ourselves to blame if they do it in other aspects of their work. For those reasons, I support the Bill.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I am always sorry to disagree with my noble friend Lady O’Loan but I fear that I cannot support this Bill.
Of course, all of us will agree that proper account should be taken of a person’s conscientious objection to participation in medical treatments which, they believe, offend against the principle of the sanctity of life. But what amounts to participation? How wide should this statutory exemption go? The treatments or non-treatments here under consideration variously relate to the withdrawal of life-sustaining treatment, to fertility treatments and to treatments directed at the termination of pregnancies. It is on the last of these—abortion—that I want to focus principally, in particular on the 2014 unanimous decision of the Supreme Court in the case of Doogan.
In her article in last week’s House magazine, the noble Baroness said of Doogan that the Supreme Court,
“interpreted ‘participation’ in the Abortion Act’s conscience clause to only mean direct performance. All right for surgeons, but this meant that nurses and midwives who conscientiously object to material involvement enabling the procedure were stripped of formal statutory protections”.
A little later in the article, she suggested that her Bill would,
“re-establish legal protections for medical conscientious objectors, and re-affirm the Article 9 rights of healthcare workers”.
I profoundly disagree with that analysis of the Doogan case and I want to make three basic points.
First, there is simply no question of Doogan having in any way changed the law on the rights of conscientious objection in this context, and no question therefore of today’s Bill “re-establishing” or “re-affirming” anything. The Supreme Court was simply construing Section 4(1), the conscience clause, in the Abortion Act 1967 on the ordinary principles of construction, declining to give it either a particularly wide or a particularly narrow meaning. On this construction they held that the two practitioners—experienced midwives employed as labour ward co-ordinators—were exempted by the conscience clause from many of the tasks involved in that role, including any medical and nursing care connected with the purpose of undergoing labour and giving birth; but they are not exempted from the managerial and supervisory tasks carried out by ward co-ordinators, such as booking patients into the ward, allocating staff to patients and communicating with other professionals—for example, paging anaesthetists.
The full, careful and compelling judgment of the noble and learned Baroness, Lady Hale, considered how the conscience clause applies to each of an agreed list of 13 specified tasks, which are all set out in the judgment. The Library Note is good but it is not the same as reading the judgment. This Bill is designed to overturn that judgment—see the end of Clause 1(2). Parliament is entitled to change the law to widen considerably, as this would, the definition of and approach to participation—but change it would be, not a restoration of Parliament’s original decision.
The second point arising from Doogan concerns Article 9 of the Human Rights Convention, which also was dealt with by the Supreme Court, as was the Equality Act 2010, with regard to discrimination on the grounds of religion or belief. On these principles the court recognised an employer’s duty to make reasonable adjustments to the requirements of a job to cater to religious beliefs. However, it pointed out that the extent of the duty is context specific. It added that this would, to some extent at least, depend on issues of practicability. The court said it would be much better to resolve those in employment tribunal proceedings in the context of a particular case than by an overall declaration of the law in either a judicial review or, as I would suggest, in the present Bill.
The third point is this. The Royal College of Midwives and the British Pregnancy Advisory Service both intervened in the Supreme Court proceedings and argued against the petitioners that to give a broad scope to the right of conscientious objection would put at risk the provision of a safe and accessible abortion service and, furthermore, might encourage other employers to adopt a policy of refusing to employ anyone who has any conscientious objection to abortion. This would reduce the job opportunities available to highly skilled and experienced midwives, perhaps with less extensive objections than these particular petitioners. In short, the Bill takes altogether too absolute and extreme a position and it would be unwise to adopt it.
I add, finally, this. To invoke in support of this Bill, as the noble Baroness did in her House magazine article and has again done today, the appalling treatment of conscientious objectors who resisted fighting in the First World War, is over the top. Rather like the Bill itself, it lacks the balanced approach that these present issues deserve. I am against this Bill.
Lord Dholakia (LD)
My Lords, as a precursor to this debate I have read with great interest the article from the noble Baroness, Lady O’Loan, in the House Magazine. I declare an interest as a member of the All-Party Parliamentary Group for Choice at the End of Life.
I am concerned about the implication of this Bill, particularly as the existing medical and legal regulations work well, striking a sensible balance between allowing healthcare professionals to conscientiously object without abandoning their patients and causing distress to patients and their families.
I support the right of healthcare professionals to refuse to participate in a hands-on capacity in specific medical activities and I am confident that this right to conscientious objection is well established within current medical laws and protocols. I am concerned that this Bill, which aims to expand existing sensible provisions on conscientious objection as it relates to the withdrawal of life-sustaining treatment, will have a detrimental effect on comprehensive, person-centred care currently provided by multidisciplinary teams. In some situations I fear the Bill, if enacted, could lead to patients being abandoned by healthcare professionals. This could also have a detrimental impact on the families and loved ones of patients approaching the end of life at what is an already difficult time.
The Bill would undermine the Mental Capacity Act 2005. Existing legal provisions and guidance on conscientious objection strike the right balance between respect for healthcare professionals’ beliefs and ensuring the best interests of the patient. As an example, I point out that the Bill threatens to undermine the entirely reasonable provisions of 2007’s Mental Capacity Act 2005 Code of Practice, which is very clear that healthcare professionals do not have to do something that goes against their beliefs, but they must not simply abandon patients or cause their care to suffer, so should refer their patient to another colleague willing to participate.
I am not aware that the National Mental Capacity Forum has expressed a view on this Bill but I hope that organisations with an interest in protecting and advancing patients’ capacity to make decisions over their health and care will ensure that conscientious objection should not become a limit on patients’ ability to decide for themselves.
The Bill would negatively impact patients and their families. Let me explain. Providing care for those approaching the end of life can be challenging for healthcare professionals but the well-being of the patient must be the first concern. If the patient has capacity and wishes to do so, they are entitled to make their own decision about consent or refusal of treatment and should be supported to do so. Equally, under the Mental Capacity Act 2005 in England and Wales, if the patient has made an advance decision to refuse treatment or appointed a lasting power of attorney for health and welfare, their decisions or those of their attorney must be respected.
Those decisions should be respected in a timely manner. It would be completely unacceptable for a patient approaching the end of life to have to continue treatment they did not want while awaiting transfer to a palliative care or other team of healthcare professionals that did not object to their decision; and it would be completely unacceptable for the patient’s family to have to watch them receiving this unwanted treatment, but I am afraid that that could be the implication of the Bill.
Let me cite a couple of examples relating to this argument. The cases relate to Mrs N and Paul Briggs. Decisions on withdrawing treatment for people who are in a persistent vegetative or a minimally conscious state—prolonged disorders of consciousness—are necessarily complicated. In several of these cases—such as that of Paul Briggs, the policeman who suffered a brain injury in a car crash on his way to work, and Mrs N, a woman who was in a minimally conscious state over a period of many years due to advanced multiple sclerosis—it has taken huge efforts by their family members, sometimes in the face of objection by professionals, to get their cases heard by the Court of Protection.
Mrs N’s daughter told the judge who eventually heard her mother’s case:
“I cannot emphasise enough how much the indignity of her current existence is the greatest contradiction to how she thrived on life and, had she been able to express this, then without a doubt she would”.
Similarly, before the courts decided on Paul Briggs’s best interests, his wife Lindsey wrote:
“I love my husband but he is dead in all but his body. I don’t know when I will ever lay him to rest in peace. That’s a limbo no one should be in”.
It must have been incredibly difficult for them to see their loved ones suffer over a period of years, receiving treatment that they did not believe they would ever have wanted. Even when the Court of Protection has decided that withdrawing treatment is in the best interests of the patient, some families have to struggle to find healthcare facilities where the staff members do not conscientiously object to their decision.
Let me conclude by saying that the existing rules allow for any healthcare professional to conscientiously object to withdrawing life-sustaining treatment as long as they find another healthcare professional to take over their patient’s care. I fear that the Bill will impose an additional unnecessary strain at an already distressing time on people at the end of life and on their families. It would also run counter to the principles of patient-centred care. I hope that the Bill will be substantially amended in Committee.
The Lord Bishop of Peterborough
My Lords, yesterday, the River Restaurant downstairs helped us to celebrate Burns Night all day. I thoroughly enjoyed the Scotch broth at lunchtime, but I resisted the main course as I was eating out in the evening. I even resisted the whisky bread-and-butter pudding. The main course which I resisted was vegetarian haggis, celebrating Robert Burns in a way that respected the consciences of those who do not want to eat meat. That is a very proper and good thing to do. There is no legal requirement to provide vegetarian haggis, but it was welcome to many and I think that I would have enjoyed it.
The Lord Bishop of Peterborough
Clearly the noble Lord particularly enjoyed it.
Yesterday was not only Burns Night; it was also for church people the festival of the Conversion of St Paul. In his teaching, St Paul is very strong in asserting that although Christians are free to make many decisions morally, they must always respect the conscience of those who are weaker—those who have a tender conscience. That is an absolute requirement of the Christian faith. Those whose consciences are more tender or weak than our own must be respected and not be forced to go against those consciences. We have the same teaching in other areas of religion as well. The Old Testament makes it very clear that the vulnerable and the weak are to be supported and helped. In the teaching of Jesus, he criticises those leaders who lay burdens on ordinary folk that are too heavy for them to bear.
In the history of the world since the time of Christ, in particular in our own country, we can see a great deal of influence by the Judeo-Christian tradition, including the development of free societies, of what we now tend to call liberal democracies. In those societies a great deal of attention has always been paid to the rights of consciences even when, because they are more tender and sensitive, they go beyond the views of many other people. Every free society respects the rights of conscience to a great extent, and we have some of that in this debate. Societies that restrict the rights of conscience tend to be those which are tyrannical and on the extreme left or extreme right of politics. In free societies, a great deal of tolerance is shown to those who have conscientious objections to all sorts of things.
This is not just a matter of religion. Conscience is a very deep part of what it means to be human. It is not only religious rights we are talking about; it is very deep human rights. People should not be forced to go against what they believe to be right or wrong. This Bill, which I support strongly and look forward to seeing further debated and possibly amended, recognises some changes since the Abortion Act. Today, most abortions entail far more involvement by nurses and pharmacists than they did in the early days. Methods of carrying out abortions have changed. I believe that it is right to extend the conscience clause, for example, to pharmacists since their involvement is greater than it used to be. As a society, we need to find ways to modify the law as it was set out in 1967, not just to affirm the conscience clause there. I believe that this is a matter of public concern, of public policy and for public debate. If the 1967 Act needs to be clarified, that should be done not just in the courts but in Parliament on behalf of the people of this country. If the 1967 Act is proving to be in some way unsatisfactory in that some people’s consciences are not being allowed for, we need to do something to modify it. That means not reducing the possibility of abortion or people’s freedom to seek medical treatment, which I want to underscore, but allowing those who have a tender conscience to exercise it. I support the Bill.
Lord Cashman (Lab)
My Lords, I am pleased to follow the right reverend Prelate, who has spoken of the burden to bear. When you are member of a minority, it is a burden that you have to bear. Indeed, it is sometimes reinforced by religious opinions and belief. I respect and defend the right to freedom of religion and belief, but I do not respect the right to impose religion and beliefs upon others who do not share them, and in so doing diminish the rights of others. I therefore rise to speak against the Bill, which I find deeply worrying and troubling. It is an attempt to rewrite laws that respect conscientious objection and which have been working well. It is an attempt to rewrite laws in light of the 2014 Supreme Court judgment, delivered by the noble and learned Baroness, Lady Hale, in the case of Greater Glasgow Health Board v Doogan and Anor, as so eloquently outlined by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. If this Bill were to become law, we would see conscientious objections so widened beyond the wise and learned words and judgment of the noble and learned Baroness, Lady Hale, as to make services such as IVF treatment, end-of-life care and abortions difficult to access and sustain nationally. We would witness the imposition of belief to curtail the legal choices and options of others.
Over the past 50 years, many changes have been made, particularly since the 1967 Act. They are positive changes which have been vigorously fought for and fought against: women’s rights; the right to abortion; fertility treatment and IVF for married, non-married and same-sex partners; equality and rights for LGBT people, rights that some people, organisations and religious bodies still refuse to accept and continue to do their best to hold back. Indeed, the woman’s right to choose is still shamefully denied in Northern Ireland and same-sex marriage is still not available. All of this is connected. As I have said, I defend the right to freedom of religion and belief, but not the right to impose it whereby in so imposing, you reduce the rights of others.
I share the deep concerns of Doctors for Choice UK, whose members have written to say that they support the current legal provisions that allow medical practitioners to opt out of providing treatment that conflicts with their personal and religious beliefs, but that extending the activities to which a healthcare professional could claim a conscientious objection from “hands-on treatment” to,
“any supervision, delegation, planning or supporting of staff in respect of that activity”,
could have a hugely adverse effect on healthcare provision in the United Kingdom. The British Pregnancy Advisory Service is of the same opinion. Doctors for Choice UK also believes that extending conscientious objection in these ways, again as outlined by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would have the potential to create a staffing crisis in certain areas of healthcare. That is particularly true in the National Health Service where hospital wards and disciplines simultaneously cover a number of procedures and conditions.
I thank these organisations, in particular Dignity in Dying, which maintains that as an unintended consequence, the Bill could undermine the principle of person-centred end-of-life care and drive a wedge between non-participating healthcare professionals and their patients. The Bill would allow any healthcare professional—any healthcare professional—to refuse to participate in the,
“supervision, delegation, planning or supporting of staff”,
in any activity with which they do not agree. As has been said, but it is worth repeating, nothing in the Bill would oblige the objecting healthcare professional to refer that patient’s care to another. For example, if someone with advanced cancer has their artificial nutrition and hydration withdrawn, a healthcare professional could object to providing basic care. This could include providing mouth care, managing a syringe driver for pain relief and the alleviation of terminal agitation, prevention of pressure wounds, co-ordinating spiritual and family support and, if appropriate, arranging to discharge the person to die at home or in a hospice.
Having witnessed my own partner die of cancer in the Royal Marsden Hospital, and in the light of yesterday’s debate led by my courageous noble friend Lady Jowell, for the reasons outlined and for many others, I cannot and will not support this Bill.
Lord Mackay of Clashfern (Con)
My Lords, I should probably declare an interest as an honorary fellow of the Royal College of Obstetricians and Gynaecologists. I have also had some responsibility in connection with the other matters referred to in the Bill.
As far as I am concerned, the simple analysis is this: a person who has an objection to abortion thinks that it is wrong to carry out an abortion, generally speaking. There is, of course, a provision limiting that where the mother’s life is at risk. The present law does not allow conscientious objection in that respect. That is a very general realisation of what the conscientious objection will be, but the basic conscientious objection is that it is wrong, in the general case, to perform an abortion. The question is: to what extent should one be required to do what is contrary to one’s belief? People believe that it is wrong. Therefore, it would be right that they are protected from doing what they think is wrong.
I am very familiar with the judgment of the Supreme Court and the noble and learned Baroness, Lady Hale, whom I respect particularly because of various reasons that I will not go into. I respect her judgment very much indeed. It is a judgment on the Act of Parliament as it was. In the Scottish courts, three judges of the Court of Session decided that the wider interpretation was possible. They were in favour of Mrs Doogan and the other lady. The situation was a particular one. These ladies had been in the health service for a considerable time. They were happy to do what they were doing and they did not have to do anything that they thought was wrong. The arrangements were changed and they were then required to do something that they thought was wrong. That was where the matter came into the courts.
I have been in correspondence with Doctors for Choice, which kindly sent me an email explaining what it thinks. I replied to ask for some more detail on what it thought. What it comes to is this: it believes that the National Health Service depends to a substantial extent on people doing what they believe to be wrong. I find it very hard to see that that can be right. On the other hand, I do not think—the Minister may be able to tell us—that the amount of conscientious objection to the various items referred to in the Bill is very large, but let us assume that there is a substantial number. What it is then saying is that it is necessary, in the present circumstances, to depend on people who are serving in the health service to do what they think is wrong. So far as I am concerned, that is precisely what the conscientious laws of this country have been for many years. It is not necessary or right to force people, as part of their employment, to do what they believe to be wrong.
It is said, as a number of noble Lords have mentioned, that the Bill will cause some problems for some people. We have to make the point that the obligation to provide these services is not on the employee but on the health service itself. Therefore, it has the responsibility of making the necessary arrangement to accommodate the views of those who think that these activities are wrong. I do not believe that it is right that the health service or any other service should rely to a substantial extent for its success in requiring any of its employees to do what they think to be wrong. For that reason, I support the Bill. Of course, the detail of it is subject to amendment if necessary, but so far as I can see the phraseology is not very far from that adopted by the Court of Session in Scotland as the interpretation that it thought should be placed on the Act of Parliament as it was.
Viscount Craigavon (CB)
My Lords, I oppose this Bill, but I was grateful to have the article, which has been referred to, in the House magazine by the noble Baroness, Lady O’Loan, to provide some sort of background to how she got to this point, as well as the excellent Lords Library Note, which expanded on some of the references that the article mentioned, in particular the Supreme Court judgment, all of which I will come to shortly.
One might ask, as they do more robustly in the House of Commons on Private Members’ Bills, what is the need for this particular Bill? Given that we saw the first appearance of a Bill very similar to this one from the noble Baroness in our House in June 2015, when it had time only for a First Reading, I was initially wondering whether the need for this legislation had arisen to meet popular demand and discontent at the present law, or whether it might have been created by a small group of the well-intentioned for their betterment of mankind. I hope what I can show here is that the direction is from the top down and that there may not be the popular clamour for more statute law to deal with what is before us.
As we have been made aware in the briefings we have received, the four councils referred to with their registers in Clause 1(2) all have their own procedures for dealing with conscientious objection when it is not covered by statute law. I was not sure that the noble and learned Lord, Lord Mackay of Clashfern, was fully aware of that. I will mention that in more detail. These have slight variations but cover broadly the same ground, particularly in passing on to others responsibilities that one individual can reject for reasons of conscience, and are framed to suit the particular needs of each of these four councils.
I noticed that the one major change to the earlier 2015 Bill was the addition, in Clause 1(2)(d), of the General Pharmaceutical Council. That adds to the numbers who could be directly or indirectly affected by this Bill—about 53,000 members who are on its register. I therefore would have thought that at least some sort of proper consultation with the council should have taken place before incorporating it in this Bill, but I understand that that has not happened. That is very much from the top down.
