Abortion Act

Wednesday 9th October 2013 Westminster Hall

[Mark Pritchard in the Chair]

14:30

[Mr David Burrowes (Enfield, Southgate) (Con)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I know that you share my concerns in this debate. I welcome everyone who is here for the debate and I thank the Ministers for coming. Their presence shows the seriousness and concern that are felt about the issue.

The debate has been triggered by The Daily Telegraph’s investigation into gender-selection abortion last year and the subsequent police investigation and decision by the Crown Prosecution Service on 5 September this year that it was not in the public interest to prosecute the doctors who were found to have contravened the Abortion Act 1967. The Director of Public Prosecutions has now given his detailed reasons, following a review of the public interest factors for or against prosecution.

Concerns about the authorisation of gender-selection abortion and the lack of any prosecution have been widely felt in the House and among the public. I am grateful for the support from hon. Members of all parties, despite our usual divide and the divide over the abortion issue. Indeed, 50 signed a letter to The Daily Telegraph. They were united in calling for clarity from the Attorney-General about the policy on contraventions of the Abortion Act. We look forward to that clarity coming from the Attorney-General today.

Keir Starmer, the DPP, recognised in his article on Monday that

“this country has a strong tradition of open and transparent criminal justice, and the probing and debating of prosecutorial decisions is an integral part to that tradition.”

Today I want to follow that fine tradition of probing and debating. The conclusion I have come to, supported by the DPP’s statement, is that the policy on prosecutions or offences contravening the Abortion Act is unclear, and, sadly, largely unenforceable. The DPP has helpfully shone a prosecutorial light on the practice of abortion where doctors have no direct contact with patients, where authorisation forms can be pre-signed, and where assessments concerning physical or mental health risk can be treated as routinely as questions of choice.

Some will argue that the issue of gender-selection abortion is simply a restriction of choice. Ann Furedi is the chief executive of the British Pregnancy Advisory Service, the leading provider of abortion services. It has some 40 clinics in England, Wales and Scotland and performs 60,000 abortions a year. She says that sex selection may not be grounds for abortion, but there is no legal requirement to deny a woman an abortion if she has a sex preference, provided that the legal grounds are still met. Indeed, Ann Furedi went so far as to say it would be “wrong” to refuse to consider an abortion request when gender is cited as a reason. Those are the words not of the Chinese or Indian pregnancy advisory service but of the British Pregnancy Advisory Service, advocating gender selection abortions and the removal of barriers to abortion. The issue is worldwide: The Economist recently published an article describing the 100 million abortions, which it described as “gendercide”, that are done on the basis of gender throughout the world. Concern is shared throughout the House about the need for proper gender equality and respect for basic rights.

When I heard about the investigation and the Care Quality Commission investigations that followed, I could not believe that such things could be happening in this country. The words I have quoted and the lack of any prosecutorial decision—there have been a handful of prosecutions for abortion contraventions in the past 10 years—give a green light to abortion on demand, which flies in the face of the Abortion Act and the intention of parliamentarians in 1967. Some 98% of abortions tick the box of mental health risk, but if we are honest, the truth is that that covers a multitude of reasons, and one of those reasons might include gender.

The DPP himself has referred in his statement to a programme manager at the Department of Health who indicated that many doctors feel that forcing a woman to proceed with an unwanted pregnancy would cause considerable stress and anxiety. The corollary of that is justifying the mental health grounds. It follows, therefore, that in practical terms we have in this country abortion on demand. I recognise that the Attorney-General is focused on the prosecution policy and will not trespass into the wider health policies, but my question is relevant. How does this reality impact on the policy towards prosecutions? How can it be in the public interest—Ann Furedi has raised this question—to prosecute contraventions of the Abortion Act when there is such a gap between the law and practice?

[John Glen (Salisbury) (Con)]

The key issue is about the definition of the mental health issues and the bar that is set for them to be understood to be a meaningful reason for an abortion. That can be a catch-all for an inclination on any grounds to have an abortion. If it is not set clearly and applied appropriately, it will result in what my hon. Friend has set out.

[Mr Burrowes]

My hon. Friend makes a good point. A wider issue is transparency and honesty around definitions and assessments. It is an issue because 99.6% of the 98% who relied on the grounds of mental health risk are those that this applies to. The investigation and the reasoning have highlighted the lack of guidance and how it is disparate across the country. We need further information. We are in the unknowns, because there is a lack of data and proper information. We do not know enough about the assessments in relation to mental health grounds. Perhaps the doctor is not even present to make the assessment.