It also may have been thought that pharmacists could become a major channel for the distribution of medical abortion pills. The noble Baroness made that connection in her speech. But, as I explained, without any further statute law, the General Pharmaceutical Council already has a perfectly good provision in place for conscientious objection by its members, framed for their particular professional circumstances.
To try to put all these councils in a common straitjacket of general and far-reaching statute provisions would be counterproductive and require extensive continuing legal dispute and interpretation.
The Supreme Court judgment of the noble and learned Baroness, Lady Hale, particularly in paragraph 38 and her interpretation of “participate”, is a very good division of the existing position between what is suitable for statute law and what can be fairly achieved by individual guidelines, which, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, can be context specific or decided in employment tribunals.
From a practical point of view, we have learned from the various submissions that we have received on this Bill, from organisations with complex medical procedures and specialised manpower, how much uncertainty this Bill would cause in day-to-day running, mainly in one never being quite sure what staff would be available to meet ever-changing needs and circumstances, with the patients being the ones to suffer.
In the article that I mentioned at the beginning, the apparently simple phrases,
“the taking of human life”,
and,
“to take a human life”,
occur. Most of us here know that they are the beginning of divergent views in the fields we are addressing today—the noble Baroness, Lady O’Loan, used the same phrases. For example, when exactly does human life start? When is withdrawing life-sustaining treatment or turning off a machine justifiable? Many more questions are begged by those simple phrases, which might give us a false sense of a shared starting point. I hope that I have highlighted some of the potential difficulties with this Bill, which I oppose.
Lord Green of Deddington (CB)
My Lords, I congratulate the noble Baroness, Lady O’Loan, on bringing forward this Bill, which sheds a welcome spotlight on a very important area. I can be very brief, because most of the main arguments have been made.
I start from the position that nobody should be obliged to participate in a procedure to which they have a conscientious objection. The noble and learned Lord, Lord Mackay, has already spoken with his usual eloquence and power on that aspect. The issue, however, turns on what we mean by “participation”. The Bill is very wide on that subject; the noble Lord, Lord Cashman, referred to it twice. Let me read the key words again:
“‘Participating in an activity’ includes any supervision, delegation, planning or supporting of staff in respect of that activity”.
As the noble Baroness, Lady Young, pointed out, that is very wide.
I find myself in agreement with the judgment of the noble and learned Baroness, Lady Hale, that it is unlikely that Parliament originally intended to include a host of ancillary, administrative and managerial matters in the coverage of the Bill. On the other hand, I think that she went too far in confining the application to those,
“taking part in a ‘hands-on’ capacity”.
That seems far too narrow. I hope that in further discussions, perhaps in Committee, a middle course can be found.
The situation in respect of the withdrawal of life-sustaining treatment appears to be different in respect of nurses, who cannot lawfully raise a conscientious objection. Their professional code, as I understand it, calls for them to arrange for a suitably qualified colleague to take over. This of course is a hugely sensitive area, but, as a layman, it seems that the present formula is about the right balance in this field. To extend the wide definition in the Bill to issues arising from life support seems to me to be a step too far. For my part, this Bill would need some amendment before I could support it.
Lord Anderson of Swansea (Lab)
My Lords, I also speak as a layman and someone who feels it a privilege and refreshing to be able to take part in such a debate, which is non-partisan and features so many experts, leading lawyers and leading medics in this field. It is the House of Lords at its best.
I put on record immediately that I am not with the noble Baroness, Lady O’Loan, on abortion, which I see as justified on social grounds, but I am with her on conscientious objection—indeed, I would go so far as to say that, for me, the recognition of conscientious objection, from village-Hampdens on, is the sign of a civilised society as against a non-civilised society. My presumption always would be in favour of conscientious objection.
The problem, as my noble friend Lady Young said, is that if one agrees, as I do, that the Court of Session was correct and that the current law needs to be extended, where does one draw the line? How does one find some position of defining “participation”? Can it be extended so far as to be ridiculous? There is of course much learning both in respect of participation and of remoteness, but I think that many people would agree that we need to go beyond a very narrow interpretation of grounds of conscientious objection which a number of colleagues here have put on the relevant provision in the 1967 Act. Yes, we should extend it, but we should also, perhaps by amendment in Committee, say how one defines the extent of participation so as not to make it ridiculous.
The importance of freedom of conscience is recognised in many international instruments—I know that the noble Baroness, Lady O’Loan, has gone through a number of them—from Articles 1 and 18 of the Universal Declaration of Human Rights to Article 9 of the European Convention on Human Rights. For the rest of this week, I have been in Strasbourg sitting on the Legal Affairs and Human Rights Committee and on the committee responsible for the selection of judges to the court. As the noble Baroness said, our own Equality Act has religion and belief as protected characteristics and includes reference to lack of religion or belief.
Freedom of conscientious objection should surely be not just a wish but relevant in practice. It should be relevant in practice also in the workplace. The European Court of Human Rights has interpreted the convention rights in the case of Eweida v United Kingdom, which was that of the Coptic Christian who wished to wear a cross while working for British Airways. A strong court held in her favour on the basis of her freedom of religion. Some concerns have been expressed both in the Assembly of the Council of Europe and here that the unregulated use of a conscientious objection clause could limit a woman’s right of access to lawful medical care. That would be taking it too far. The noble Baroness, Lady O’Loan, has already mentioned Resolution 1763 passed by the Parliamentary Assembly of the Council or Europe in 2010, so I shall not quote what is already on record.
It is surely wrong to deter individuals from entering and remaining in the medical profession, particularly in the case of Doogan, where the circumstances of employment of the two women had changed from the time when they first entered that employment. The question about recruiting and retaining is particularly relevant in the National Health Service, and not just during the current winter crisis. We should be conscious of any deterrent or obstacle which might be put in the way of caring individuals who are inclined to apply for work in the health service. Clearly, the NHS is struggling at the moment to hire and retain GPs. The number of surgeries—which I accept is a wider matter—dropped from about 8,500 a decade ago to 7,500 today. We all want to see a GP when we need to and no additional barriers should be put in place. There must surely be a reasonable way to accommodate conscientious objection, so far as possible, while finding appropriate lines as to how far one can go.
A possible precedent might be the way that the Committee of Ministers of the Council of Europe dealt with the prisoners voting case, the case of Hirst, in 2005. Happily, in December of last year a reasonable accommodation was reached on the “margin of appreciation”, and I applaud David Lidington, the Minister, for his work in that context. Is there not a “margin of appreciation”, or a reasonable accommodation, in these cases, whereby Solomon or the reasonable person can say, “The current law has been construed too narrowly; we need to go further, but we need to draw those lines”? I hope that, perhaps in Committee, perhaps by amendments, we can find a way through this, but I agree that we need a debate on this highly sensitive issue; therefore, for the moment, I support the Bill and the excellent way it was put forward by the noble Baroness, Lady O’Loan.
Baroness Eaton (Con)
My Lords, in my contribution to the debate on this important Bill, which I welcome and thank the noble Baroness, Lady O’Loan, for introducing, I wish to discuss the concept of conscience and how necessary I think it is to have effective provisions to protect it in medicine. When we talk about conscience, it seems to me that we mean the part of ourselves that constitutes moral integrity; the deeply held and important moral judgments of our conscience constitute the central personal core. They define who we are, at least morally speaking, and what we stand for: the central moral core of our character. In order for any individual to maintain their integrity, they cannot violate their fundamental moral commitments. If they achieve this, it gives others clear reason to respect them, not because those commitments must be true or justified in the eyes of everyone else, or even just the majority, but because the maintaining of moral integrity is a crucial action, central to our personal coherence and well-being.
Conscience involves the moral wholeness of the person, their emotional, intellectual and moral life. When someone betrays their conscience, they do nothing less than disregard a deep, core aspect of their personal identity. Given this reality, it is utterly impossible to detach conscience from anyone’s professional life, least of all a medical professional who deals with often grave moral situations every day. A conscientious doctor, nurse or midwife is conscientious because of their internal moral life, not merely because they are proficient at mechanistically following official rules and guidelines. To illustrate how important legal conscience protections are, it would be helpful to note one crucial difference between the obviously pertinent parallel made already by the noble Baroness, Lady O’Loan, between conscientious objection in military service to what someone believes is unjust killing and conscientious objection in medicine. That difference is the nature of the role of the clinician.
Medical professionals are vocational actors, not mere conscripts in a logistical machine or functionaries for the medical system. They are not people who are providing a shopping service. The patient sees a doctor for advice and guidance and the nurse for direct care, but these are not merely employees of the NHS who must do whatever the system tells them to do. We would not want a doctor to do something that went against their professional judgment, no matter what a patient may want. I am reminded that, according to the Mental Capacity Act, one may refuse consent to treatment but one may not demand that something be done to you. The integrity of the individual clinician is part and parcel of the integrity of medicine itself. Would we really trust a doctor who did whatever we wanted and put aside his judgment for the sake of fulfilling our wishes? Of course not. We would want them frankly to give us their best and most conscientious judgment. For them to compartmentalise, as I think some think they should, their most fundamental moral beliefs from their professional behaviour would be to seriously compromise their integrity. This would be in no one’s best interest.
It is crucial, then, to the right practice of medicine for both medical professionals and patients, as in public life itself, to protect freedom of conscience. The Bill, it seems to me, would allow for areas of medicine that are particularly controversial to remain open to those people who have very high conscientious standards, and who would therefore be welcome individuals to enter those sorts of roles. It would require a minority of medical professionals to be reasonably accommodated, a concept which I believe is highly important in this debate, and thereby included in a manner consistent with our treatment of minorities more generally. In so far as this is the case, it would allow for a society that is more truly liberal and open as well as qualitative in its medical care, due to the fully integral character of those allowed to act within it, in all sectors of medicine. That can only be for the common good.
If we care about conscience in society, and particularly in medicine, then we should maintain a framing of our laws that allows for as much liberality as is sensibly feasible in conscientious objection when it comes to the perceived ending of human life. The Bill achieves that very thing. For that reason, I am delighted it has been introduced and passionately support it.
Baroness Richardson of Calow (CB)
My Lords, the NHS relies on the conscientious commitment of many thousands of people who are willing to use their skills and training in order to promote the well-being of patients and to provide particular care with compassion. Every patient deserves to be treated by those whose primary task is to seek their welfare and respect their wishes. Very many of those who work in the health service do so out of religious conviction. Their faith has led them to believe that this is a way, through a vocation, to give particular service to others, and this is to be welcomed. Their faith stimulates what they do and sustains them through the very difficult things they are required to do. A minority of these find that their faith, or their belief system, is incompatible with what they are asked to do on occasions. Their firmly held convictions are established as a right in law to be respected and protected already.
The Bill has the express intention of clarifying what those with a conscientious objection ought or ought not to be invited to participate in. Its intention is to clarify that participation, but in fact the Bill goes much further than that: it expands the level of participation that could be protected, not only, as we have already heard so many times, the hands-on, active participation, but extending it to,
“supervision, delegation, planning or supporting”,
the staff. It fails to determine where responsibility lies for the exercise of care for those patients for whom the conscientious objector finds it difficult to care. Current practice is that they must inform colleagues and patients and that care must be passed on to another, but what is defined as participation in the Bill seems to deny that right. It removes that responsibility but does not define where it should go.
I am well aware that anecdotes do not always make good evidence, but personal experience informs opinions. My husband at the age of 42 was diagnosed with a brain tumour. For the next 10 years, we managed that condition at home, with repeated operations and procedures, increasing disability and family trauma. Then his consultant decided that he would attempt aggressive surgery, which was carried out. At the end of the operation, the consultant said to me that the tumour had been removed but, in doing so, he had done extensive damage to the left frontal lobe; my husband had had a stroke during the procedure, and he was unlikely to have any good life, he was unlikely to live through the night, and it was not in his best interests to do so. He was, therefore, not putting him into intensive care but on to an open ward so that the family could say their goodbyes.
In the evening, my husband was obviously failing, and the on-duty registrar was called. He insisted, despite all my pleas, that my husband should be put on life support in intensive care. It was his duty, he said, to do so, to preserve his life. He survived; we suffered 8.5 months of attempted rehabilitation in hospital; and he had 14 years of residential care before he died, aged 69. My family paid a very high price for that doctor to have a clear conscience. Of course, honestly held conscientious objections must be respected and protected, but it must not be in order to jeopardise the duty of care and respect for the best interests of the patient and the wishes of the family.
I was a little concerned, reading the excellent Library briefing, that at the end it gives some figures from a survey held in 2012 of the views of medical students. Of the 733 people who were asked for their views, almost half believed in the right of doctors to hold conscientious objections and to be protected. As medical science grows and develops and more interventions are likely to raise moral and ethical dilemmas, perhaps it will be necessary to clarify aspects of the law as it relates to conscientious objections, but this Bill is not the way to do it.
The Earl of Oxford and Asquith (LD)
My Lords, I find many reasons to support this Bill on moral, philosophical, legal and practical grounds, but I wish to be brief and I shall try to confine myself to four or five points. First, there is inadequate protection in the law at the moment, I believe, for the issues of conscience addressed by the Bill. Yes, there are lines of professional guidance issued by the General Medical Council and the General Pharmaceutical Council, but the guidance is not underpinned by statutory provision, and guidance is easily changed by a small number of people or by pressure groups. The presumption of conscientious objection can be quickly eroded.
Secondly, I disagree with the arguments of some previous speakers that the Bill will restrict access to any service that the National Health Service is obliged to provide. What it does is to clarify the right to conscientious objection in so far as case law has indeed narrowed the interpretation of what participation actually means in the operations under consideration. Furthermore, since the passing of the Abortion Act 1967, medicine has developed to the extent that the role of the doctor or surgeon is now less prominent than it was then. There are now nurse prescribers and pharmacist prescribers, and it is doubtful that the present state of the law adequately protects those practitioners if they wish to invoke an objection against becoming involved.
Thirdly, on practical grounds alone, it is clear that the current state of the law is deterring some nurses and, indeed, newly qualifying doctors from entering on a career in obstetrics and gynaecology. There is not only a fear of discussing this issue; people are being put off from applying for such posts lest their moral convictions result in a failure to advance in these careers. This is not a question of adherence to a specifically Christian confessional morality. I know of one case in which a distinguished registrar, a highly skilled and eminent gynaecologist who is a Muslim, was undoubtedly sidelined in his career because of his objections to conducting the kind of operations addressed in this Bill. He did not find that the protection offered by Clause 1(3) before noble Lords today was available to him. But, as the noble Baroness, Lady O’Loan, has said, it is not even a question of confessional adherence to any religious belief. The right invoked in this Bill of any individual, irrespective of belief, is fundamental to our law, and it is fundamental to European laws.
To conclude, I have lived much of my working life in countries and under regimes whose citizens have had no presumption to conscientious objection or to the protection of freedom of conscience. When conscience is not so protected within a society, it is discernibly the case that individuals may develop as diminished human beings—as a person who may have no alternative but to act in violation of principles that he or she recognise as defining his or her humanity. To withhold or deny this protection can have a profoundly damaging effect on personality and, ultimately, can lead, in my observation, to the impoverishment of moral beings. Thus I agree with the broad thrust of the argument advanced earlier by the noble and learned Lord, Lord Mackay. For these reasons, I believe that the passage of the Bill, maybe in an amended version, will present the world with a refined example of British medical ethics, destined to be the admiration of many.
Lord Shinkwin (Con)
My Lords, I begin with an apology. I have just had some injections to treat a facial nerve disorder, which has affected my pronunciation, so on this occasion I may have to speak slightly more slowly than usual to make myself understood. I shall try not to speak too slowly.
I congratulate the noble Baroness, Lady O’Loan, on introducing her Bill, which I support—and I do so not only as someone whose severe disability would have made me a prime candidate for abortion but also from the patient’s perspective, which, as the noble Baroness, Lady Young of Old Scone, said, is so important. Today is quite a big day for me, as 22 years ago to this very day I almost died. Twenty-two years on, I remember that my neurosurgeon could not give me odds on surviving, but I am still here. I am acutely aware that it could so easily have been very different. The treatment that I received quite literally sustained my life; equally, its withdrawal or denial would undoubtedly have ended it.
In terms of their relevance to me personally, I can tick the box for Clause l(l)(a), l(l)(b) and l(l)(c) of this Bill. As a patient who has placed my life in the hands of medical professionals and may well need to do so again, I believe, as I am sure all noble Lords do, that trust in both their clinical competence and their personal ethics is an essential element of the patient-practitioner partnership. I therefore totally agree that no medical practitioner with a conscientious objection to participating in the activities covered by the legislation mentioned in Clause 1(1), because it goes against their personal beliefs, should be under any duty to so participate. I also agree that there is a pressing need to clarify the law in light of the way in which it has been weakened by precedent and practice, as we have heard.
As the noble Baroness, Lady O’Loan, said, conscience is not the preserve of religion. Indeed, I certainly do not assume that a medical practitioner’s personal beliefs will necessarily be informed by a religious faith. For example, they may know a person who was diagnosed with a disability before birth and has turned on its head their preconception of a disabled person’s quality of life, their capacity to contribute to society, and their ability to love and be loved as an equal, valued human being. I should add that as I have stated previously in your Lordships’ House, I do not take a position on abortion per se, which is covered in Clause 1(1)(b) and (c). I do, however, take a position on equality.
The central point for me and, I hope, for all noble Lords participating in this debate is that genuine equality does not have a cut-off point, a beginning or an end; neither is it relative. Equality is as fundamental to who we are as human beings as the other unique hallmark of humanity: our capacity to anchor our actions within the context of conscience. For it is our conscience, surely, which exposes the dangerous deceit that it is somehow consistent with the concept of equality for a more powerful group of human beings to act as if they were more equal than another, weaker group of human beings and, moreover, for them to decide that their superiority in strength means that they can pretend that exercising their power is a human right. A group may be more powerful—which group is not more powerful than disabled human beings?—but it is never more equal. Anyone who cares to read George Orwell’s Animal Farm knows that he well and truly nailed that lie.