[Robert Flello (Stoke-on-Trent South) (Lab)]

I am grateful to the hon. Gentleman—I shall call him my hon. Friend this afternoon—for securing this debate. Following on from the previous intervention—I think he is starting to allude to it—if the doctors concerned are not even meeting the woman who is presenting and requiring an abortion, how are they to judge whether the barrier is met?

[Mr Burrowes]

My hon. Friend—he is very much my hon. Friend in these matters—is right. In the case that brought about the investigation, both GPs failed to carry out an in-depth mental or physical assessment of the patient. One GP even claimed that he thought the patient was lying. Instead of taking it a stage further and delving further, they agreed to authorise the abortion. In one of the cases that have been reported, one of the GPs brazenly said that it was “like female infanticide”.

We need to get to the bottom of what the law is for, and that is the focus of this debate. We will then draw attention to the issue of appropriate guidance. So what is the law on gender selection abortion? My hon. Friend the Member for Broxtowe (Anna Soubry), the outgoing public health Minister—I welcome the new Minister, the Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), who is here—wrote to me on 3 October; it was one of her last letters as public health Minister. She wrote to say unequivocally, and it has been repeated by the Secretary of State for Health, that abortion on the grounds of gender alone is unacceptable and illegal. This has not changed. I therefore look forward to the Attorney-General making the obvious point and confirming the policy position. However, there is some doubt, because Ann Furedi, the BPAS chief executive, says that the law is “silent” on the question. Indeed, the DPP in his letter on 7 October said quite properly that the law does not expressly prohibit gender-specific abortions. Rather, it prohibits any abortion carried out without two medical practitioners having formed a view in good faith that the health risks of continuing with the pregnancy outweigh those of termination.

The public might be surprised that such a prohibition is not expressed and that it is not clear. The British Medical Association takes it a stage further, aside from the issue of whether there is an express prohibition. In the BMA’s words,

“there may be circumstances, in which termination of pregnancy on grounds of fetal sex would be lawful”.

That is in the BMA’s handbook of ethics and law and the guidance that goes to GPs. The concern about policy—this is my question to the Attorney-General—is whether the law is clear or silent. In particular, we are concerned about the practice emanating from the policy, which in effect is to turn a blind eye to contraventions of the Abortion Act.

[Robert Flello]

I am listening carefully to a well-measured and thoughtful speech. Perhaps Members will forgive my simplicity in such things, but is it not the starting point for any position that any termination of an unborn child is infanticide, and that the 1967 Act gives specific situations in which it is not? Therefore, surely the default position must be the original position, as it was before the 1967 Act.

[Mr Burrowes]

That is the position in principle: the Abortion Act provides effective safeguard and defence against the Offences Against the Person Act 1861. We have a gap, therefore, and the issue is, where it has been exposed—rarely do such cases see the light of day—why, when the evidential threshold has been reached, is it not considered in the public interest to take things a stage further, into court?

In the particular cases brought to light by The Daily Telegraph investigation, the DPP and the CPS give much weight to the law giving

“a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists”.

The CPS stated that it was up to doctors “to interpret the law” and, flowing from that, that the cases were

“better dealt with by the GMC rather than by prosecution.”

The gap I referred to is, therefore, in effect being determined by doctors, with their wide discretion to interpret the law—if a problem is exposed, it is for the professional body to investigate. As a politician, to me that seems to be passing the buck—the responsibility for enforcing the law—from the courts to doctors, thereby second-guessing the intentions of Parliament on enforcement.

As a criminal defence lawyer, I looked more deeply into that decision. The reasoning seems to be for an evidential rather than a public interest factor against prosecution—the public interest factor was the focus of the review. The CPS statement seemed to be going into what the DPP himself admits were the overlapping considerations of the evidential and public interest tests. The main basis of the DPP’s reasoning for not supporting a prosecution—which went a stage further and, with great respect, I suggest perhaps moved the goalposts towards the evidential side of things—was the evidential difficulties arising in the case, which I think can be applied generally and are of general concern in all such cases. Although the evidential test in that particular case had been passed, my concern is that the wider public interest appears to have been sidelined. That is not only my view, although I have 20 or so years of experience in the criminal law and in dealing with cases where it is difficult to detect a crime.

What is the public interest factor in such cases? The former DPP, Lord Macdonald, drew attention to that point, saying that there is “strong public interest” in prosecuting crimes that are hard to detect, such as sex-selection abortion. The onus is therefore much more on looking into what is in the public interest when so few cases are exposed and where we recognise that there are evidential difficulties—perhaps inherent—in the current system, given the lack of guidance. Does that not make the case even more strongly for a prosecution being in the public interest?

[Glyn Davies (Montgomeryshire) (Con)]

I thank my hon. Friend for bringing a subject of such huge interest and importance before us. What impact does it have on public perception of the law and its integrity? Any effect can spread to all sorts of other areas, such as assisted suicide. Once the public’s perception is that the law is not enforced, as it has been in one or two cases, confidence in the law’s ability to deal with highly complex issues disappears.

[Mr Burrowes]

My hon. Friend makes a good point. In cases of assisted suicide, the DPP has come forward with guidance to provide some clarity, and that was carefully worked through. One of my requests to the Attorney-General is to reflect on what has happened and, with the DPP, to come forward with clear guidance to ensure that confidence in the integrity of the law that many say has been lost. I also ask the Attorney-General to comment on the former DPP’s view. In addition, it must be in the public interest, in policy terms, for such cases, in which there has been an obvious abuse of abortion legislation—the cases are unusual and rarely see the light of day, because they are not readily detected—and in which the evidential threshold has been passed, to be seen in court.

The danger now is that the decision by the DPP, following on from the CPS, sets a precedent—no prosecutions under the Abortion Act without clearer evidence. Where will we get that clearer evidence? Do we now have a new evidential test for abortion-related offences, which can rarely be satisfied due to the lack of the different factors affecting this, not least the lack of professional guidance from doctors?

Another concern about the CPS decision not to find public interest to prosecute was the deferral to the GMC to enforce the breach of law. That was particularly apparent in the original decision of the CPS, which saw that as a key factor. The last time that I checked on enforcement of the Abortion Act, it was for the courts to do, and not for a disciplinary committee of GPs, which was never mentioned or even suggested in 1967. That option is certainly not in statute. This is specifically prescribed in statute as a contravention, and the law should be enforced. I trust that the Attorney-General will make it clear today that criminal sanctions cannot be avoided because of professional status—making a point about integrity—and that applies across the board with other instances of criminality involving the professions. Plainly, everyone is equal under the law, although some of us would say that that is not the case for an unborn child.

The CPS decision to drop the case and to leave it to the GMC highlights the gap between abortion law and practice. That must be filled somehow, at least by guidance through GPs, but also by reform of the legislation. I therefore welcome the assurance that I received from my hon. Friend the Member for Broxtowe, then an Under-Secretary of State for Health, that the Department of Health has requested that the chief medical officer issue guidance. I look forward to it, and hope that there will be proper consultation on it.

Such guidance is needed not only because of the cases involving GPs highlighted by The Daily Telegraph, but also because of the CQC investigation in July last year. Fourteen NHS hospitals throughout England failed inspections, all involving the photocopying of doctor’s signatures and other breaches. For example, Rochdale hospital’s regular routine was to pre-sign all abortion forms—not only in one case—and the Princess Alexandra hospital in Harlow used the photocopied signature of a doctor for so long that it was well beyond the time that he had been employed as a doctor or could have had any knowledge of the cases. Such is the extent of the abuse and breaches of the Abortion Act. Such malpractice would not be tolerated by patients or others in the prescription of antibiotics or common painkillers, for example, and yet a blind eye is being turned in abortion cases.

The scandal is not only about malpractice, however; those hospitals were not referred to the police for investigation, and no CQC investigation has resulted in any prosecution to date. Why is that? What is going on? Will the Attorney-General respond about the policy? The system is open to abuse, to dishonesty and to criminality, which, without reform, are going unchecked and unprosecuted.

Why was the DPP not more involved at an earlier stage in the initial CPS decision on whether to prosecute, given the significant public interest? Was the Attorney-General consulted on that decision, given the public policy considerations, and if not, why not? Will guidance be provided to the CPS for consideration of future contraventions of the Abortion Act? Will a review consider whether the safeguards set down by Parliament, in good faith, are being properly applied in 2013 and still have full force in law?

On the subject of public interest, which is what we are discussing today, I want to thank The Daily Telegraph, which has been acting in the public interest by investigating and exposing the problems with the Abortion Act, which are of concern to many, on all sides of the fence on the issue of abortion, in particular because such problems might have led to sex-selection abortion. Without such investigative reporting on behalf of the public interest, there would probably be no one to complain, and the issue would go by the bye. The reality is that the unborn child has no complaint process. There is a lack of transparent information, and no real safeguards. It is up to Parliament to deal with that, and we must seize on it in this debate and beyond by speaking up for the voiceless, ensuring that we respect life and at least to ensure that the Abortion Act contains safeguards with proper meaning and proper force.