The Bill defends not just the fundamental human right of freedom of conscience, but the right not to prevaricate on prejudice or to equivocate on equality. It defends a human being’s right to choose to recognise our common humanity and thus our intrinsic equality, regardless of disability or, for that matter, race, sexuality or gender. For, if we truly believe in genuine equality, how can disabled human beings be treated any differently from any other protected characteristic group covered by the Equality Act 2010 at any stage of our existence, whether before or after birth? Surely a medical practitioner is entitled, in all conscience, to ask themselves that simple question. This is not religion. It is cold, hard, clinical logic and if, having asked themselves that question, they should come to the logical conclusion that participating in the activities covered in Clause 1(1) compromises their conscience, the law must protect them in line with Clause 1(3). No medical practitioner should suffer discrimination for their conscientious objection to discriminating on grounds of disability.
The Bill attacks no one, it condemns no one and it threatens no one. Instead it affirms, upholds and protects what we all value: integrity, equality, our common humanity and the greatest human right of all—the freedom to think, speak and act in accordance with our conscience. In backing the Bill, we not only affirm our shared values; as equal human beings, endowed with a conscience, we affirm ourselves.
Lord Singh of Wimbledon (CB)
My Lords, I support this important Bill. It is a timely recognition of the importance of conscience and ethical belief in looking at the end-of-life decisions, and the increasingly complex issues and personal dilemmas, that many face in their daily lives. Speaking from a Sikh perspective, I fully support the Bill’s sentiments as well as its aims and objectives. Majority opinion can, at times, be unthinking and we need to be wary of being pushed, or pushing others, to support debatable attitudes that at times affront ethical and moral principles.
This year, as has been mentioned, while commemorating the centenary of the end of the carnage of World War I, we should pause and reflect that it was also a war in which conscientious objectors were brutally treated—or even shot—for their belief that it is wrong to kill. Something of the same dilemma was faced by Sikh soldiers when the Indian army attacked the Golden Temple in Amritsar in 1984. This attack on the holiest of Sikh shrines, on one of the holiest days in the Sikh calendar, was clearly political. Soldiers were ordered to shoot innocent pilgrims. Not surprisingly, some Sikh soldiers refused and were accused of mutiny. Some were shot, others were cashiered out of the army and some were to spend years in prison. They were accused of treason and disloyalty to their oath of allegiance to the state. True, yet in refusing to shoot non-combatants they were being true to the ethical teachings of their religion. This requirement to be true to our conscience is embedded in Sikh scriptures. Guru Ram Dass, the fourth Guru of the Sikhs wrote:
“All human powers men make pacts with
Are subject to death and decay
Righteous teaching alone prevails”.
In the Nuremberg trials at the end of the Second World War, many Germans accused of war crimes against the Jews and others pleaded that they were duty bound to follow orders, however questionable. The court held that the requirements of any state were secondary to the overriding norms of civilised behaviour.
Rapid advances in the field of medicine and today’s increasing tendency to overfocus on the rights of an individual can easily lead us to ignore the rights of wider society, and the ethical dilemmas that sometimes questionable procedures pose for those immediately involved. The downside of what we do is not always immediately apparent. The initial, clearly limited and humane objectives of the Abortion Act 1967 have, over time, been largely ignored. Abortion has become contrary to the original intentions of the Act and the ethical teachings of most religions and beliefs. It has simply become another method of birth control. We must have the right to object and to not take part in what we consider to be the unnecessary taking of human life.
The Human Fertilisation and Embryology Act 1990, which legalised embryo-destructive forms of research, the rapid expansion in molecular biology and new genetic modification techniques can impinge on deeply held ethical beliefs, and people should not be compelled to do anything that they believe is contrary to respect for life. While conscience clauses were included in the initial legislation, they have been continually eroded by social pressures to conform. Those involved in procedures that impact on sincerely held ethical beliefs must be given the right to opt out.
The need to respect conscience goes beyond the field of medicine. Yesterday, I was invited by the DfE to give a Sikh perspective on relationship teaching in schools. As a Sikh, I am appalled at the undue emphasis on sexual relationships and sexual identity currently being taught in school. Young children are led to question their gender and are unhelpfully offered support to make permanent potential differences, which are generally passing phases in growing up. Parents and teachers should have a right to question or opt out of such teachings.
Today we should heed the words of the great philosopher James Russell Lowell who wrote:
“We owe allegiance to the State; but deeper, truer, more
To the sympathies that God has set within our spirits core”.
This Bill is timely, well considered and necessary. I give it my full support.
Lord Dubs (Lab)
My Lords, I first had the pleasure of meeting the noble Baroness, Lady O’Loan, in Northern Ireland many years ago, and I was very impressed by the work she did there and the excellent way she contributed to the peace process and decent life in Northern Ireland. It is therefore with some regret that I have to differ from her on this occasion. I feel pretty bad about that, but I feel I must do so. She was such an important figure in those years in Northern Ireland.
Of course we all agree about the right to conscientious objection. It seems to me that we are simply debating where to draw the line. There is no real point of principle here. I think the current provision for conscientious objection in medical practice has just about got the balance right between healthcare professionals’ moral beliefs and patient freedom. I fear that this Bill would tip the balance in the wrong direction, away from the rights of patients. That is the basis of my objection. I do not think the case has been made out for the Bill, at least, not to my satisfaction.
There is one particularly important point. There is nothing in this Bill which would oblige the objecting healthcare professional to refer a patient’s case to another professional who did not have an objection. In other words, if a doctor, nurse or whoever is unhappy about being asked to carry out a procedure or form of treatment, surely they should be able to do what has traditionally be done, which is to say, “I can’t do this, but I’ll refer you to somebody else who can”. That is an enormous gap in the Bill. I do not think I have misread the Bill; it is not there, and that is unfortunate.
The Bill would significantly widen the scope of conscientious objection. It would increase the number of medical procedures to which conscientious objection would apply under the law. It would broaden the range of professionals to whom it would apply. For example, Clause 1(2) states:
“‘participating in an activity’ includes any supervision, delegation, planning or supporting of staff in respect of that activity”.
That participation may be so peripheral to the activity itself that it is extending the principle of conscientious objection too far. I much prefer the comment of the noble and learned Baroness, Lady Hale, about it having to be hands on, but even if we feel the noble and learned Baroness was too narrow, the Bill goes far too far in the subsection I read out because we are talking about supervision, delegation and planning.
Let me spell it out. For example, you might have a palliative care clinical nurse specialist supervising the specific care needs of patients on an oncology ward, including those who may have refused life-sustaining treatment, such as chemotherapy. It is the right of patients who suffer from cancer to refuse chemotherapy, and I know some people who do. Surely that ought not to be within the ambit of the Bill. I could give many other examples. The rights of patients should not be forgotten in this way.
The Bill also seeks to expand the activities to which a healthcare professional could object. It is crucial not to distinguish between people starting treatment and people stopping treatment at a time of their choosing. We heard a very emotional speech from the noble Baroness, Lady Richardson, about her family circumstances. It seems to me that the right not to have treatment and the right to stop treatment are fundamental, and my fear is that this Bill would make that freedom less effective
Lastly, there are people who want to refuse life-sustaining treatment in advance because of the possibility of deterioration in their mental health condition. I fear that the Bill is silent on whether healthcare professionals can conscientiously object to enabling mentally competent adults to refuse in advance life-sustaining treatment which others may regard as necessary.
I regret having to object to the Bill, but I do. I think it would be to the detriment of patients and I do not believe it takes the argument of conscientious objection any further in a sensible way.
Baroness Cox (CB)
My Lords, I congratulate my noble friend Lady O’Loan on introducing this Bill. The points I wish to make have already been made in far more eloquent contributions than mine will be, but I wish to put on record very briefly my reasons for strongly supporting this Bill. I should acknowledge my position as an honorary vice-president of the Royal College of Nursing.
As a former nurse, I feel very strongly about the issues under consideration. It seems that of all healthcare professionals who would be positively affected by the successful passage of this Bill, none would be more so than nurses and midwives as nurses are likely to be asked to assist in the withdrawal of life-sustaining treatment and midwives are likely to be asked to assist with enabling abortion, the two more relatively common practices addressed by the Bill.
This is a matter not of imposing values or beliefs on patients but of asking for the right to conscientious objection where a human life is being taken, by asking the National Health Service to accommodate professionals who have religious or philosophical convictions which directly inform the conscientious performance of their role. Such beliefs are given protection under law from discrimination in conscience clauses recognised—indeed, originally called for—by professional bodies. I refer, for example, to the inclusion of the conscience clause in the Abortion Act. The Royal College of Nursing, the General Nursing Council, which today is the Nursing and Midwifery Council, and the Royal College of Midwives all called for a provision to help to protect the professionals they represented, and rightly so. It was this representation which informed the framing of the Act and which should inform our interpretation of it today.
As the Royal College of Nursing position statement on abortion states:
“We equally acknowledge and respect those nurses, midwives and health care assistants who have a conscientious objection within current legislation”.
This acknowledgement is important because it reflects the understanding that conscientious belief is not just a personal idiosyncrasy but an essential element of what it is to be a human being and, most importantly in this context, a human being providing healthcare and medical treatment. That is why such belief is protected under equality legislation, and why we have taken pains in previous law to accommodate the conscience of medical professionals. Unfortunately, as has been highlighted by others, recent legal judgments have demonstrated a degradation of conscience protections in law. Correcting this situation, as the Bill would do, thereby allowing freedom of conscience for healthcare workers, ensuring their freedom from unjust discrimination and respecting diversity of belief, would be a very significant and much-needed achievement.
For the sake of those serving in the medical, nursing and midwifery professions, for the sake of the patients they serve and for the sake of the integrity of healthcare professions, I believe ensuring that conscientious objection is given proper protection in law would be a truly important reform, which this Bill seeks to do. That is why I give it my strongest support.
Lord Rowe-Beddoe (CB)
My Lords, I support the Bill brought forward by my noble friend Lady O’Loan. I bring your Lordships back for one moment, as has just been referred to by my noble friend Lady Cox, to the Title of the Bill we are debating: “Conscientious Objection”. In the context of the word “conscience”, I support and agree with the mainstream academic view, which was briefly referred to earlier, articulated by ethicist Professor Dan Brock of the Harvard Medical School in 2008:
“Deeply held and important moral judgments of conscience constitute the central bases of individuals’ moral integrity; they define who, at least morally speaking, the individual is, what she stands for, what is the central moral core of her character”.
The truth is that there is a sense—which I think Brock draws out rather well—in which the role of conscience highlights an important part of what makes us human.
There is something decidedly sinister, oppressive and inhuman about societies that do not make space for conscience and which make people suffer for remaining true to their moral judgments of conscience informed by secular or religious values. As academic and expert in this field Dr Mary Neal of the University of Strathclyde legal department puts it:
“Conscience clauses exist primarily to protect people from moral responsibility for what they regard as wrongdoing”.
This seems a vital part of our legal framework and one which, in the areas of medicine we are discussing today, is widely respected internationally.
Article 9 of the European Convention on Human Rights outlines that everyone has the right to freedom of thought, of conscience and of religion. Furthermore, as has already been referred to, Resolution 1763 of the Parliamentary Assembly of the Council of Europe calls on Council of Europe members to guarantee the right of conscientious objection for medical procedures in the very areas described in the Bill, while, importantly, also ensuring patients are able to access appropriate treatment.
At this point, some might say that although they have no desire to force people to act against their conscience, people with conscientious objections to procedures covered by Clause 1 should not enter the medical profession—no one has to be a doctor, a midwife or a nurse. I do not find that position at all persuasive. As someone who has spent his life in business—commercial, education and the performing arts—I am as keenly aware as anyone that every industry wants hard-working, dedicated people operating in their fields. We want hard-working, dedicated doctors, nurses and midwives working in this country. Individuals who enter these professions often do so because of their deep concerns for human life. It is therefore no surprise that the medical procedures covered by Clause 1 would be problematic to some of them. In the absence of the Bill, I believe two groups would get into difficulty.
First, let us consider those who have already trained and become medical professionals, and who have conscientious objections to abortion. The 2016 report Freedom of Conscience in Abortion Provision highlights evidence of clear conscientious objection-based discrimination against those already in the medical profession. These were not frivolous claims but serious concerns expressed by those who reported that they would not be able to progress their careers if they objected to abortions. It is for this reason that I strongly support the employment discrimination protections in Clause 3.
Secondly, let us consider the implications of asserting that only those without a conscientious objection should enter a medical profession. This will clearly be a huge disappointment to those who aspire to be medical professionals and who otherwise would have become talented doctors or nurses. I know all noble Lords are greatly disturbed by the news of the shortage of medical staff in the National Health Service. In this context, putting any barriers at all in the way of entering the medical profession because individuals feel they cannot exercise their freedom of conscience is clearly counterproductive.
The irony that some should argue against conscience on the basis that it will apparently restrict services is greatly compounded by the fact that the right to conscientious objection proposed in the Bill, and already in law, applies only to individual professionals. The National Health Service in both England and Wales has a legal obligation to provide abortion services and the responsibility to ensure sufficient provision.
I do not wish to see medical professionals condemned to being impersonal distribution mechanisms rather than people. I do not wish—I am sure none of us do—to have services delivered, especially healthcare services, by people who have been forced to renounce a key aspect of their humanity. We want doctors and nurses who are more, not less, human and that will only happen if we honour their humanity. I want to live in a country where we have a richer conception of human beings and where we do not weaponise consumer rights, such that the consumer can demand his pound of flesh from the provider without any concern for the moral difficulty it might place him or her in. It seems to me that part of the challenge of living in a civilised society is having the grace to exercise one’s rights in a way that has regard for how doing so impacts on other people. I am committed to this Bill.
Baroness Meacher (CB)
My Lords, I express my great respect for my noble friend Lady O’Loan but also my considerable concern about the likely consequences if this Bill were to reach the statute book. I also pay tribute to the extraordinarily moving contribution from my noble friend Lady Richardson, which for me says it all. The focus of my remarks will be Clause 1(2) and in particular the widening of the definition in that clause of the term “participation” in the treatment process. I will limit my remarks to the issue of withdrawing life-prolonging treatment at the request of the patient.
In this context, the issue today is the right of patients to decide when and whether to accept medical treatment. In the past, of course, it was assumed that doctor knew best and the patient should not have any say in what happened to them should they fall into the hands of the medical profession. But in recent years, a basic tenet of medical treatment has become the right of the patient to know about the side-effects of treatment and the consequences of non-treatment, so that they can make an informed decision about what they know is in their own best interest.
The centrality of the patient in treatment decisions is assumed throughout adult life—until the months before death. The General Medical Council makes clear the duties of medical practitioners in its guidance, Treatment and Care towards the End of Life: Good Practice in Decision Making, published in 2010. Importantly, the GMC makes it clear that a doctor must not refuse to withdraw life-prolonging treatment because of a conscientious objection without first ensuring that arrangements have been made for another doctor to take over. In other words, a conscientious objector can—fair enough—have a conscientious objection, but must not interfere with the ending of life-prolonging treatment if that is the wish of the patient. If it is the wish of the patient it is because it is in the best interests of the patient. The patient’s wishes must be paramount. Similar emphasis is placed on the patient’s right to decide in the Mental Capacity Act Code of Practice—which I believe my noble friend Lady O’Loan knows extremely well—and by the Nursing and Midwifery Council.
The provisions of this Bill will place an unnecessary additional burden on the medical professionals and others in our already drastically overstretched NHS. This worries me deeply, because we want patients to get the treatment that they want and deserve. If the GMC’s and other guidance is not fully complied with, the important needs of patients will not be met. The current law works well; as they say, if it ain’t broke don’t fix it. The law allows medical professionals to conscientiously object without abandoning their patients and without compromising the principles of person-centred care. Clause 1(2) of this Bill intends—as noble Lords know well after all these very good speeches—to extend the definition of “participating” in the withdrawal of treatment to encompass,
“any supervision, delegation, planning or supporting of staff”.
As other noble Lords have said, this is in direct conflict with the Supreme Court decision, delivered by the noble and learned Baroness, Lady Hale, that:
“‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.
It is terribly important, I think, that a medical professional should not be required to do something directly contrary to their conscience. I hope your Lordships will want to uphold the Supreme Court decision and, therefore, to reject this Bill. My noble and learned friend Lord Brown set out that decision in detail, which was most helpful.
I support the concern of the noble Lord, Lord Dubs, that this Bill also says nothing about whether healthcare staff could conscientiously object to helping mentally competent adults with their advance care plan, including clarifying situations where they would want treatment to be withdrawn. If that happened, it would have a swathe of further detrimental effects for patients. It is important for us all to try to put ourselves in the position of a dying person whose suffering has become unbearable and whose treatment is only prolonging a situation they find intolerable. The patient wants the ability to decide how much suffering they are willing and able to take. Can anyone really say that the patient should be denied that right?
Particularly vulnerable, if this law were passed, would be a terminally ill patient in a hospice who decided that they wanted treatment to cease, but whose charge nurse with management responsibility for their care had a conscientious objection to that patient’s decision. Would that charge nurse really be able to ensure that someone else took over their management responsibility? Would there be such a person? This law is dangerous. It would have a negative impact on palliative and hospice care. Terminally ill patients could be required to suffer more than they already do—people suffer enough—and, therefore, wrongly, in my view.
This is a complex issue, but I believe that the current law strikes a pretty good balance. I therefore cannot support this Bill.
Lord Elton (Con)
My Lords, to begin, perhaps I should try to allay some of the anxieties of the noble Baroness, Lady Meacher, by referring her to Clause 1 of the Bill, which restricts its effect to activities under the Human Fertilisation and Embryology Act 1990 and the Abortion Act 1967, so it is not, I think, going to take us into the area of hospices and so on. I will speak very briefly, because so much has been said already, and said well. My noble and learned friend Lord Mackay has set out very clearly most of the reasons why I support this Bill in legal terms, and my noble friend Lady Eaton has set them out in philosophic terms. I would rather turn to the practicalities, as there is a common concern, not limited to those who oppose the Bill in principle, about the extent to which the exemption in the Bill applies.
Two things need to be kept in mind as we start this. The first is to empty our minds of our own views as to the rightness or wrongness of the termination of life. What we are looking at is the rightness or wrongness of requiring people to do things which are absolutely abhorrent to them. The question is, how close to the deed that is done do you have to be before you are right to think that you are in some sense guilty? Therefore, it might be helpful to look at how we apply this test elsewhere. For instance, if there is a burglary and I make arrangements for the burglar to have somebody keep watch while he burgles, or if I arrange a getaway car and delegate the driving duty to somebody else, it would be quite clear in a court, I would have thought, that guilt attached to me because I had made it possible for the burglary to take place.
So the question is, in my mind, at what stage in the administrative and preparatory procedures can a person who is involved in them properly say that, “If I had not done this, that would not have happened”, or “If I had not provided this particular pharmaceutical product, or had not myself been present at a particular time enabling a certain function to take place, it could not have happened”? The definition we must seek in Committee is one which makes clear where the line stops in the administrative and preparatory train—the line below which there is no guilt, where what you are doing is organising the bus service that goes past the house that was burgled and not the car in which the burglar got away. It is a very simple illustration; I hope it is helpful.
I warmly and enthusiastically support the Bill and the intentions of the noble Baroness. I would like to say a lot more about a lot of other contributions, but I think your Lordships really want to bring this to an end, because we are focusing clearly on what the real issues are.
Lord Alton of Liverpool (CB)
My Lords, I congratulate my noble friend Lady O’Loan on bringing this timely Bill to your Lordships’ House and on her eloquent and persuasive introductory remarks. My unremunerated interests linked to various charities which work on these issues are declared in the register. I served as a member of the All-Party Parliamentary Pro-Life Group’s inquiry into freedom of conscience in abortion provision, which has been referred to during the course of this debate. The inquiry was admirably chaired by the Member of Parliament for Congleton, Fiona Bruce.
On Wednesday this week, I met Mary Doogan, one of the two midwives referred to by my noble friend and by the noble and learned Lord and others. The call of the midwife is an incredibly high calling. It is a call to bring new life into the world. To tell such women that they must facilitate the taking of the lives of babies in the womb or lose their jobs is not the hallmark of a liberal or tolerant society.
In the 18th century, the renowned German philosopher, Immanuel Kant, understood conscience as,
“an internal court in man”.
It is a core premise that conscience acts as an external constraint on human behaviour. Whether it is inspired by religious or secular belief is largely irrelevant. Conscience is not founded on whim or personal preference; rather, it provides meaningful conviction that allows people to structure their own ethical identity and exercise their judgment. It was in accordance with Kant’s dictum that the framers of the 1948 Universal Declaration of Human Rights, written as the world emerged from the horrors of the Second World War, understood conscience. Conscience features prominently in the document, with the very first article recognising that:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience”.
Both the Universal Declaration of Human Rights and the European Convention on Human Rights explicitly guarantee the right to freedom of conscience for all, and it has been recognised in every major human rights treaty since then. It was also recognised in another place and here during the debates in 1967 that formed the Abortion Act. It was David Steel, now the noble Lord, Lord Steel, who told the House of Commons:
“The Bill imposes no obligation on anyone to participate in an operation”,
and that:
“The Clause also gives nurses and hospital employees a clear right to opt out”.—[Official Report, Commons, 13/7/1967; col. 1318.]
The case of Mary Doogan shows how that assurance, which was given in sincerity and in the genuine belief that it would be implemented, has at least been diluted and watered down. While conscientious objection was specifically enshrined in Section 4 of the Act, in practice the report that we undertook over the last two years found that medical professionals are far too dependent on the individual attitudes and discretion of their personal line managers or colleagues. During the inquiry, evidence from the British Medical Association confirmed that some doctors had complained of being harassed and discriminated against specifically because of their conscientious objection to abortion. The inquiry also heard evidence on how career progression opportunities—a point that the noble Lord, Lord McColl of Dulwich, with so much experience in this field, made during his speech earlier today—particularly in the field of abstract obstetrics and gynaecology, had been limited for those wanting to exercise their conscience.
I was particularly struck by a piece of evidence from one of the country’s leading paediatricians, Professor John Wyatt. He told us:
“Over the last century there have been many startling and egregious cases in which the core moral commitments of medicine have been corrupted and violated because of state coercion exercised on physicians”.
The vast majority of evidence that we received accorded with what Professor Wyatt said to us and recognised the importance of conscience as a key part of what it means to live as a free and fulfilled individual in a diverse and democratic society.
My noble friend Lord Rowe-Beddoe referred to Dr Mary Neal, a senior lecturer in law at the University of Strathclyde. I met her earlier this week too. In her written evidence, she said:
“We should not expect someone who believes abortion to be seriously morally wrong to be willing to participate in it in any capacity, and conscience provisions should be drafted and interpreted so as to protect health care practitioners against any such expectations”.
At its core, the Bill is about the minority’s right to dissent from mainstream opinion and to resist compelled action. It prevents the abuse of a dominant position and is deeply concerned with the right of individual liberty. Most of the arguments against the Bill that have been advanced during today’s debate simply do not stand up to scrutiny. The Abortion Act already limits the scope of conscientious objection. If it were working in such a pernicious way as some have described in preventing people from participating in abortions, it really would not enable one abortion to take place every three minutes in this country, 20 every hour—that is, over 8 million since the passage of the legislation. So I do not believe that argument stacks up.
However, the state has a duty to safeguard the conscience of individual professionals, as well as providing an effective healthcare service. The denial of conscience is an attribute, indeed the hallmark, of an illiberal society because it is an act of coercion. A doctor, nurse or midwife is not a functionary or an automaton; as the father of a young doctor, I am acutely conscious of the high calling of a healer. Two and a half thousand years ago Hippocrates, the father of medicine, enunciated a revolutionary devotion to the preservation of human life. Here I agree with the noble Baroness, Lady Richardson: we are not compelled to go to heroic lengths to keep someone alive who would otherwise die. That is not at the core of palliative medicine, and her heartbreaking story is an example of bad medical practice. However, nor should we tell doctors that they have to give lethal injections to take life.
My noble friend’s Bill is consistent with the tradition of Hippocrates, who said, in a fundamental move away from more primitive medical traditions, that there would be prohibitions on abortion and euthanasia. He refused to accommodate those who believed that “care” and “kill” could be used as synonyms. Nor does my noble friend, and that is why I hope her Bill will receive a Second Reading in your Lordships’ House today.
Baroness Barker (LD)
My Lords, I declare an interest as the new chair of the All-Party Parliamentary Group on Sexual and Reproductive Health in the UK, a position that I have taken over from the noble Baroness, Lady Gould. I place on record my thanks to her for all the work that she has done during her time in that position.
In that capacity, I have had the great privilege of talking to my noble friend Lord Steel. He could not be here today but if he were then, like me, he would seek to vigorously oppose the Bill from the noble Baroness, Lady O’Loan. He would also have picked up the noble Lord, Lord Alton, on his partial quotation from 1967: what my noble friend went on to say was that conscientious objection was written into his Bill but with the proviso that no woman would be denied access to the services that would then become legal. He wanted to say to noble Lords today, had he been present: do not be fooled by this Bill. It would take us straight back to the period of the early 1960s, when practitioners such as the senior registrar in the West Midlands effectively denied women their legal rights.
I often talk to students about the contrasting systems of the US and this country when it comes to discussing and legislating on matters of morality and conscience. I draw a contrast with the US where, such is the level of religiosity in debate that no elected politician can go against the prevailing religious orthodoxy and therefore they do not, and matters of conscience and morality are litigated in the courts. We in the House of Lords do things rather differently: we bring in all shades of religious opinion and debate these matters extensively. I ask them to compare and contrast the two.
I think it is right that we have our system and that we engage in debates such as these. I therefore agree with the right reverend Prelate that it is important that we look at these matters in very informed and deliberative ways. I agree with him that it is perhaps time that we reviewed the 1967 Act; it was written 50 years ago and times have changed. Unlike him, I believe it is now too restrictive and wish to see it liberalised.
I want to address the issue of conscience. I listened very carefully to the speeches by the noble Baroness, Lady Eaton, and the noble Lord, Lord Elton. Someone reading our debate today might come away believing that it is only those who object to abortion who are holders of conscience and morality. I do not believe for a moment that is true. I remember talking to Lord Winstanley, a young doctor who helped my noble friend Lord Steel to take—
Lord Elton
Would the noble Baroness give way? I made it clear at the beginning that the question of whether you believe an act is right or wrong is absolutely immaterial; what matters is the effect on the person. I attribute no beliefs to anyone.
Baroness Barker
The point that I wish to make stems from exactly that. Noble Lords will remember that during the passage of the Marriage (Same Sex Couples) Act there was a proposal that registrars, who are public servants, should, according to their conscience, be permitted to deny services to people who would be married under that Act. The effect of that would have been that were people like me, and in this case the noble Lord, Lord Cashman, to turn up to a register office to register the death of our loved one, we would not be accorded the same treatment and dignity as any other person.
The noble Baroness, Lady Young, talked about the United States of America. The Bill is one example of a much larger movement in which people who oppose certain legislation on matters of what I would consider to be social progress use the issue of conscience as a proxy by which to undermine laws which are democratically passed. That is a serious and insidious development, and one that we in this House should strongly resist. This is not about the clarification of conscience, it is about the extension of people’s rights to opt out of provisions of laws which have been carefully considered and agreed in great detail in our democratic institutions.
The impact of the Bill is exactly what the noble Baroness, Lady O’Loan, sought to deny. She said that this is not about restricting access to services. It absolutely is. We already have examples of that. We have examples in the NHS of GPs who refuse to provide access to contraceptive services. There are boroughs in London where there is no provision. What happens in those circumstances? It is poor women and women who do not have the freedom or wherewithal to travel elsewhere to get those services who suffer.
This is a deeply pernicious Bill. I hope that, when we get the opportunity to do so, we will vote against it in such overwhelming numbers that we put an end to the arguments that lie behind it, which I believe are thoroughly disingenuous.
Lord Elton
Before the noble Baroness sits down at the end of a powerful and lucid speech, as she is sitting on the Front Bench, is she delivering the line of her party on the Bill or is she speaking personally?
Baroness Barker
I make it absolutely clear. As on all other Benches, we have a variety of beliefs on this subject, but what I can say in all clear conscience is that I represent the majority of my colleagues on these Benches.
Lord Swinfen (Con)
Perhaps the noble Baroness will answer one simple question to clarify what I think she said. Am I right in thinking that she said that a medical practitioner who had a conscientious objection to helping with an abortion would still have to help with an abortion if it was necessary? That is what I understood that she said.
Baroness Barker
For the avoidance of doubt, I agree with the statements made in the court judgment of 2016: that no practitioner should be compelled to take part in the hands-on offering of a procedure, but they cannot indirectly deny women access to treatment to which they are legally entitled.
Baroness Thornton (Lab)
My Lords, in many ways, the noble Lords, Lord Elton and Lord Singh of Wimbledon, gave the game away about this legislation. It is in fact in opposition to a whole range of legislation—on abortion rights, human fertilisation and embryology, the Equality Act and several others referred to by other noble Lords. When I read the Bill, the words, “wolf in sheep’s clothing”, came to my mind. I need from the outset to make the Labour Party’s position on this Private Member’s Bill clear. We will not, of course, oppose the Bill at Second Reading, but only because that is the custom and practice of this House. However, this proposal flies in the face of our public policy, and much of the legislation it seeks to change we put on the statute book or supported. I will lead from the Front Bench the opposition to the proposals it contains.
I agree with my noble friends Lady Young and Lord Cashman, the noble and learned Lord, Lord Brown, the noble Lord, Lord Dholakia, the noble Viscount, Lord Craigavon, the noble Baronesses, Lady Richardson—whom I commend for a moving and appropriate contribution—and Lady Meacher, and, of course, my friend the noble Baroness, Lady Barker.
I say to the right reverend Prelate the Bishop of Peterborough that the word I looked for in his contribution was “equality”. The reason I looked for that is because many of us in this House have struggled with how to reflect conscience and ensure equality. I ask him to reflect on that, because many of the proposals in the Bill will affect LGBT rights and the rights of other groups. Because he is wise in his ways, he needs to reflect on the fact that the Bill will restrict rights to abortion and other procedures.
It will dramatically extend the scope of conscientious objection, increasing the number of medical procedures to which it could apply under law, increasing the types of professions to which it would apply and expanding the activities which would be applicable, from abortion to IVF and the withdrawal of end-of-life care. The reason it is significant is that it represents the new front in the attempt to undermine our equality laws, to extend the number of areas where conscientious objection can be used to refuse to provide services. In this case, the extension proposed in the Bill is so radical that it has the potential to have a real impact on everything from obstetrics and gynaecology provision to geriatric care and care in chronic and terminal conditions.
Like other noble Lords, I believe that the reason the Bill is brought forward is because of the case of the Scottish midwives, who lost in the Supreme Court. They lost a case where they wanted the right to refuse to supervise staff who performed abortions or refer patients to staff who would be willing to participate. The noble and learned Baroness, Lady Hale, rejected that case, giving the judgment which has already been mentioned, so I will not repeat it, but which I think was wise.
I also agree with the noble Baroness, Lady Barker, that this Private Member’s Bill follows a trend we have seen in America with the introduction of state legislation to undermine LGBT and other equality laws by an increase of a so-called conscientious exemption for public employees providing services. We believe that the current provision of conscientious objections, which refer to the refusal to perform certain activities on moral or religious grounds, are balanced and work in practice. All the medical professional bodies support the legal provision of conscientious objection to allow healthcare professionals to practise in line with their personal beliefs, alongside the guidelines that make clear the obligations of an individual with a conscientious objection to ensure that their patient can access appropriate care.
I will not repeat what is in Section 4 of the Abortion Act 1967, to which many noble Lords referred, but it works. The Human Fertilisation and Embryology Act 1990, along the same lines, provides for individuals to opt out of providing fertility treatment, the storage of human eggs, sperm and embryos and research on early human embryos. Parliament did not have in mind, when it passed that legislation about the provision about health services, hospital managers who decide to offer abortion services, the administrators who decide how best that service can be organised, the caterers who provide patients with food and the cleaners who provide a safe and hygienic environment.
I thank the organisations who sent me many briefing materials, including the Library. However, I have to say that I did not think that the brief from the Library was complete or balanced, which is an issue that I have raised with the Library. Perhaps it is better if our extremely good, excellent and brilliant researchers stay out of this area when providing briefs for noble Lords, because it is dangerous territory for them to enter. That being said, they do an excellent job.
We believe that the current law and practice works, and the recent testing in the courts is further evidence that that is so. I hope that the Government will also be able to say that they believe that the current legal framework and practice works. This is the position that we support. This is the position that we will continue to support.
Baroness Chisholm of Owlpen (Con)
My Lords, I congratulate the noble Baroness, Lady O’Loan, on securing this Second Reading of her Bill, which aims to clarify the extent to which a medical practitioner with a conscientious objection may refrain from participating in certain activities relating to abortion care, assisted reproduction and fertility treatment, and withdrawal of life-sustaining treatment. As is usual with these sensitive matters, the Government are taking a neutral approach to the Bill.
As the noble Baroness, Lady O’Loan, and the right reverend Prelate the Bishop of Peterborough mentioned, it is of course right that medical practitioners and other health professionals should have their personal beliefs respected. As the noble Lord, Lord Dholakia, said, the right to object to participating in treatment is enshrined in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1990. As the noble Lord also mentioned, while medical practitioners are within their rights to refrain from participating in certain medical activities on the basis of conscientious objection, this should cause no detriment or barrier to the care patients are entitled to. Section 4 of the Abortion Act 1967 allows those with a conscientious objection to opt out of participating,
“in any treatment authorised by this Act”,
unless that treatment is immediately,
“necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman”.
The noble Baroness, Lady O’Loan, mentioned private clinics. Interestingly, two-thirds of abortions are carried out by the independent sector, where staff actively choose to work in abortion care.
The courts, including most recently the Supreme Court, have considered whether participation in treatment should include activities ancillary to the actual procedure, such as managing ward resources, supervising other staff and providing post-operative care to women on the ward. In December 2014, the Supreme Court held that “participate” should be construed narrowly and the conscientious objection provision should cover only those activities that involve actually taking part in the termination procedure. Section 38 of the Human Fertilisation and Embryology Act 1990 regulates the provision of certain fertility treatments, services and research involving use of human embryos. It already allows staff to withdraw from participation in an activity covered by the Act if they have a conscientious objection to it. However, similarly to the Abortion Act, that Act does not define participation. The department therefore relies on guidance issued to medical practitioners by regulatory bodies such as the General Medical Council. This helps ensure that rights of conscientious objection are exercised within the parameters set out by the current legislation and in line with the principles of good medical practice. In addition, each of the nine regulatory bodies that regulate health and care professionals in the UK has its own publication, setting out the standards, behaviour and conduct expected of the professionals on its register. The Act provides protection for all staff who feel unable to take part in an activity regulated by the Act to which they have a conscientious objection.
Life-sustaining medical treatment benefits the patient by restoring or maintaining health as far as possible. If, however, all suitable treatments fail or cease to provide benefit to the patient, they may ethically and legally be withheld or withdrawn and the focus of treatment changed to the relief of symptoms. As noble Lords know, in practice the decision to withhold or withdraw life-sustaining treatment is often very difficult. It is also very stressful for the patient’s family and the staff who have been looking after them. The noble Baroness, Lady Richardson of Calow, talked movingly about her experiences with the treatment of her husband. Guidance from the GMC states that doctors may withdraw from providing care if their beliefs about providing life-prolonging treatment lead them to object to complying with either a patient’s decision to refuse such treatment or a decision that providing such treatment is not of overall benefit to a patient who lacks capacity to decide. However, as the noble Baroness, Lady Meacher, mentioned, the guidance is also explicit that doctors must first ensure that arrangements have been made for another doctor to take over their role and that it is not acceptable to withdraw from a patient’s care if this would leave the patient or colleagues with nowhere to turn. The noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Dholakia, mentioned the importance of patients’ views for their end-of-life care. The Government’s commitment to everyone at the end of life is to focus on the perspective of the dying person and those important to them.
Before I end, I will answer a couple of questions raised during the debate. The right reverend Prelate the Bishop of Peterborough mentioned pharmacists. The General Pharmaceutical Council informed us that it is currently analysing responses to its recent consultation on religion, personal values and beliefs in delivering person-centred care. The GPC will then make a decision on any changes to standards for pharmacy professionals. My noble and learned friend Lord Mackay of Clashfern asked if there was data on the number of conscientious objectors. The data on the number of staff with these views is not held centrally.