[Mark Pritchard (in the Chair)]

Five hon. Members have indicated that they wish to speak, and I do not want to impose a time limit so I hope that colleagues will be mindful of others, given that I want the wind-ups to start at 3.40.

14:50

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Member for Enfield, Southgate (Mr Burrowes) on bringing this important matter to the Chamber. I fully support what he said, and the number of hon. Members present indicates the amount of moral and physical support in the House. The legislation in Northern Ireland is different from that on the mainland and makes procuring an abortion more difficult. I will explain the Northern Ireland perspective and add my support to the hon. Gentleman and what he seeks to achieve.

It is a good thing that we have that legislation in Northern Ireland and we do not want it changed to what exists on the mainland. Whether I agree with the law, the fact remains that it is the law and it should be obeyed. That is how our society works, and abortion law should be no different. Indeed, it should be more strictly enforced because it involves something as precious as human life.

During my time in the House and having got to know more about what happens on the mainland, I have become more and more disturbed about reports indicating that some registered doctors have allowed abortions to take place because the baby’s sex was not what the parents wanted. That is disgraceful and it angers me and many other people. It blows my mind that, after years of looking down on the Chinese for disregarding female children, we are now taking that a step further, if we follow the hon. Gentleman’s line of thought, and aborting their life. In the House, hon. Members individually and collectively as a Parliament have been outspoken about the horrific abuse of human rights in China, but it now seems that we are no different when we allow the abortion of children based on nothing more than their gender. As DNA techniques improve, I wonder whether parents who are unhappy—I do not mean this facetiously—about eye or hair colour may test for that and abort a baby at will. Where will that end? Is that the message we want to send? It is certainly not the message I want to send, and it is not one that many of the Members who will participate in this debate want to send.

I have said before in this place that 1 believe in human rights. I am on the record as having spoken on many human rights issues for Christians, for those with different religious beliefs, and for oppressed minorities. I believe in the most basic human right, which is the right to life. I believe that the strong have a duty to protect the weak and the vulnerable, and I seek to uphold that protection. It is a terrible shame that the Director of Public Prosecutions does not take the same view.

A decision not to prosecute when there is sufficient evidence to bring a prosecution is disgusting. When an opportunity has arisen to make an example and to set the bar high, as it should be, the DPP has chosen not to prosecute those who have acted outside the law by offering to abort children based on gender. It follows that the DPP’s belief is that the law does not need to be enforced and that he can pick and choose legislation that must be followed. The House should send a strong message about that. I thought the issue was for law-makers, but having heard about what is happening, I must be mistaken.

Abortion is emotive and always will be. How could it not be when it involves the most vulnerable in our community and their protection? I can understand that it may not be the role of the DPP to be emotional—or immoral— but nor is it his role to determine what is an acceptable or unacceptable breach of a law that was for good reason designed to restrict the use of abortion. Its purpose has been disregarded.

In 2011, the total number of abortions in England and Wales was 189,931, and approximately 2,729 took place at up to 20 weeks, 702 after 20 weeks, 763 after 21 weeks, 553 after 22 weeks and 565 after 23 weeks. Of that total, 778 were under ground (e), which covers substantial risk of abnormalities, as to be seriously handicapped, and exceptional circumstances. The majority of remaining abortions were carried out under ground (c), for largely social reasons, such as the after-effects of recreational sex—a term I do not use lightly. Are we now to add another category that the baby’s sex was not as desired? That is preposterous, yet the DPP would, in his decision, allow that to be a valid reason. Every law student knows the benefits of a test case. When something is not tested, it is seen to be approved. Does the Attorney-General approve of that? Perhaps he will indicate where he stands on the DPP’s role.

It is abundantly clear that there must be a tightening of the law in Great Britain to ensure that it is not acceptable for a doctor to sign off an abortion procedure without even seeing the patient. I urge that tighter regimes, such as those in Northern Ireland, are brought back to the mainland to ensure that the open door of abortion is closed. That would be good news.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Does my hon. Friend agree that problems often arise because of lack of clarity and understanding of the law? In Northern Ireland, as in the rest of the United Kingdom, the issue is often lack of clarity and understanding about what is and is not permissible. Greater clarity would benefit all concerned on either side of the argument.

[Jim Shannon]

I thank my hon. Friend for his intervention. Clearly, he is right. The problem seems to be that the DPP is not providing clarity. The law is clear, and I hope that the Attorney-General will provide clarity on that.