As the noble Baroness, Lady Meacher, said, these are difficult and challenging issues. I have listened with interest to the range of views expressed today. I join noble Lords in paying tribute to the noble Baroness, Lady O’Loan, for bringing forward the Bill and for highlighting the complex issues surrounding conscientious objection. I have heard and taken note of all that noble Lords have said today. The department will want to reflect on the points raised. I thank her, and other noble Lords, for their contributions on this important issue.
Baroness O'Loan
My Lords, I thank all noble Lords who took part in this debate, which has been interesting and, as I expected, challenging. The noble Baronesses, Lady Barker and Lady Thornton, raised what the noble Lord, Lord Steel, said. At the very end of Report, when the House of Commons debated possible amendments to the conscience clause, the noble Lord—then Mr David Steel MP—said:
“It also gives nurses and hospital employees a clear right to opt out”.—[Official Report, Commons, 13/7/1967; col. 1318.]
First, I will say a few words about what this Bill does not do. It is not a game; this is a very serious issue. The Bill does not remove patient decision-making in any respect. I reassure the noble Lord, Lord Dholakia, and others that it is not about abandoning patients or their families. It is not about causing them to suffer. It is not about forcing people to be treated against their will, as the noble Lord, Lord Steel, said. The terrible experience of the noble Baroness, Lady Richardson, with whom the whole House would want to express sympathy, was bad medical practice. It is not about restricting access to abortion. It is not about allowing patients to force medical professionals to do anything. It is not about seeking to reject or deny the welfare and wishes of patients. It is not about depriving people of the right to reject treatment or refuse consent to it. It is not about the merits or otherwise of abortion, fertility treatment or withdrawal of treatment at the end of life. It would not have a negative effect on hospice care.
I watched my brother-in-law in the hours before his death from motor neurone disease. He was incapable of moving, pondering at length on the proposed next treatment, before he accepted what was suggested, having satisfied himself that it was in accordance with his conscience. He died very shortly afterwards. This Bill would not deny others that right. It would provide a right of conscientious objection to those who genuinely object to engaging in particular medical situations. It is about highlighting the fact that the responsibility to provide National Health Service care is a responsibility of the health service, not the individual employee. It is about according statutory protection—not guidance, not administrative protection—to staff who do not have it, because the right to conscientious objection is not a universal right accorded to all medical practitioners by statute under the Abortion Act. It does not protect, for example, GPs and pharmacists.
The Bill is about allowing medical practitioners to act in accordance with their conscience. It is about recognising that people who have a fundamental objection to doing something should not be forced to arrange others to do it. It is about making the health service inclusive so that all medical practitioners can take their rightful place in the discipline of their choice rather than being restricted to areas in which they can work or being forced to leave the United Kingdom. As the noble and learned Lord, Lord Mackay, said, the Bill is about asserting that it is not necessary or right to force people to do things that they hold to be wrong. It is about legislating to ensure that we have the best possible health service, staffed by the best possible medical practitioners, providing the service in accordance with the wishes of the patient and capable of accommodating the conscientious objection of medical practitioners.
There seems a slight disconnect in the suggestion that if the Bill were passed it would be impossible to provide services to people. It would be interesting to know how many conscientious objections there are. However, the evidence suggests that the Bill would not deprive people of treatment. Therefore, I ask the House to give it a Second Reading.
Conscientious Objection (Medical Activities) Bill [HL]
Friday 23rd March 2018
(6 years, 8 months ago)
Lords ChamberRead Full debate Conscientious Objection (Medical Activities) 2017-19 Read Hansard Text Amendment Paper: HL Bill 14-I Marshalled list for Committee (PDF, 75KB) - (21 Mar 2018)
Lord Steel of Aikwood
Lord Steel of Aikwood (LD)
My Lords, Members will realise that Amendment 1 and the amendments associated with it in the grouping go to the heart of the argument in this Bill. I am sorry that I was not able to be here for the debate at Second Reading or I would have spoken then, but it might be helpful to the Committee if I give a brief outline of how the conscience clause arose in the first place. I say that because most noble Lords believe that the Medical Termination of Pregnancy Bill, as it then was, began under me in the House of Commons. That is not the case. That Bill was passed by this House in the mid-1960s. It went through all its stages here and was waiting for a Member to pick it up in the House of Commons.
In the meantime, going back as far as 1939, there had been an interdepartmental committee of inquiry, involving the Department of Health and the Home Office under the late Sir Norman Birkett KC, which argued that the abortion law should be changed. My Bill, which was passed by this House under the auspices of Lord Silkin, was in fact the sixth attempt in the House of Commons to change the law on abortion. The others had all failed not through lack of support but through lack of time. I drew the third place in the ballot, which meant that I had the time to introduce the Bill.
The first thing I want to say is that it is wrong that issues of this complexity and seriousness should be left to the lottery, which is what it is, of the annual ballot for Private Member’s Bills in the House of Commons; it is not the right way to proceed. Once an issue like this comes before both Houses, the Government should provide the necessary time, both Houses should of course have a free vote, and we should proceed in that way. The same thing happened with my Bill on retirement. It would never have got through the Commons had it not been for a Conservative MP who picked it up.
The Bill I presented and which was carried at Second Reading by a large free vote was the Bill that came from this House. However, during the Committee stage many amendments were made to the Bill, largely by myself. Most of them had nothing to do with this Bill and I shall not go into them, but the important one was the conscience clause. How did that come about? Quite simply, I had in my constituency the leading Catholic seminary known as St Andrew’s College, Drygrange. Its representatives were naturally a bit upset that their MP was introducing a Bill to which they were so strongly opposed, so they asked me to speak to them. I think that I went twice, if not three times, for discussions with them. It was they who suggested that in view of the strong opposition to the Bill, there should be a conscience clause, given that under the new legislation no person was required to undergo an abortion, so nor should any person be required to participate in an abortion. I went to meet them armed with an important document which had been published by the Board of Moral and Social Responsibility of the Church of England, entitled Abortion: An Ethical Discussion. Unfortunately it is now out of date and out of print, but perhaps I may quote two short extracts from it.
In referring back to the fact that Catholic tradition had changed over the centuries—from the moment of animation to the moment of conception—the report argued:
“It cannot be maintained, however, that this ‘absolutist’ position has ever commanded, or commands now, general acceptance in the Christian conscience … If we were to accept the absolutist principle and declare the foetus to be in all circumstances inviolable, this pamphlet would end at this point. There would be really nothing more to be said: there could be no further discussion, in terms of Christian ethics, of the problems attending the complicated pregnancy … and a Christian committee could have nothing to say to the legislature except to advocate a total prohibition of all induced abortion. Such a determination would be, in fact, a novel departure from the Christian moral tradition”.
That was the argument I put to the college representatives, but I accept their argument that it was wrong, in passing the legislation, to inflict responsibility on those who strongly objected to it. I came back from those discussions to talk with other members of the committee, including the late Norman St John-Stevas, who was a leading opponent of the Bill. We worked together to introduce the conscience clause as it now stands in the law.
Then, a few years ago, two midwives who had reached a senior position in Glasgow objected to being involved in the administration of abortion in the hospital. The health board took them to court and argued that the conscience clause should not be extended to the extent they were arguing for. The case went up to the Supreme Court, which made it quite clear that it supported the original intention of the Act. Its judgment said:
“Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital … the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved”.
That is why I believe the Bill is wrong in principle. It seeks to reverse the Supreme Court’s decision, which is upholding the law as it was passed by this Parliament. I beg to move.
Baroness Thornton (Lab)
My Lords, my name is added to this group of amendments. I intend to speak very briefly to say that the purpose of the amendments tabled by the noble Lord, Lord Steel, is to redefine in the Bill what constitutes participation in an activity to bring it into line with the existing law. This would mean that healthcare professionals could opt out of hands-on participation, such as performing a surgical abortion or dispensing abortion pills, but not out of things such as organising a staff rota where some of the staff on the rota might be taking part in abortion services. This is because we support the right of healthcare professionals to opt out of participating in a hands-on capacity. The noble Lord explained the history, roots and the discussions that led to this and why it has been maintained for so many years as the acceptable and sensible way forward. It is not just my view or that of these Benches. It is also supported by medical bodies such as the British Medical Association, the Royal College of Obstetricians and Gynaecologists and many other organisations, including the British Pregnancy Advisory Service. I will leave my remarks at that while we have this debate.
Lord Winston (Lab)
Does my noble friend not agree that there might be some fellows of the Royal College of Obstetricians and Gynaecologists who do not agree with the briefing material that the council has sent to the House of Lords?
Baroness Thornton
That is the point, in a way, of the current situation: it allows people to disagree and to not have to participate in hands-on terminations.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too support the amendment and the obvious corollary amendments later, which are designed to confine the conscience exemption to hands-on participation, as explained in the Supreme Court decision to which the noble Lord, Lord Steel of Aikwood, referred—the Doogan case, which came from Scotland. As amended in the proposed way, the Bill would precisely give effect to that unanimous decision of the Supreme Court. It was a single, convincing judgment from the noble and learned Baroness, Lady Hale, who is now, of course, the President of that court. That decision is the last and most authoritative word on the true interpretation of Section 4 of the 1967 Act, the conscientious objection clause, which has now stood for half a century.
Although an article by the noble Baroness, Lady O’Loan, in The House magazine published shortly before Second Reading suggested that the Doogan decision had in fact narrowed that statutory exemption and that therefore there should now be a wider interpretation in order to “re-establish” or “reaffirm” what Parliament enacted 50 years ago, that is not so. As I have no doubt the noble and learned Lord, Lord Mackay of Clashfern, would confirm, Doogan, on the law as it currently stands, was correctly decided and what this Bill now seeks to do, therefore, is to persuade Parliament to change the law and to give an altogether wider reach to the previous conscience clause than has hitherto been thought appropriate.
Baroness O’Loan (CB)
I hesitate to interrupt the noble and learned Lord, but will he confirm that abortion is not always lawful? Abortion is lawful only in those situations in which it was decriminalised under the Abortion Act 1967.
Lord Brown of Eaton-under-Heywood
I absolutely accept that of course that is right. I was putting it in that shorthand way simply to make the point. Of course, everything that I say in this respect plainly applies only to lawful abortion under the Act. It is in that context that we are debating the question. I suggest in parenthesis that it is intolerable that, for example, certain abortion clinics are from time to time surrounded by protestors who harass and intimidate those who are attending for—let me insert the word—lawful treatment by termination.
I return briefly to the judgment in Doogan, which explains, at paragraph 11, that participation means actually taking part in the process. Following a lengthy section of the judgment, which I will not weary the House with but which closely analyses the competing arguments on the case, the noble and learned Baroness, Lady Hale, returns to the all-important question at paragraph 38, the paragraph that the noble Lord, Lord Steel, quoted. I will just give a slightly fuller quotation, because he left out one or two bits that I think are worth reading into the record. He read this bit but I will read on. Paragraph 38 says:
“It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.
That is the theme taken up by the shorthand encapsulation of this judgment in Amendment 1 and a certain amendment which will follow.
In the very next paragraph of the judgment, there then follows an enormously helpful and detailed exegesis of that approach—a test of the principle against what was in that decision. It is an agreed list of 13 tasks included in the role of the two petitioners in that case, as labour ward co-ordinators. Some of those tasks were held to be covered by the conscience clause and others were held not to be. Some were specifically held to be covered but to an explicitly defined extent.
It is tempting to read out the entire paragraph and to invite a clear indication from those who resist these amendments as to where they are suggested to be too restrictive of the exemption provision. But in the interests of brevity I will simply quote three of the shorter sub-paragraphs, which set out certain of the agreed tasks. The first task referred to,
“management of resources within the Labour Ward, including taking telephone calls from the Fetal Medicine Unit to arrange medical terminations of pregnancy; this is not covered by the conscience clause as interpreted above”.
The sixth task referred to is,
“responding to requests for assistance, including responding to the nurse call system and the emergency pull; responding by itself is not covered; it would depend upon the assistance requested whether it was part of the treatment for a termination”.
Finally, there is sub-paragraph 11—no, perhaps sub-paragraph 10, as it is shorter. It refers to:
“communicating with other professionals, eg paging anaesthetists; this is a managerial task which is not covered by the conscience clause as interpreted above”.
If it is unamended, the Bill would provide exemption from all these tasks by those in the position of the two Doogan petitioners.
Lord Alton of Liverpool (CB)
I wonder whether I may press the noble and learned Lord on the specific question of exemption. While I share some of his concerns that a list that included hospital porters and so on would be exhaustive, was never envisaged and is not what I think the sponsor of the Bill would wish to see, where does the noble and learned Lord stand on the question of Mary Doogan and whether she should have the right to opt out of participating, even through facilitation through lists rather than in a hands-on way as the amendment states? Where would he stand on something as specific as that case? Notwithstanding whether it was lawful or not, does he think that the law should be changed to provide reasonable accommodation for someone such as Mary Doogan?
Lord Brown of Eaton-under-Heywood
With respect, I stand precisely with the Supreme Court. I think those 13 tasks were analysed and responded to by the court in precisely the right place. Of course these borderlines are not easy to draw, but the court went to infinite pains to draw them as precisely as possible, consistent with the proper exercise of conscience if you are what was there described as involved in a hands-on participatory role, but not otherwise. It is simply an ever-widening sphere of activity ever further from the actual direct termination if you simply throw the exemption open to anybody on an administrative or managerial basis. I stand with the Supreme Court; it is a decision to which I would happily have subscribed.
What is now sought by this Bill is a significant, if necessarily worryingly imprecise, enlargement of the scope of the conscience clause. I shall add only this. As I observed at Second Reading, two responsible and respected bodies, the Royal College of Midwives and the British Pregnancy Advisory Service intervened in the Supreme Court proceedings in the Doogan case, opposed the petitioners and supported the opposite view. They opposed giving a broader scope to the right of conscientious objection. They suggested that to do so put at risk the provision of a safe and accessible abortion service and could put at risk the employment of those with less extreme conscientious objections than the two petitioners. Be that as it may, it certainly must not be assumed that the existing law risks a diminution of the obviously necessary workforce involved in giving effect to lawful abortion rights.
I concentrated my observations on Clause 1(1)(c), on termination, but in truth they apply similarly across the entire scope of the Bill. I therefore strongly urge the Committee to accept Amendment 1.
Lord Turnberg (Lab)
My Lords, I strongly support the amendments in the name of the noble Lord, Lord Steel, and others. I apologise to the Committee for not being here for Second Reading for various reasons. I was almost prevented from coming today, but I managed to struggle here. I have the utmost respect for the noble Baroness, Lady O’Loan, and for the reasons behind her Bill, but when I examined it I was immediately struck by what seems to be a conflict between, on the one hand, putting a patient’s best interests first and, on the other, the doctor’s conscientious objection to providing certain treatments. I should perhaps explain how I came to that concern and why I support these amendments by expressing my interests.
I was in the distant past dean of the faculty of medicine in Manchester—a faculty, incidentally, that included nursing and dentistry as well as medicine—and then president of the Royal College of Physicians. In both roles, I was at pains to instil high standards of care in our students and trainees, but I must say that I was brought up short later when I became president of the Medical Protection Society. In that role, I had to face doctors who had failed their patients in one way or another—quite a shock to the system after what I had been trying to do until then to ensure ethical and moral behaviour, focusing heavily on putting the patient at the centre of everything that we do as doctors.
Baroness O'Loan
I may have misunderstood the noble Lord, but I think that he said that the Bill would enable a doctor who will not engage with a particular process to prevent somebody else from engaging in that process. Is that what the noble Lord said? Could he explain to me why he said it, if so, so that I can understand better?
Lord Turnberg
The wording of the Bill makes sure that a doctor who has conscientious objections to a procedure has a responsibility under the Bill to prevent others being involved in such procedures, and in their training and supervision, which makes it very difficult for someone working with them to carry out such procedures.
Baroness O'Loan
Can I ask the noble Lord to refer me to the section of the Bill that does that, because it is not the intention of the Bill, and I actually do not believe that it is the effect?
Lord Turnberg
I can. Clause 1(1)(c) refers to:
“No medical practitioner with a conscientious objection to participating in … any activity … required to prepare for, support or perform termination of pregnancy”,
in this instance.
Viscount Craigavon (CB)
My Lords, I spoke at Second Reading against this Bill, very much in support of the result of the judgment of the noble and learned Baroness, Lady Hale. From what she says towards the end of her judgment, we are not tied to the literal meaning of “hands on”. I also refer to the article on this Bill in the House magazine by the noble Baroness, Lady O’Loan, in the week of the Second Reading, where she employed the apparently simple phrase the “taking of human life”. In terms of realising that we all do not share our definitions of the same starting point and end point of life, I believe that in this field we do not all have the same premises to anchor our consciences. To the extent that this Bill is built upon a particular version of what is meant by “human life”, we are bound to end up with differing conclusions and disagreements.
As has been made clear by the noble and learned Baroness, Lady Hale, at the end she enlarged on her “hands on” phrase with her examination and analysis of the 13 tasks of the petitioners’ role. I believe that is the best definition of the phrase that we need, which has been very fully covered by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He, like me, regards that as an anchor for interpreting the current law.
To go back to a much earlier part of the noble and learned Baroness’s judgment, to paragraph 11, she went back in time to help to show how the law had arrived at the present situation, and how “participation” had come to be defined. The noble and learned Lord, Lord Brown, gave details of the case that I was going to mention—the 1989 case, in the House of Lords. The noble and learned Baroness interestingly said that it was,
“a case which all parties accept was rightly decided”,
the “all parties” being the parties before her in that case.
I shall not give the details of the Janaway occupation, which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave, but it was decided then that participating meant actually taking part in the process of terminating the pregnancy. The noble and learned Baroness, Lady Hale, added that it did not have the extended meaning given to participation in the criminal law, as the noble and learned Lord, Lord Brown, again enlarged on. So that submission failed and, apparently, all parties to the present case agreed it was rightly decided, as I said.
I mention all this detail in order to ask whether we are in danger, by this Bill, of having to reverse what was decided in 1989, or even earlier. The Bill is trying to solve very complex problems by the very heavy imposition of a statute law that is quite unsuitable and insensitive for what it is trying to achieve. When we come to Amendment 15 it will be seen how much the weight of this statute law proposal would need to be softened by a more balanced and humane approach. For the moment, I fully support Amendments 1 and 3.
Lord Cashman (Lab)
My Lords, I support Amendment 1, in the name of the noble Lord, Lord Steel, and the other amendments in the group. I will restate what I said at Second Reading, so that there is absolutely no doubt. I completely respect conscientious objection—religious and non-religious. I respect and defend the right to freedom of religion and belief, but not the right to impose them upon others who do not share them and, by so doing, diminish the rights and legal choices of others. It is always a joy to refer to the comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whom I absolutely agree. This is an attempt to rewrite the law in the light of the Supreme Court judgment delivered by the noble and learned Baroness, Lady Hale, in the Greater Glasgow Health Board v Doogan.
If the Bill were to become law unamended, we would see conscientious objection so widened beyond the wise judgment of the noble and learned Baroness as to make certain services, such as IVF treatment, end-of-life care and abortions, difficult to access and sustain nationally. We would witness the imposition of belief to curtail the legal choices and options of others. I support these amendments because they would reinforce existing law. As has already been said, conscientious objection is clearly laid out in statute, and has a clear interpretation in law. This is that no person shall be under a duty to participate in a “hands-on” capacity in the termination of pregnancy, except in a clinical emergency. This definition is long established, supported by medical colleges and professional organisations as well as organisations such as the British Pregnancy Advisory Service. There is no convincing, independent, impartial evidence to indicate that it is operating poorly.
Therefore, these amendments seek to retain the existing scope of conscientious objection, which is already in legislation. It is in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1980. It is worth restating that the Abortion Act 1967 says that,
“no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection”,
but provides an exception for termination,
“to save the life or to prevent grave permanent injury to the physical or mental health”,
of the woman. The interpretation of this provision is found in the 2014 Supreme Court judgment in Doogan. That judgment absolutely upholds the concept of “hands on”. The noble and learned Lord, Lord Brown, has already gone into the details of that judgment.
In conclusion, the current law effectively balances rights. Conscientious objection must seek to balance the rights of healthcare professionals to act within their own ethical principles and the rights of patients to access legal medical care. The support of professional bodies and organisations for the principle of conscientious objection makes it clear that healthcare professionals are not expected to take a hands-on role in terminations of pregnancy, IVF or end-of-life care, which I will come on to when we debate later amendments. At the same time, patients must have the ability to exercise their rights to access legal healthcare. Conscientious objection cannot be allowed to undermine the rights of women, and others, to access services.
Lord Mackay of Clashfern (Con)
My Lords, I want to speak in very general terms in relation to Amendment 1 by the noble Lord, Lord Steel. As the noble Lord explained, in the Act that he ultimately had the responsibility for leading, it is quite plain that conscientious objection in the area of abortion is recognised and protected. The question really is: what is the extent to which that should be recognised? I should perhaps say that I am an honorary fellow of the Royal College of Obstetricians and Gynaecologists—though, needless to say, I have not sought to put it into practice in any sense.
I have of course been in this area of responsibility for statutory provision, in particular in relation to the Human Fertilisation and Embryology Act 1990. Your Lordships who are old enough to remember those proceedings will also remember that the Government decided that, for most of the issues that were of significance under that Bill, there should be a free vote. The Bill started in the House of Lords. One key question that needed to be decided, in an open vote—not compulsory, not whipped or anything of that sort—was to what extent research on embryos should be allowed. There was general agreement that, at least up to the first 14 days after conception, matters were not such that there was really a human life involved. It was certainly possible to take the view that, from 14 days onwards, a human life was involved and that, as life developed, ultimately there was hope that there would be a fully developed, healthy child. The dispute, which was very lively in this House, was whether research should be allowed on embryos before that happened. Ultimately, the vote was in favour of allowing research on embryos. The Bill started, as I said, in the House of Lords, and I was extremely glad the vote went that way, and with a fairly substantial majority.
However, the Bill of course had to go through the House of Commons—again with a free vote, naturally—and I had to hold my breath as to what might happen when the Bill arrived there. There was a strong lobby against any kind of embryonic research; indeed, I know some people who are still of that point of view. Anyway, it went to the House of Commons and the thing that frightened me very much was that it was agreed by parliamentary counsel that the scope of the Bill allowed debate on abortion. With free votes around, noble Lords can understand my anticipation that matters might have become extremely difficult. The debates turned out much better in their result than I had feared. I did not really know what the attitude in the Commons would be, but I was afraid that they might diverge from that of the House of Lords. Fortunately, on both matters, these votes produced the same result. Therefore, I do not come to this Bill without experience of trying to deal with this matter.
On another aspect of this matter, I had the honour of originally nominating as a judge the noble and learned Baroness, Lady Hale, as she now is. I regard the point of view which I advocated as fully vindicated by what has happened. It has to be said that the Supreme Court interpreted the law that had been laid down by statute. That is the job of the courts, not to make new law where there is a clear statutory law binding the situation. Its judgment is a clear and emphatic interpretation of the law as it has been.
The difficulty for me—I make it clear that it is a difficulty—is the nature of the objection that most people who have conscientious objection have to the activity of abortion. I contacted one of the authorities that have been in touch with us on the Bill and I have the impression that the number of practitioners who have conscientious objection is not huge. There is not too much in the way of statistics to back up one view or the other, but that is the impression I have in trying to understand what the position is. I do not want to take up too much time looking at the other areas where this Bill deals with conscientious objection, but in relation to abortion the conscientious objection is that the abortion operation destroys a human life. If you really believe that and if that is your conscientious objection, it is difficult to be involved in anything which promotes that. You do not want to kill people. That is the sort of point that the noble Lord, Lord Alton, made at Second Reading, to which my noble and learned friend—he is certainly my noble and learned friend—Lord Brown of Eaton-under-Heywood referred. However, that is the difficulty I have: recognising what the real conscientious objection is and giving effect to it.
I understand the arguments. The noble Lord, Lord Cashman, stated very precisely and correctly what freedom of religion and freedom of conscience in this country are. They include respect for the rights and freedoms of others. Therefore, it is difficult to see how this measure can be introduced in the ordinary administration of the National Health Service. If that is your conscientious objection, it extends beyond having a hands-on interest in the matter. I understand completely that if it extends beyond that, it will have an effect on the administration of the National Health Service.
How do you recognise the real objection, not somebody else’s formulation of it, but the people who have this objection? I think I am right in saying that that is basically what they believe. It is very difficult to see why they should be involved in anything that promotes what they object to. I have thought hard about this issue. The words that are used to expand it are difficult and some of them are stretching. I wonder whether the amendment proposed by the noble Lord, Lord Winston, in that connection might deal with that matter. If you have a very broad objection on the basis that I have said, it may be difficult to fit you into the system. There is a balance in this. If the people making the relevant appointments know what your objection is, they can take account of it in determining whether you are suitable to be fitted into the system to do a particular job. There will be jobs that are very close to the killing that they think is happening, and those that are more remote from it. It is difficult to draw that line exactly.
That is why a solution may be Amendment 25, in the name of the noble Lord, Lord Winston, which would mean that when you are seeking a job you would tell people what your conscientious objection is and what it extends to. An objection to that is that it discriminates against people who have a conscientious objection, and I can quite understand that too. But on the other hand, it seems that some way of limiting the interference with the administration is required to be found. That is what this Committee may be able to do. I have thought myself about what amendment I might put down, but I fear that I am not wise enough to have thought exactly about how you would frame it. Therefore I was comforted by the way the noble Lord, Lord Winston, would do it, finding out when you make an appointment whether the person with this kind of objection can be fitted into that appointment. I have not so far thought of anything better than that, and I will be glad in due course to hear what the noble Lord, Lord Winston, has to say about that. I have had considerable experience of his skills in this area from my history of involvement in this matter.
It is for us to do our best to try to accommodate the real conscientious objection that exists here consistently with proper administration for the health service. That has been well expressed by the noble Lord, Lord Cashman, who I think wants to say something.
Lord Cashman
I wanted to develop the noble and learned Lord’s theme of recognising the objection then allowing someone else in the chain—in the pool of services—to take that on. However, Clause 1(2) says that:
“For the purposes of subsection (1) … ‘participating in an activity’ includes any supervision, delegation, planning or supporting of staff”,
so that would prohibit the very approach the noble and learned Lord has outlined. In addition, not that I belong to any religious group at all, but Buddhists approach these issues with the concept of right belief, right livelihood.
Baroness Thornton
My Lords, to add to that, in the debate at Second Reading, the noble and learned Lord suggested that there need to be amendments to the Bill, but the movers of the Bill have not brought forward any of those amendments to allow us to have that discussion.
Lord Mackay of Clashfern
I was looking for help in this area from people who know better than me about administration, because I have never participated in the administration of the National Health Service, and I am thankful that I was able to find some other employment. The noble Lord, Lord Winston, has proposed an amendment which—subject to the objections I mentioned, that you would discriminate against people with a conscientious objection—is a way of fitting this into the administration. For example, they may think that the only way you can deal with this is to have the person at a certain grade, but one of the things about conscience is that you must be prepared to make sacrifices to secure your conscientious objection. I do not say for a minute that I want to justify any discrimination on the ground of conscience, but this is not discrimination. It is trying to fit the system to accommodate, so far as possible, the real objection people have. It is not just an objection to being hands-on; they are thinking about killing human life. I think all of us would think, if that idea were correct, that that was a very dangerous operation to have regard to.
Baroness Thornton
I take exception to that idea. There are people in this Chamber who do not agree with that definition of killing human life at that stage of an embryo’s growth.
Lord Mackay of Clashfern
I am not saying that this is right; I am trying to describe what I believe to be the conscientious objection. I am not saying that it is proper. I have not applied for the health service, unfortunately, so I do not need to say what the extent of my conscientious objection would be, but there is no doubt in my mind that that is the nature of the conscientious objection, although people may have slightly different views about how far it extends. That is why the suggestion of the noble Lord, Lord Winston—I acknowledge his wisdom—is the best way forward, subject of course to making sure that it was used not in a discriminatory way but in trying to accommodate the full extent of the objection within the framework of the administration of the health service.
Lord Alton of Liverpool
Does the noble and learned Lord accept, though, that the narrow case of Mary Doogan and the midwives in Scotland—she had after all been involved in more than 5,000 live births, bringing children into the world—illustrates what could never have been in the minds of legislators in 1967, as one can see in the Hansard of that period, and how much things have changed in the intervening years? That is not just about changes in attitude and culture; to pick up the point that the noble Baroness just made to the noble and learned Lord, there are those among us who believe that life begins at conception and that the science is right, and therefore that the law is right in saying that, for instance, as he referred to earlier, only for the first 14 days can experiments take place on the human embryo. That must be 14 days after something, and the law states that explicitly. That is not an unreasonable position, although I accept that these are contested positions. How therefore do we find, in a society where we respect difference, that there can be contested positions without discrimination falling on those who carry out those contests?
Lord Mackay of Clashfern
That is why probably the best solution that I have seen so far is to try to accommodate a contract on which you enter such conscientious objections as you have. I can see that that may limit the opportunities within the health service that a person with a conscientious objection has, but then that may be part of what you have to do.
Lord Alton of Liverpool
Does the noble and learned Lord therefore think it is a good situation for us to be in that, for instance, people who have religious views or who are atheists and are opposed to taking the life of an unborn child in the womb are by and large pretty well excluded now from gynaecology and obstetrics? The noble Lord, Lord Winston, says from a sedentary position that that is not true. If he can give an example to me of, for instance, people who hold deeply committed Christian evangelical views or who are committed Roman Catholics or, for instance, Orthodox Jews who would support, for instance, the taking of life up to birth, as the law now allows since 1990 in the case of Down’s syndrome, I would be surprised, but I would be interested to hear those names.
Lord Winston
I would like to correct that impression, if I may. I hope it might be useful if I might still be able to speak in due course about the amendments that I tabled, but not at this stage.
I cite as an example my own unit, and this situation was not because I was the head of it. There were a number of people with very orthodox religious views from three or four different faiths, including Jews and Catholics, some of whom were involved with in vitro fertilisation at different levels. We could accommodate those because we had the staff to do so. I am not convinced that, in the field of obstetrics and gynaecology, the health service has been inimical to people who are orthodox Catholics.
Lord Brennan (Lab)
The present Bill seeks to introduce a restatement of the law concerning conscientious objection. As far as I am aware, there has been no specific Bill in Parliament with a title such as this, even though it is restricted to medical practice. Conscientious objection springs from conscience—the moral sense of right and wrong—and it is a principle of human rights recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the European Charter of Fundamental Rights. For 70-odd years, we have regarded this as a basic human right, not an excepted privilege from the norm.
The question for the Committee is whether it is appropriate in principle to treat conscientious objection in a narrow test or in a wider test. The Bill advocates a wider test than that which has gone before. However, because it does so and because what went before has been said to be a narrow test, the Committee has to decide what the present principles should be in terms of tests. We are here not to vindicate the judgment of the Supreme Court but to exercise legislative judgment about what is fair and reasonable in applying human rights in our society.
Doogan was specifically about the relationship between Sections 1 and 4 of the Abortion Act 1967. Was the conscientious objection provision in Section 4 consistent in its scope with what was envisaged in Section 1? This Bill puts that aside. It effectively replaces Section 4 of the Abortion Act and, if necessary, on Report that section can be repealed by an amendment to this Bill. So we are not rehearsing history here; we are establishing what is right for the future.
In the judgment of the noble and learned Baroness, Lady Hale, agreed to by the other judges, Doogan expressly declined to look in detail at the Human Rights Act. It was a decision based on the co-extensiveness of parts of the statute. It does not dictate what this House should or should not do.
What should we do? First, Article 9 of the Human Rights Act, which is now part of our legislative framework, applies to our deliberations. Article 9 expressly enacts a freedom of belief, religion and conscience. It is not a sideline addition; it figures in all these declarations. What is meant by conscience?
Lord Brown of Eaton-under-Heywood
Does the noble Lord, whom I would be happy to call my noble friend, agree that in the case of Doogan the court looked at the Article 9 point? It dealt with that. Alas, I have given my copy of the law report to Hansard, but I am sure that he is aware of the decision and accepts that the court looked at Article 9.
Lord Brennan
I read the Doogan judgment with equal care to my noble and learned friend Lord Brown, but the fact is that here we are considering a test which was not considered in Doogan. It is different wording and a different context of statue. The point that I was making a moment ago was that Article 9 creates a right to exercise conscience.
Article 9.2—I invite your Lordships to listen carefully—says that that right prevails unless it is,
“necessary in a democratic society”,
to introduce limitations for specific reasons, one of which is the protection of the rights of others. I heard nothing in the Second Reading debate to evidence the fact that it is “necessary” to limit this test for conscientious objection. We are dealing with evidence, not policy opinion.
Let us compare the House of Lords exercising its legislative function with the Supreme Court. It specifically declined to decide between wider and narrower tests on the basis of societal interest and the supposed threat of one side or the other, because, it said, it would be speculation. The amendments, in effect, invite us to speculate that, without them, the rights of others would suffer to such an extent that we would have to change the law. That is a very tough hurdle to overcome. If there is no evidence before the House of Lords, and in the debate so far there has not been—
Baroness Thornton (Lab)
I thank my noble friend for giving way. At Second Reading, the noble Baroness, Lady O’Loan, mentioned evidence several times but did not actually tell us what that evidence was. So I am unclear as to what the evidence is that is being prayed in aid of in this private Member’s Bill. In fact, my noble friend has just made a statement about the restriction of rights, but the amendments are about retaining the situation as it is at the moment, which guarantees certain rights and provides a balance.
Lord Brennan
I respect my noble friend’s opinion. The point I am making is that we are not here talking about a balance between different rights. We are talking about the restriction of one set of rights in favour of another because it is “necessary”. But how is it necessary to reject this legislation in favour of the past test?
Let me turn for a moment to the question of responsibility. When I used the phrase “the moral sense of what is right and wrong”, it bespeaks the exercise of responsibility through conscience. The narrow test that is proposed—hands-on against hands-off—does not appear to be conscience based but proximity based. Where is it reasonable to draw the line and upon what principle do we draw it? If it is proximity, where does the moral sense of conscience fall away? Does it fall away because you are lower down the supply chain in the treatment? Let us compare medical abortion to a surgical abortion. Is the pharmacist who draws up the drugs outside the responsibility list? Is the person who brings the drug from him or her to the treatment room to give to the patient in or out of the system? Is it only the person who gives the drug to the patient? Many abortions are of that kind—abortifacient. The surgical abortion, which you understandably think of first, is a different exercise. This Bill covers both.
I appreciate from the speeches that have gone before that I am putting forward a different proposition from that which was feted by anyone at Second Reading. To pass this Bill we have to obey the Human Rights Act. To obey the Human Rights Act, we have to think objectively on the basis of adequate material. Without it, the right of conscience should not be prescribed by law as we would be required to do under the Human Rights Act. Moral responsibility rarely comes before us to consider. It is all a question of balancing our view against the conscience-holder’s view. It is what is right in our legislative regime.
I regret that I was not able to attend Second Reading. I admire the scope of the speeches that were made, particularly that of the noble and learned Lord, Lord Mackay of Clashfern, whose commitment to reason and reasonableness are of great value to this House, particularly on moral issues. He was right when he said that we should not make the staff involved in this kind of process do that which is contrary to their conscience and belief.
The Lord Bishop of Peterborough
My Lords, I also spoke at Second Reading. I spoke then in fairly general terms about conscience and the importance of conscience. I may be expected now to speak from a specifically religious point of view, but I do not want to do that; I want to speak more broadly again about conscience and human rights, but specifically in the areas of these amendments. I am very grateful for what I have just heard from the noble Lord, Lord Brennan, who I believe puts some of the conscience questions very clearly and helpfully and in a new way for this House to hear. That eloquence is appreciated.