With its more liberal abortion law, the UK mainland has a higher rate of maternal deaths, and that speaks volumes. It is clear that Northern Ireland’s law to restrict abortion to save the mother’s life works well to save the lives of both mother and child. I cannot stand by and allow the DPP to send his message unchecked because it is important to put the issue on the record. I wholeheartedly support my colleague, the hon. Member for Enfield, Southgate, today and ask that the right message is sent from this place to those who prosecute. We deplore the fact that any medical professional would ever stretch the current legislation to allow selective abortion. The GMC has intervened, but that is not enough. The law was not designed for that and it was determined that that was not the desire of this place. We demand not only that the DPP and Attorney-General respond on that decision, but that they tighten up the law so that can never happen again. We seek that clarification today.

Some hon. Members believe that abortion is an acceptable choice for a woman, but it should not impact on the fact that the DPP, sometimes with the help of local police officers, has sometimes been quick to prosecute those who stand outside clinics with pictures of fetuses urging people to rethink their decision. Something is wrong with a law that does not enforce the existing abortion rules but allows prosecution of those who are against what is taking place.

Is that fair, right or proper? I was blessed with a good mother, who often said, “If you don’t stand up for something, you will fall for anything.” We must not fall down the slippery slope that has been created, and that should be made crystal clear today. I support what the hon. Gentleman has suggested, and I hope that the Minister will provide reassurance.

14:59

[Sir Edward Leigh (Gainsborough) (Con)]

My hon. Friend the Member for Enfield, Southgate (Mr Burrowes) must be congratulated on securing this debate, which is extremely topical and follows a great deal of reporting on this very serious issue. It is virtually impossible to be prosecuted in this country for carrying out an illegal abortion. I have found out that between 2003 to 2007, for instance, only seven people were prosecuted. It would be interesting to have more up-to-date information from the Attorney-General when he responds.

The real issue for Parliament and for this debate is whether Parliament makes the laws, or whether the Crown Prosecution Service does. This Parliament makes the laws, and clearly when it framed the Abortion Act—whatever one’s views on the Act’s merit or otherwise—it never envisaged a situation where there would be gender selection in this country. In my view, it is outrageous that in Britain today the most dangerous position to be in is that of a female fetus. That is completely unacceptable. It should not be tolerated in a free society; we should not tolerate it.

The actions of the CPS have been extraordinary. It conducted a 19-month inquiry and has conceded that the evidence is sufficient to warrant a prosecution with a “realistic prospect of conviction.” Jenny Hopkins, deputy chief Crown prosecutor for London, said that

“on balance there is enough evidence to justify bringing proceedings…This is a case-specific decision on the individual facts; it is not a policy decision of general application”.

I think we need clarification from the Attorney-General. If Parliament has framed an Act, and there is enough evidence to prosecute under it, why has the Director of Public Prosecutions decided not to prosecute?

The decision not to prosecute the two doctors in question may not specifically be a

“policy decision of general application”—

that is what the CPS is talking about—but it certainly seems indicative to us of a pre-existing policy not to prosecute. Putting it simply, the CPS has found that we have an Act of Parliament, and there is enough evidence to prosecute, but it has decided that is not in the public interest to do so. Why is it up to the CPS to determine what is in the public interest?

I remind the Chamber what The Daily Telegraph found. One doctor said:

“I don’t ask questions. If you want a termination, you want a termination.”

Another doctor was also filmed agreeing to conduct the procedure, even though he told the woman:

“It’s like female infanticide, isn’t it?”

Do we want that sort of thing to go on in this country?

The CPS claims that prosecuting the two doctors in question was not “in the public interest”. I believe that the CPS is simply wrong. It is in the public interest that laws are enforced, and if a law is against the public interest, it must be changed through the normal legislative process. If we have not framed the Abortion Act in a sufficiently clear way, it should be looked at again.

[Margot James (Stourbridge) (Con)]

My hon. Friend is making a very good case about what is in the public interest. Is he aware that India has 37 million more men than women, and that what we are debating today is the cause of that? Does he agree that whether that arises from the abortion of female fetuses or female infanticide, and whether it takes place in Bombay, Beijing or Birmingham, it is wrong?

[Sir Edward Leigh]

Yes, I am grateful to my hon. Friend—it is quite wrong. India’s 2011 census shows 7.1 million fewer girls than boys under the age of six—a gap that has almost doubled over two decades. Rather than a function of villages being backward or poor, this is a phenomenon that grows more pronounced, apparently, as Indians grow richer. Studies show that wealthier, better-educated Indians are more likely to have boys, because they can afford the newish tools of ultrasound and gender-specific abortion. In Mumbai, some clinics market their services as cheaper than dowries:

“Better 500 rupees now than 500,000 later”,

as one advert put it. We all know that weddings are expensive, but it is a shocking statement. The message is abhorrent in our eyes, and our instinct is not to look at the issue at all, but this is going on, and we do not want it going on in our country.

The General Medical Council is being strong on the issue, and we must commend it for investigating the claims of illegal activity by doctors. We welcome the statements and strong words of GMC chief executive, Niall Dickson:

“Doctors who do not comply with the law relating to abortion are putting their registration and careers at risk”.

I put it to the Attorney-General that given the infinitesimally low rate of prosecutions for illegal abortions, and given what the director of the CPS has said, we live in a situation where doctors, frankly, can get away with it. My hon. Friend the Member for Enfield, Southgate, spoke most forcibly about pre-photocopied forms going out, but it goes further than that. We know, from The Daily Telegraph investigation, that doctors are specifically, personally cognisant that they are committing female infanticide. The issue for this House—for a liberal, western society—is whether that is tolerable. I believe that it is not, and that it is now up to Parliament and the Government to take action. I look forward to the Attorney-General’s response.

15:05

[Dr Sarah Wollaston (Totnes) (Con)]

I speak as someone who firmly believes in the right of women to access a safe termination of pregnancy, but who does not believe that not liking the sex of a child is reasonable grounds to do so. I also speak as someone who has experience of sitting with many women over a number of years, counselling them and listening to their views, as they attempt to take the most difficult decision of their lives.

To help hon. Members, I have brought copies of certificate A, which is the form that doctors have to complete prior to an abortion—perhaps the Doorkeeper can pass some around. On certificate A, two doctors have to sign to say:

“We hereby certify that we are of the opinion, formed in good faith”—

then it lists a number of criteria that must be fulfilled. How on earth can any doctor form an opinion in good faith if they have signed a form, undated and unnamed, and it has then been photocopied? That goes to the heart of one reason why a prosecution could not be brought in the most recent cases, which was the issue of the variation in clinical practice. Where there was what seems to me like very clear-cut, straightforward malpractice, a decision was made not to prosecute. As a result, it has become more difficult to prosecute in the cases of alleged gender-selection abortion.

Will the Attorney-General, in his summing up, say whether the original decision could be revisited, or at the very least whether very clear guidance could be issued to doctors, saying that the practice is completely unacceptable and that, in future, they could expect to be prosecuted for it? The Care Quality Commission’s decision to deliver no more than a slap on the wrist was disgraceful. The CQC should be there to ensure, beyond doubt, that if clinics carry out the practice in future, they will be closed down, because it goes not only against the spirit of the law, but, in my view, the letter of the law, as set out clearly in certificate A.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

In her distinguished medical career, did my hon. Friend think, at any time, that because she could be taken to the General Medical Council for a failing of practice, she was exempt from the law of the land on a matter such as this?

[Dr Wollaston]

Absolutely not, but I think that all right-thinking medical professionals, on viewing this form, would reject pre-signing it, and would find it completely abhorrent that someone could pre-sign it and allow an unnamed, undated form to be photocopied. That point is very important. We also saw the scale of this; it was happening at 14 locations, so it was not an isolated event.

The guidance from the BMA’s handbook of ethics and law, which my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) referred to, is also part of the problem. The guidance begins:

“The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders.”

So far, so good. However, the guidance goes on to say:

“The pregnant woman’s views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide legal and ethical justification for a termination. They should be prepared to justify the decision if challenged.”

That is wholly unacceptable. A woman may feel under huge pressure from her family to abort a fetus of the wrong sex, but doctors should not collude in the family’s point of view and assist in a termination just because the situation may be stressful for the woman. Rather, they should explore the reasons for that pressure with the woman and protect her from undue pressure from her family; they should certainly not just collude in such attitudes, which reinforce a misogynist point of view that daughters are of less value than sons. That harms not only women worldwide, but all societies where this practice is common, including the men in those societies. There is a straightforward, strong issue of equality here.

As has been said, there is no specific exclusion for gender-specific termination in certificate A. However, we have a precedent for such an exclusion in paragraph 11 of schedule 2 to the Human Fertilisation and Embryology Act 2008, which refers to sex selection when embryos are implanted. The Act makes it clear that, other than in cases where we are trying to prevent a severe inherited medical condition, gender selection is unacceptable in the implantation of embryos. I wonder whether now is the time for an amendment to the Abortion Act to make that explicit and to put the issue beyond any doubt.