I specifically want to question Amendments 1 and 20. I would not want to question all the amendments that are here, but Amendments 1 and 20 bother me in various ways. Amendment 1 bothers me because this phrase “hands on” is very difficult to grasp hold of. I know that it was part of Doogan. It is there, and we have to take account of it in a serious way. But what does it exactly mean? I will use as an example Amendment 20, which talks about supervision. Supervision can be more or less hands on. It works in different ways. If you are supervising a relatively junior member of staff or someone inexperienced in a particular procedure, supervision may be very active and very proximate. It would be quite hands on—showing somebody how to do something and how to do it well and properly. That sort of supervision surely cannot be excluded. If we allow the conscience opt-out for hands-on reasons, “hands on” is very hard to define.
If we mean literally touching the patient, that would exclude quite a number of things. If we touch the drip that will adjust the rate at which drugs flow, is that hands on? Yes, it almost certainly is. But step back a little bit: if you are passing something to the clinician, is that hands on or not? It gets a little harder to define at every remove from the immediate practitioner. “Hands on” is a difficult phrase to use, and to put it into law in this way would worry me. I would like to have a clear way of defining who the practitioners are—the practitioners in a medical sense.
Lord Brown of Eaton-under-Heywood
I thank the right reverend Prelate for giving way. I have never intervened to interrupt somebody from that Bench before, but I just wanted to point out that “hands on” is explored and explained in very full detail. It means 13 different tasks; it is applied and very clearly spelled out. If we amend the Bill to use this phrase, everybody will then look at Doogan—there is about a page of text—and know exactly where they are. I do not know whether the right reverend Prelate had realised that.
The Lord Bishop of Peterborough
My Lords, I have read Doogan and I am aware of what the noble and learned Lord, Lord Brown, is saying. That is not part of what is being specifically proposed in this Bill. It is one way in which the Bill could be read and interpreted, but once a Bill has been brought forward and becomes law, there are different ways of trying to interpret it which will create another legal minefield.
Baroness Thornton
I am grateful to the right reverend Prelate for giving way. When each piece of legislation was passed by Parliament—in 1967, 1989 and more recently—from that flowed a huge amount of discussion, in which the noble and learned Lord, Lord Mackay, and many other Members of this House were involved, about its application. This is not a new matter, and we know that that is what happens. A huge amount of consideration has been given to looking at how these particular pieces of legislation, such as the conscience clause in the Abortion Act 1967, should operate, including involving the royal colleges and all the other relevant parties.
The Lord Bishop of Peterborough
I am aware of what the noble Baroness is saying. I am using the example of supervision because it shows some of the complications in the phrase “hands on”. It is clear that supervision can mean a whole variety of different things—more remote or more proximate, so it is a difficult issue. I would strongly oppose Amendment 20 because in practice the word “supervision”, in practice, can mean helping the practitioner to do the job. It can mean ensuring that the job is done. It can mean without being strictly hands on but enabling the person to do something. That clearly will go against conscience in the way that the noble Lord, Lord Brennan, and others have made clear. The definition is difficult because “supervision” can mean different things. For me it is a matter of great concern about what is before us.
Lord McColl of Dulwich (Con)
My Lords, the thing that all the amendments in this group hold in common is the belief that conscientious objection should be provided only in relation to hands-on activity; that is, of actually performing the abortion. They suggest that other facilitating activities on which the performance of an abortion depend should not be included within the scope of the conscientious objection.
If we are serious about conscientious objection, this simply does not make sense. If we recognise that different people have different views about the morality of abortion and that while some of us regard abortion as perfectly moral and acceptable, others find it difficult to distinguish it morally from the taking of life of someone who has been born, we have to accept that the moral difficulty lies not just in the act of the abortion but also in the act of facilitating it, as has been mentioned. It seems to me that when we are clear that something is wrong, we are also clear that facilitating that thing, whatever it may be, is also wrong. We understand that if anyone who facilitates becomes complicit in the act in question, a moral responsibility is thus engaged. In this context, these amendments simply do not make sense.
If we were to accept the logic on which they rest, we would have to expunge from our law any recognition that someone who helps to facilitate an illegal act has any kind of culpability. Culpability should rest only with the person who does the act. Mindful of these considerations, it is difficult to see these amendments as anything other than an attempt to undermine and weaken conscientious objection. If someone genuinely believes that an act is wrong, the provision of a legal assurance that they do not have to do the act but only facilitate it makes the profession in question no longer open to them. It is as if they have been required to actually carry out the act itself. Anyone in this situation with a sense of integrity and wholeness that requires consistency across their moral life would have to leave the profession in that context.
I have friends who, when they went up for a consultant post in obstetrics, were asked the question, “Are you prepared to take your share of abortions?” If they said yes they were considered for the appointment. If, on the other hand, they said, “Yes, I am quite prepared to take my share of the abortions within the Act of 1967”, they were not considered for the appointment and they had to emigrate. I have many friends who had to do that.
Lord Winston
The Committee deserves clarity on that statement, if the noble Lord, Lord McColl, does not mind. I have huge respect for the amazing work that the noble Lord has done in surgery over very many years, but I have been in obstetric and gynaecological practice as a consultant for quite a long time and I have been on many interview bodies looking at staff who will be working in obstetrics and gynaecology. Sadly, I was not here for Second Reading, but I read the noble Lord’s Second Reading speech where he made that point very clearly. I do not recognise that happening in the services in which I have worked. In fact, that discrimination is exceptionally uncommon. I am very surprised that he said he found that a number of people have needed to go overseas. That seems rather an unusual situation. I would like some clarity on that. It is an important point because it affects the amendment I have tabled for later in the discussion.
Lord McColl of Dulwich
I thank the noble Lord for his intervention. I am not saying that it happens now; I am saying what I found in my experience. They were my friends, and I can give the noble Lord their names and addresses. They were extremely good obstetricians practising in Australasia.
It seems to me an important part of the British liberal constitutional tradition that we place a lot of emphasis on freedom. This freedom has many aspects, but central to it is the opportunity to work in one’s chosen profession without being required to act in a way that violates one’s own identity. Ours is not a constitutional tradition in which we use the law to compel people to decide between acting against their deepest moral convictions and losing their livelihood. The hounding of people out of their jobs on this basis is deeply illiberal. Although our constitutional tradition is closely associated with liberty, there are moments in our history when we have failed in this regard. I fear that historians looking back on this set of amendments in a hundred years’ time might recoil from them and wonder how on earth we came so close to stepping away from our historic British commitment to liberty.
I am of course aware that beneath these amendments rests what some would purport to be a respectable argument. It goes something like this: women have a right to have an abortion. People who conscientiously object effectively have the temerity to suggest that their rights as a service provider are more important than the rights of the service user. In this context, we need to rein in our conscientious objection so that it applies only to the doing of the act, not to facilitating it. This logic is deeply flawed for two reasons. First, workers have rights and consumers have rights too.
Lord Brown of Eaton-under-Heywood
Does the noble Lord accept that the Doogan case correctly decided and accurately states the law as it has been for the last 50 years under the 1967 Act and that these amendments do no more and no less than state the position as it is now authoritatively decided by the Supreme Court in Doogan?
Lord McColl of Dulwich
Yes, I accept that entirely, but we do not necessarily have to abide by that decision. If people feel strongly that it was the wrong decision, they have the right to come to Parliament to produce legislation and try to get it through to change that. That is the right of Parliament. Parliament decides, not the courts. The courts have to interpret what Parliament has said. Sometimes Parliament rushes legislation through so quickly that there are loopholes and problems that need to be corrected. It is not the job of the courts to produce the law.
Baroness Tonge (Non-Afl)
Will the noble Lord define what he means by “facilitate”? The amendment refers to someone “participating in a hands-on capacity”—that is the person who is actually going to do the abortion. The secretary who makes the appointment facilitates the abortion.
Lord McColl of Dulwich
Facilitate means a great number of different things, but the 1967 Act did provide—
Baroness Tonge
My point is that if a secretary in a hospital or a clerk who was involved in this service had a conscientious objection to abortion, would he or she see it as facilitating the abortion? Is that what the noble Lord is referring to? Because it applies to everybody.
Lord McColl of Dulwich
If she has a conscientious objection to it, then she should not be obliged to do it, because the 1967 Act specifically said that people did not need to do it. Acts of Parliament should not force people into doing things against their conscience—that is not the function of Parliament.
Lord Alton of Liverpool
The noble Lord makes a very good point. Indeed, a case was referred to earlier in Committee concerning Barbara Janaway, who was exactly what the noble Baroness, Lady Tonge, described, a medical secretary. She said she would not, “set the ball in motion”, as a result of which she lost her job and the courts upheld that she should not be able to continue in that post. The debates in 1967 in the House of Commons did not consider cases such as that, because it was not envisaged that that might be a problem. That is surely why the noble Lord is right in saying that although the Supreme Court may rule in a particular way and say that that is where the law now stands, it is the job of Parliament to say that perhaps the law now needs to be changed.
Lord McColl of Dulwich
Thank you—that is very helpful.
Somebody did suggest that there was not a great number of people with a conscientious objection. The NHS employs 1,200,000 people. Surely they can find enough people who would not be offended to be asked to do abortions. Has anyone thought about that? No. Surely it is possible for the NHS, with such a large workforce.
Lord Cashman
Again, I come back to the provisions in Clause 1(2). The noble Lord says that there are enough people within the National Health Service—for quite a few months I was a porter at the old Westminster Hospital—but his argument, I believe, goes that there will be other people who could do it. For that to happen, you need to delegate and pass it on, but according to Clause 1(2),
“‘participating in an activity’ includes … delegation … or supporting of staff in respect of that activity”.
Lord McColl of Dulwich
There are 1,200,000 employees in the NHS. Surely there are people who can do the delegation, so there would not be a problem.
Lord Cashman
My Lords, perhaps I have not made myself clear. There would be no duty on the person who did not want to be engaged in the process to delegate it onward to somebody else, according to the provisions of Clause 1(2).
Lord McColl of Dulwich
That is exactly right but, as I keep saying, there are hordes of people around—1,200,000 people—so you can surely find somebody who can delegate it. The noble Lord keeps pointing to the Bill, but surely there are so many people around in the clinic that somebody can do the delegation and make the arrangement.
Lord Alton of Liverpool
My Lords, I am sure that the noble Lord is right in his interpretation of the Bill. It lays no duty on any other person to carry out that delegation and he is correct that there would be other people working in the service who would doubtless carry on as they do now. One abortion takes place every three minutes in this country, which is 20 every hour, 600 every working day and more than 200,000 every year. There have been more than 8 million abortions since 1967. Clearly, there is no shortage of people willing to participate in such procedures, but this Bill is about those who are unwilling to participate in them.
Lord Cashman
Before the noble Lord, Lord McColl, replies, at the moment there is a duty to refer, but that duty would be overruled by Clause 1(2).
Baroness O'Loan
My Lords, delegation and referral are not the same thing and what is provided for in the Bill is a right to conscientiously object to delegation. I beg the pardon of the noble Lord, Lord McColl—I should not have interrupted.
Lord McColl of Dulwich
I am delighted to be interrupted. A debate is about toing and froing, and there is not enough of that.
If we use the law to impose an approach that is intolerant of conscience, forcing some people out of the medical profession and, effectively, dissuading others from joining it—that is an important point—many people will suffer as a result. We are already short in recruiting new doctors and these amendments are the last thing that we need. In the medical profession, the greater our overall capacity, the greater the capacity to provide abortions and, as we are trying to say, there are plenty of people without conscientious objections.
On the suggestion that we should adopt the amendments because they reflect what the noble and learned Baroness, Lady Hale, suggested in the Doogan judgment, we have mentioned, first, that we do not have to be constrained by her judgment; we are at liberty to come back and change the law, if it is the will of Parliament. Secondly, in the noble and learned Baroness’s judgment, she recognised that there are two potential ways of interpreting the intention of Parliament with respect to conscientious objection: a broad way and a narrow way. She said that,
“a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to ‘actually taking part’, that is actually performing the tasks involved in the course of treatment”.
She concluded that,
“the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed”.
We are trying to change the law so that it is quite clear that that is not so, and we have every right so to do.
This Bill is timely and it is a liberal measure that should get the support that it needs. By contrast, the amendments are deeply mistaken, for three reasons. First, they will hurt the service providers by imposing an ugly uniformity that will result in many more cases of people such as Mary Doogan losing their job. Does the noble Lord, Lord Steel, whose Bill it was in 1967, agree that the decision in Glasgow to sack Mary Doogan because of her conscientious objection to being involved in an abortion was the right decision? She was a wonderful midwife and had done more than 5,000 deliveries. She was a very valuable member of the team. Does the noble Lord think that was the right decision?
Baroness Tonge
My Lords, I was unable to speak at Second Reading and I apologise for that—I was at a family funeral, as it happens—but I feel strongly about this issue. I qualified in 1964. I was a medical student and a junior hospital doctor in the days before the Abortion Act of the noble Lord, Lord Steel. I remember well the gynae wards and the women who had had unsafe, septic abortions. Some of them died. In the early 1970s, I was working in Birmingham in general practice and family planning, when the professor of obstetrics and gynaecology refused to have anything to do with the new Abortion Act. The noble Lord, Lord Winston, might know more about management in those days than I do but, because the professor was in charge of what his department provided, he absolutely forbade abortion to take place in that department. Perhaps the noble Lord remembers him.
Lord Winston
As the noble Baroness has mentioned my name, perhaps I might add that there was a case of a president of the Royal College of Obstetricians and Gynaecologists who was absolutely opposed to abortion, so this is not unknown in the profession.
Baroness Tonge
The point that I wanted to make is that, as a consequence, in whichever way we now plan, purchase and provide services for patients, if someone in management—the chief executive—is against abortion, could that mean that they would conscientiously object and refuse to have abortion as part of the service in that area? It is extremely complicated.
If in this country abortion is legal, under the parameters set by the Act, then it should be implemented equally for all women in this country. It should not be at the whim of individual practitioners, whether they be doctors, managers or secretaries—whoever is going to affect the service delivery to the women of this country if they are allowed to conscientiously object. If they do so, they should not join the service in the first place. No one is obliging them to. There are plenty of jobs around that do not involve abortion, so why do they not do them?
I have a bit of experience. At one time, I was head of women’s services for a health authority in London, during which I was in charge of family planning and liaising with GPs—and, in fact, of setting up an abortion service because the hospital doctors were finding it difficult to cope. We franchised it out to the BPAS, as I think it was at the time. That was one of the first times that that had happened. It was very well and efficiently run but when I think of the number of people involved in setting up that service, both when it was in the health service and when we franchised it out, if everyone involved had had the ability to conscientiously object, that would have completely upset the service. I do not know how we would have got it going.
To extend it a little more, if you have a certain number of people exercising a conscientious objection in one field, that may put extra strain on people in other fields who are not normally employed in that service to fill in and to do that job for them. You would be setting up a situation that could disrupt all the services in a hospital, not just the obstetric and gynae services.
Finally, I say to the people who oppose abortion that I fully understand their reasons. I understand the religious beliefs behind it in some cases. However, whether a country provides safe abortion or not, the same number of abortions take place because, if a woman cannot access abortion, like the women in Birmingham in the early 1970s, they will go to illegal practitioners, they will endanger their life and often they will die. When people oppose abortion, they are actually providing a route for some women to lose their lives. That is a terrible thing to have to say, but it is true.
Baroness O’Loan
The noble Baroness seems to be suggesting that we are attempting in some way to restrict access to the three areas of healthcare services. That is absolutely not the case. The Bill provides that and acknowledges the current responsibilities of the Government to provide a National Health Service with the services that Parliament has agreed should be provided. I want to make that clear because I am not sure the noble Baroness understands it.
Baroness Thornton
The Bill does not do that. That is what this scrutiny is about. It really does not. If the noble Baroness really wants to make progress, she needs to bring forward amendments which clarify that. She has not done so, so these amendments are about probing that and, in particular, this issue. Rather than exhorting us to say what the Bill does not do, the noble Baroness needs to examine it and take on board its unintended consequences. That is what this House exists to illustrate.
Baroness O’Loan
That is exactly what we are doing. This is a very useful debate.
Baroness Tonge
I was not implying that the noble Baroness was trying to destroy the Abortion Act completely. I entirely accept that, but what she is doing could lead to the service being very badly distressed and may have the same effect in the end.
Baroness Flather (CB)
My Lords, I have been trying to stand up for some minutes. First, I pay tribute to the noble Lord, Lord Steel, who introduced the Abortion Act. There are very few times when something like that has gone through Parliament. The Earl of Arran took the Sexual Offences Act, which protected gay consenting adults, through this House. They were great milestones that looked to the future. I fear that this Bill is looking backwards. I do not like the idea of anything looking backwards. I will say more about not providing help for terminally ill or dying patients. We talked about human rights. I believe it is a woman’s human right to be able to access abortion. As the noble Baroness, Lady Tonge, said, abortions take place anyway and women die. That is the difference. We do not want women to die, but if a woman cannot bring up a child or does not want a child, it is better that she can access abortion.
Baroness Meacher (CB)
My Lords, I was not planning to intervene in this group, but the entire debate has focused on abortion. Amendment 1 also applies to the withdrawal of life-sustaining treatment at the end of life. That is a totally different situation from abortion. These people are finding life unbearable, they are finding their treatment intolerable, they are facing the fact that they are dying, and they want something to happen. They want to be able to have their life-sustaining treatment withdrawn. Of course under current law someone with a conscientious objection who might be expected to help with that process has an absolute right not to do so. The great concern of those of us concerned about the end of life rather than the very beginning of it is that a lot of people towards the end of life find themselves in hospices, and we hope more of them will do so over time.
If you extend conscientious objection to supervisors, managers and so on, hospices do not have armies of staff. The noble Lord, Lord McColl, made the point that there are 1 million-plus people in the NHS, so surely there are people who can undertake abortions. Yes, but if you are an elderly, very sick person in a hospice and the manager of that hospice, the supervisor or someone else has a conscientious objection, you are likely to find yourself unable to exercise your absolute right to have your life-sustaining treatment withdrawn. That right cannot be fulfilled. The GMC makes very clear in its guidance that no one should be able to exercise a conscientious objection unless they ensure that someone else will take over that role, but that is likely to be impossible.