Another issue with certificate A is the wording of category A, which refers to the possibility that

“the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated”.

The statistics for maternal mortality for 2006-08 show that 107 women died from conditions directly related to pregnancy, whereas two women died as a result of complications following sepsis after the termination of a pregnancy. Will the Attorney-General clarify whether it would be possible, on a technicality, for any doctor to carry out any abortion on demand because of that difference? Technically, it could be argued that every abortion could satisfy section A of certificate A.

It is perhaps time for us to issue greater clarification of what would constitute unacceptable grounds. It is perhaps time for us to have a wider debate about that. As I said, I speak as someone who firmly believes in a woman’s right to access safe abortion, but not to access it on grounds that, in my view and the view, I think, of the vast majority of the public, would harm women’s rights and make misogynist attitudes more acceptable.

In a number of cases, we have seen that people have a natural tendency to shy away from awkward situations. We saw that in Rochdale, in different circumstances. When we drill down and look in greater detail at the possibility that gender selection is happening in this country, we see that, although there does not appear to be a distortion in the gender statistics overall, that could be the case in certain communities. We should not, therefore, take the view that these things are not happening in the UK, because they could well be, and we need to put the issue absolutely beyond doubt in law.

15:14

[Fiona Bruce (Congleton) (Con)]

Honourable Members, has it come to this? People in this country have spent 40 years fighting discrimination, but no action is to be taken when one of the most blatant forms of discrimination—the deprivation of life on account of being a girl—is highlighted. I congratulate my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) on bringing forward the debate, and I entirely agree with him that the time has come to review the moral, legal, ethical and practical framework in which the Abortion Act operates.

This is not the only form of discrimination against the unborn child in this country. Over the course of more than a year, the cross-party parliamentary inquiry into abortion on the grounds of disability, which I had the privilege of chairing and which published its report in July, took evidence from 300 witnesses. The full report can be seen at the website abortionanddisability.org. Just as people are shocked that abortion can be allowed on the grounds of sex, people we spoke to were shocked to discover, in an age when we go to extensive lengths to accept, support and respect disabled people, seeing them as wholly equal, that a child can be aborted right up to the moment of birth on the grounds that they may be disabled. In contrast to the situation for non-disabled babies, there is no 24-week time limit. Indeed, we heard that many expectant mothers felt funnelled into having an abortion when they were told that they were expecting a potentially disabled child.

The inquiry highlights the lack of clarity in the abortion regulations about what constitutes a serious disability. Some mothers who were told they were expecting a disabled child told us the diagnosis was wrong. Others were told that abortions would be allowed on the grounds of a cleft palate or a club foot, and indeed they can be. Those are minor disabilities, as I know, because I have a son with a club foot. In an era of enormous support for the disabled and their families, we cannot allow this form of discrimination to persist. We must take action to review it.

Equally, we must take action to prevent any hint of discrimination against an unborn child on account of their sex. We have had much more than a hint that this is happening; we have the investigation from The Daily Telegraph. The time it took to look into that investigation—19 months—is deplorable. In his statement of 7 October about the investigation, the DPP said:

“on balance, there is just sufficient evidence to provide a realistic prospect of a conviction.”

We are talking about conviction for a criminal offence, according to the Offences Against the Person Act 1861. What kind of message does that decision send? It sends the shocking message that authorities in this country will turn a blind eye to involvement in acts preparatory to the commission of an unlawful abortion—authorities in whom trust is vested to apply and uphold the laws made by this Parliament.

The reason the DPP gave for not proceeding with the prosecution was that it would not be in the public interest. Prosecutors have also pointed out that the issue has become sensitive and political. How can it not be in the public interest to state firmly and clearly that abortion on the grounds of a child’s sex is wrong? It is wrong morally and legally, and if the law is not sufficiently clear on this point, it is our duty as parliamentarians and politicians—I see nothing wrong in politicians being involved in this issue—to make it clear.

The grounds on which an abortion is legal have never included the sex of the child, and that is true not just in this country. The UN convention on the elimination of all forms of discrimination against women, which the UK has ratified, is a legally binding treaty in UK law. The convention recognises the right to choose the “number and spacing” of one’s children, but not the sex. International law is very clear: sex-selective abortions are not legal.

We recognise that in this country when we fully condemn China’s one-child policy, which has resulted in a disproportionate number of young men, running into the millions. The ratio of young men to young women in many parts of China is now 30:1. This country prides itself on respecting human rights, and we cannot be so hypocritical as to condemn that policy and then do nothing when such things occur within our own borders. I said that there was more than a hint that that is happening; in January 2013 I tabled an early-day motion, citing

“recent confirmation by the Department of Health that there are discrepancies in the balance between the number of boys and girls born to groups of women from some overseas countries to an extent that”—

in the Department’s words—

“‘falls outside the range considered possible without intervention’”.