Baroness Finlay of Llandaff (CB)
Does my noble friend Lady Meacher recognise that hospices do not provide life-sustaining treatment? It is the very ability of patients not to continue with whatever their life-sustaining treatment was—whether chemotherapy, artificial nutrition and hydration or ventilation—that is in question. In those units, symptom control is managed when patients refuse consent to continue. To treat a patient who has had life-sustaining treatment and says, “I do not want any more”, would be assault in law. That refusal of consent must be respected and, in the process, you have a duty of care. That duty of care is to provide all other care and comfort measures during the process as they die of their disease. That is a natural process, and hospices are about accepting death. You will not find people in hospices being ventilated against their wishes. There may be some people on non-invasive ventilation because they want to continue with it while having other care. We must be clear that the Bill will not jeopardise hospices. I will speak on the Bill in a moment, but would like to put that on record.
Baroness Meacher
I understand that in many hospices the emphasis is, as my noble friend said, on symptom control—in other words perpetuating, keeping things going—rather than enabling, encouraging and helping somebody to take their life in a dignified way.
Baroness Finlay of Llandaff
I am sorry, but I have to intervene again. I should have declared my interest as palliative care lead for Wales, as vice-president of Hospice UK and of Marie Curie, and as having set up a lot of hospices. Symptom control is not life-prolonging treatment; it is about keeping people comfortable during the time they are dying of their disease. It may run in parallel with other treatments and it may be provided when other treatments are withdrawn, but it certainly does not prolong life per se. There is evidence that if you leave people in pain, it is a powerful drive to respiration. When you make people comfortable and relieve their pain, they can let go of life and die, but it is not the morphine that has killed them, it is the disease. Symptom control does not force people to stay alive.
Lord Winston
My Lords, sometimes groupings in our debates make things difficult for people who are trying to table amendments, and I have been trying hard to be relevant to the amendments but at several points in the debate over the past hour and three-quarters, reference has been made to things in the amendments which I tried to table.
I want to say one thing at the start. There are two things that I find very difficult in this House. First, there is the issue of sometimes filibusters occurring during debate—and I am very pleased that there has not been a filibuster this afternoon although, sadly, there was this morning. It is very unfortunate. I am well aware that we have just seen Old Father Time come into the Chamber; he has not actually got a scythe yet, but I suspect that he is about to cut us short at the appointed time.
That is one thing. The other issue is the question of declaration of interest. It is very difficult, but I make it clear that in these ethical and moral debates, of which this House is justifiably very proud, we do not always declare where we might actually have a conflict of interest. For example, I make it very clear that I am declaring a conflict of interest as an orthodox Jew who will have certain limitations on how I would do termination of pregnancy. But I respect absolutely the autonomy of the patient in front of me, and one amendment that I have put down later on would argue that in fact you have a duty to ensure the autonomy of that patient, as your autonomy, is equally respected, and to find some solution. In practice, that means consulting colleagues and trying to work that out.
I have a regard for the noble Baroness, Lady O’Loan, and her Bill, but I think that we should be prepared to explain where we are coming from during these debates, and so often we do not. I remember some time a few years ago on assisted dying that I spoke passionately against a particular amendment which would have allowed some assisted dying. At the end of that debate, after I had spoken, people on my Benches said, “Why aren’t you coming through and voting with us?”. I said that I had said what I had to say but that I felt, as an orthodox Jew who would not assist an assisted dying, that I did not think that I could go through the voting Lobby. That sounds to me the appropriate way.
Having said all that, I do not want to hold up this debate—but I fear that we are getting very close to the end. I want to make a few points on points that have been raised so far. My Amendment 2 would allow the recognition that, most of the time, in spite of what the noble Lord, Lord McColl of Dulwich, said, it is not the medical practitioners in my experience who have a conscientious objection but a whole range of other people—the operating department assistants and the porters, for example. Again and again, I have seen porters in hospitals where I have worked who have felt that they would not want to wheel a trolley into the room where a patient is going to have a termination of pregnancy. Sometimes one has been able to accommodate that. However, as we all know, the NHS is under massive strain with resources, and that becomes difficult.
I believe absolutely, and in all conscience, that the amendments that I have tabled would make this Bill workable; I think that that is possible. There is a way through this. The noble and learned Lord, Lord Mackay of Clashfern, kindly referred to one of the amendments that I tabled, Amendment 25. One point of that amendment is that it shows that the Bill covers not just obstetrics, gynaecology and termination of life but pretty well every medical area that we have specialities in, where we really have to reflect on these issues of conscience. That has been spelled out in that amendment—although it is an open question as to whether it is well written or not—to make it very clear that this affects the health service to a very great extent, and this is an issue for this Bill.
At the moment, I think that the only other fellow of the Royal College of Obstetricians in the Chamber is the noble and learned Lord, Lord Mackay. In the debate in 1989, his speech introducing the Human Fertilisation and Embryology Bill was the most amazing speech. In 20 minutes, he did what nobody has been able to do in the journal Nature, in my profession. It was a brilliant exposition of where we are, and I am hoping that I might persuade him, as one of the two fellows in this Chamber, to set up in private practice when this is over, doing in vitro fertilisation.
The difficulty has become the definition of what conscientious objection involves, as my noble friend Lord Brennan, said, and that is something that we should look at. We cannot simply have the narrow view of a few professionals who would be affected by this measure. It has to cover the whole service, as it does, for example, with in vitro fertilisation.
Lord Alton of Liverpool
My Lords, in his remarks just now the noble Lord invited me to contribute at this point in the Committee’s proceedings. I spoke at Second Reading and I do not intend to repeat what I said then. The noble Lord, Lord Steel, will not be surprised that I oppose his amendment. Nevertheless, over the nearly 50 years that we have known one another, I have always been grateful for the respect he has shown to an alternative view to the one he puts now and has put in the past. I was particularly grateful to him when this became a matter of policy in my former party. The noble Lord, Lord Steel, also resisted it becoming party policy because, as he said, it would polarise attitudes and mean that some people could no longer follow some issues of conscience because of party diktat.
Some 51 years ago, when I was at school, I wrote to the then leader of the noble Lord’s party, the late Jo Grimond, asking whether the Abortion Bill, which the noble Lord had placed before the House of Commons, was a matter of party policy or conscience. I was given the forthright reply: there are different views about this and it is a matter of conscience. It was never a problem for me, as the only new member of the parliamentary Liberal Party in 1979, to serve under the noble Lord, Lord Steel, and, indeed, to be his Chief Whip. Reasonable accommodation—how we accommodate one another—which I mentioned in my earlier intervention, is at the heart of what this debate should be about. The noble Lord, Lord Winston, made some telling and helpful points in his contribution. The noble Lord, Lord Steel, said: “This isn’t the way to go about this”, but he would agree that, 50 years later, many things have come to pass that were never anticipated during the debates in 1967. A proper review—perhaps outside the proceedings of this Chamber—of the legislation, its implications and the ways we can protect people such as Mary Doogan is long overdue.
She spoke in your Lordships’ House and her case goes right to the heart of today’s debate. She is, as the noble Lord, Lord McColl, said, an extraordinary woman who was involved in delivering over 5,000 babies and said in an interview:
“It is not about religion. It’s about conscience”.
She went on:
“It goes against everything we stand for … the women I cared for would never ever have known my views on abortion”.
This is very important. Here is someone who has been driven out of her calling in life. She did not go into midwifery to carry out abortions; she went into midwifery to deliver babies. Although I understand the reasons why the noble and learned Baroness, Lady Hale, found as she did—my noble and learned friend Lord Brown of Eaton-under-Heywood was right to refer to the judgment earlier—it is up to this place, as the noble Lord, Lord Brennan, told us, to then deliberate and decide whether the law should be allowed to continue to stand in that way.
Consider for a moment the changes in the law since 1967 and how they impact on people who may have a profound conscientious objection to the law. One is, for instance, the extension of the Act in cases of disability right up to and even during birth, on the grounds of things such as club foot, hare lip and cleft palate, let alone Down’s syndrome—90% of all babies with Down’s syndrome are now aborted. If I were working as a medic and was told that I had either to participate in—to be hands-on—or to facilitate such things, I would rather lose my job than do that. This is where I disagree with the noble Baroness, Lady Tonge, who said that such people should not join the service. Who do we lose if we take such an attitude to people who, yes, have a different view from the noble Baroness but nevertheless make an extraordinary contribution to the health service?
Baroness Flather
This is a very interesting point. Should they leave the service or not? I had a very recent experience when my husband was taken ill; he was dying and was taken to hospital. We had to make a decision about whether to keep his breathing going. My sons and I were there discussing this matter and it was a very difficult time for us. The doctor in charge came and spoke to us and told us what the situation was. We decided it was not the right time to prolong his life. If the doctor had then said, “I’m sorry, I have to get someone else to do this necessary job. I can’t do it because I object to it”, that would have been terrible. You can say that he should have prepared for that in advance, but how can he prepare for everything in advance? You do not know when a dying person will come into hospital.
Lord Alton of Liverpool
The noble Baroness is of course right; you cannot ever say with any certainty what will happen and how long someone will live. My noble friend Lady Finlay intervened on that point earlier and, at Second Reading, my noble friend Lady Richardson gave another good example, which I can come back to.
Baroness Flather
My noble friend Lady Finlay’s example is perfectly correct but it is not the same as my example. My example is that my husband had got to a stage where he really did not know what was going on. My noble friend’s example is of course totally different—and it is a very good thing that people have hospices to go to.
Lord Alton of Liverpool
We are agreed about that. The point I made at Second Reading when my noble friend Lady Richardson intervened on a similar point is that we do not need to go to heroic lengths—that is the phrase people often use—to keep alive someone who would otherwise be dying. I think we sometimes confuse these two things. Let me return, if I may, to the particular point about abortion.
Baroness Tonge
Very briefly, by way of personal explanation, I hope I did not imply that people should leave the service if they were required to perform an abortion. I was saying that there are many specialties to go into in medicine. My goodness, you can do anything in medicine, from management and pen-pushing right down to—well, I will not say “down to” because it would demean whoever I got down to. There are many branches of the medical profession; there is no need to go into obstetrics and gynaecology in the knowledge that you will have to do things totally against your conscience.
Lord Alton of Liverpool
‘I was very grateful that the gynaecologist who saw my own children into the world did not support abortion. That gave my wife and I great confidence in the lady who was our gynaecologist. I think there should be scope within the service for people to have alternative views. If the phrase “don’t join the service” that the noble Baroness used were to apply, it would mean that people like that would not be able to join the service in the first place.
Another change that has taken place in these years is that it was never envisaged in 1967 that abortion would happen on a regular day-by-day basis on the scale on which it is taking place. In fact, the noble Lord, Lord Steel, often said that it would occur only in rare and exceptional circumstances. There are now examples of some people who have had eight abortions under the National Health Service. You have to ask the question the noble Baroness often asks: “Why is not more done earlier to find alternatives to this?” That too should be in the scope of an inquiry into the workings of the 1967 Act, and so too should be the issue of gender abortions. If I was working in the National Health Service and was told that I had to facilitate the ending of the life of a little girl merely because she was a little girl, I would say no. The 1967 Act surely does not allow for that, and yet we know that there have been such cases and that the authorities decided not to take any legal action. Indeed, there was a vote in another place on a Bill to outlaw such gender abortions. It was lost by 201 votes to 292, so this is not the realms of fantasy. Noble Lords have to ask themselves precisely what their red line would be in regard to questions such as this.
I conclude by giving two opinions from people who have thought about these things in great detail. One is from Professor Andrew Tettenborn, who said:
“The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern … and so organisation rather than participation is increasingly what will be demanded from … unwilling staff”.
I also refer the Committee to the review of Dr Mary Neal, senior lecturer in law at Strathclyde University, who said:
“The core purpose of any conscience provision is to protect individuals from having to share in moral responsibility for something they consider to be seriously wrong. Since the current law leaves some of those who would share in responsibility unprotected, it fails to fulfil this core purpose”.
So when the noble Lord, Lord Steel, said in 1967:
“The Bill imposes no obligation on anyone to participate in an operation”,
I believe he was sincere. When he also said that the “conscience” clause,
“also gives nurses and hospital employees a clear right to opt out”—[Official Report, Commons, 13/7/1967; col. 1318.],
I believe that is what he intended. I do not believe he intended that people such as Mary Doogan should lose their job. That is why my noble friend’s Bill is so important.
Baroness O'Loan
My Lords, I have listened with great care to the various speakers who have articulated their views on this group of amendments. It has been a very profound and interesting debate and I thank all contributors.
As I said at Second Reading, the Bill does not seek to limit access to abortion. It could never result in a patient who had expressed a wish not to be resuscitated in an advance decision being forcibly treated. It would not result in treatment, hydration or nutrition being withdrawn from someone who wanted to live. For the avoidance of doubt, it is only about enabling medical practitioners to withdraw from treatment which they perceive for moral or philosophical reasons, or for reasons of belief, to lead inevitably to death, whether of a living person or of an unborn child. It is not about doing things to patients; it is about some medical practitioners not having to do some things.
I want to allude for a moment to the various contributions on the subject of what the noble and learned Baroness, Lady Hale, said. I endorse what the noble Lord, Lord Alton, said—that Parliament could not have envisaged the way in which the abortion law would develop. The noble and learned Baroness, Lady Hale, chose the narrow meaning on the basis that it was more likely to have been in the contemplation of Parliament when the Act was passed. She acknowledged the existence of a broader interpretation. As the noble Lord, Lord McColl, very clearly said, we have the right, as a Parliament, to change things. I am suggesting that we need now to contemplate the situation in 2018, not the situation in 1967, so it is not about refusing people access to treatment. There have been suggestions that it is about denying patient autonomy. A patient does not have and never has had the right to compel a particular practitioner to do a particular medical procedure. However, they have the right to a service and the right, if they want it, to a second opinion, and that must continue.
Baroness Barker (LD)
My Lords, time is against us. For me, that is deeply frustrating because I have listened with great care to a number of very important points as well as a number of somewhat contentious allegations and assertions being made throughout the debate, each and every one of which should be subject to a great deal of scrutiny in your Lordships’ House.
In the short time available to me, I wish simply to say this. The noble and learned Lord, Lord Mackay, as ever, gave one of the most interesting and thought-provoking speeches. He talked about the nature of conscientious objection, and I think that issue needs further examination. It is important to look not only at the nature of conscientious objection—some such objections are absolute, others are not—but at the context in which it is exercised. If there has been a fundamental flaw in this debate, it is that we have not debated those two things together. That has enabled claims to be made on either side that I believe are not fully justified.
From where I am sitting and from the briefings I have had, I would say that conscientious objection must seek to balance the rights of healthcare professionals to act within their own ethical principles with the rights of patients to access medical care. The noble Baroness, Lady O’Loan, was half-right when she said her Bill as drafted would not remove the necessity for the NHS to provide access to abortion care. No, it would not; it would simply frustrate it. In practice, that would mean the denial of service to a woman. The exercise of conscience is not without effect.
The noble and learned Lord, Lord Mackay, said he is relieved that he is not a medical professional. So am I, but I do pay great attention to those who are. In this case, notwithstanding the point rightly drawn to our attention by the noble Lord, Lord Winston—that there is not total agreement among members of the professional bodies—those bodies have considered this issue over the last 60 years. They were involved in the discussions before my noble friend came forward with his landmark legislation, and over time came to conclusions that their members in the NHS—all 1 million of them—have to accept. They are the people for whom this is not a theoretical debating point; it is the exercise of life-and-death judgment.
Medical ethics are not the preserve only of those who have conscientious objection. Healthcare professionals who provide these services do so for the good of their patients, and this Bill, as currently drafted, threatens that. Therefore, at this late stage, I have to say to the noble Baroness, Lady O’Loan, that I welcome her invitation to talk, although I do not hold out much prospect of agreement because I think that we come from fundamentally different places.
The House should think long and hard about the words of the noble Lord, Lord Turnberg, regarding what the Bill might mean. In doing so, it is incumbent on all of us to consider whether this is an improvement on the point that my noble friend Lord Steel reached 50 years ago in anticipation of the problems that we now seek to address. I support the amendment.
Baroness Thornton
I just want to add two words to that. The noble Baroness, Lady Barker, is completely correct. The noble and learned Lord, Lord Brown, and my noble friends Lord Turnberg and Lord Cashman have summarised the situation. I think that the noble Baroness, Lady Barker, is right: the Bill does not improve the position that the noble Lord, Lord Steel, came to all those years ago.
I say to the noble Baroness, Lady O’Loan, that assertion is not evidence. I read her speech at Second Reading in which she used the word “evidence” but did not give us any evidence. Assertion is not evidence. In this Chamber, when you want to make a case and prove it to noble Lords under the scrutiny system, the evidence has to be evidence and not assertion.
Lord Steel of Aikwood
My Lords, we are running out of time and the Committee will want to try to dispose of this amendment before we rise. I begin with a note of agreement with the noble Baroness, Lady O’Loan, which is that this debate has been of a very high order. There has been no waste of time and no filibustering, and it has been the House of Lords at its best.
The reason I began by quoting from the document produced by the Church of England in 1965 is that that was the basis on which the Church of England and subsequently the Church of Scotland, to which I belong, and indeed the Methodist Church endorsed the reforms of the abortion law. Their endorsement rested very much on the arguments produced in that report. However, I agree with what the noble Viscount, Lord Craigavon, said: we have to respect those who took a very different view.
It will not surprise noble Lords to know that, because of the 50th anniversary of the Abortion Act, I have lately been getting quite a lot of correspondence—half fan letters and half hate letters. If I may quote from one that came in on Wednesday, it will show the sort of thing that we ought to take into account:
“For more than 46 years laws which lethally discriminate against new human life have brought about the senseless deaths of more than 8,000,000 unborn babies. Abortion is truly the holocaust of our time, but the one ignored by the mainstream media, and, it seems, just about everyone else too”.
It is because I sympathised with and respect that view that I undertook, in discussion with the Catholic seminary, the introduction of the conscience clause. The problem I have with the Bill is that it is not clear where the line is to be drawn. For example, if you are appointed as the chief executive of a health board, everything underneath that health board is under your jurisdiction. What happens if you have a conscientious objection to abortions being carried out? That is the fundamental problem with the Bill: nowhere is a clear line drawn.
Lord Steel of Aikwood
Perhaps we should get together outside of this House and work out a framework that is workable. I do not believe that this Bill does it. I was right to put forward this amendment. It has been a first-class debate, but I now beg leave to withdraw the amendment.