The motion called on the Department of Health to put procedures in place to address the issue, and it was supported by more than 50 parliamentarians. There are a number of parliamentarians here today, but I know from the EDM alone that there are far more who support the views that have been expressed today.

There is further evidence. Dr Vincent Argent, a former medical director of the British Pregnancy Advisory Service, has been quoted as saying that the practice is “fairly widespread” in the UK; and there are data from Dr Dubuc of the university of Oxford, who has studied the issue for 35 years, suggesting that sex-selection abortions are happening with increasing regularity among certain groups in the UK because of the increasing availability of technologies to determine the sex of an unborn child. The statistics show that the practice is particularly prevalent when a third child is expected.

[The Attorney-General (Mr Dominic Grieve)]

I should explain that I have only Department of Health statistics to go on, but this may be helpful. As far as the UK as a whole is concerned, the statistics on gender balance in births fall squarely within what are regarded as acceptable norms. As to mothers who were born in other countries, there is, with only one exception, no clear evidence of such a divergence from the norm. Interestingly, the country in question is Sri Lanka and, curiously, the birth ratio for mothers born there is 99.2 male children for every 100 female children, which suggests the opposite of what my hon. Friend is talking about. There again, however, there is nothing to suggest that the ratio is outside the statistical norm.

[Fiona Bruce]

If my right hon. and learned Friend will allow me, I shall send him Dr Dubuc’s data and research, which show figures that at least need to be looked into.

I ask for not only Ministers but the British Medical Association to take action. The 2012 third edition of its guide, “Medical Ethics Today”, does not clearly prohibit sex-selection abortions. The doctors we heard of in the investigation by The Daily Telegraph clearly felt uncomfortable. I should have thought it would help the many other doctors who might feel uncomfortable in such circumstances if the BMA medical ethics committee were to take a clear stance against the discriminatory practice in question, and support practitioners accordingly. As to the reference by the Director of Public Prosecutions to the General Medical Council taking action on the investigation by The Daily Telegraph, it is worth remembering that the GMC has no powers on criminal actions and cannot prosecute breaches of the law.

Finally, in April, I presented a ten-minute rule Bill on the very issue that we are debating. It was interesting to note that there was no opposition from any Member of the House. My purpose was to raise the issue and to remind the police and Crown Prosecution Service that abortions on the ground of gender are illegal in this country. My Bill called on the Department of Health to establish procedures to record the gender of babies aborted under the Abortion Act 1967, when the sex can be determined, and to consider a review of the penalties for anyone found to have facilitated the abortion of a child because of their gender. The United Kingdom prides itself on striving for gender equality and tackling discrimination in all its forms, and any indication of that most fundamental form of gender discrimination and violence against women must surely be investigated further.

15:24

[Neil Parish (Tiverton and Honiton) (Con)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I thank my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) for bringing the matter to the Chamber today, because it is a serious issue. I cannot believe that in the 21st century, in this great country, we are having this debate; I would not have believed that gender-selection abortions were possible here.

Many hon. Members have said that the unborn child has no voice, and appears to have very few rights in the context we are discussing. I am not a lawyer or doctor, but my hon. Friend the Member for Enfield, Southgate, who has a legal background, made many good legal points, and my hon. Friend the Member for Totnes (Dr Wollaston), with her medical experience, spoke from a medical point of view. I shall be simple and straightforward in my remarks. If the law is not adequate to stop the practice in question, it must be changed. If it has not been properly interpreted and enforced, it must be. It is up to the Attorney-General to make sure that that happens. If my accountant signed a form and allowed me to fill it in for my farming business and send it to the tax authorities, although it was all completely wrong, we would both be prosecuted. Yet here we are, talking about the actions of doctors in various places. Most doctors act very honourably, but there are a few who have not. They cannot just photocopy forms and allow someone else to fill them in.

Some lawyers and the CPS argue that practice is so lax that it is not possible to prosecute. What on earth is going on? I am not a lawyer, but I have some faith in the law of the land. However, why should people have faith in it, if shoddy practice allows perfectly healthy babies, of whatever sex, to be aborted? I shall be completely honest and open: I do not like abortion. I think it is carried out far too late, and I do not much like its being carried out at all. I accept that in exceptional circumstances, when there are very serious problems with a fetus, there could be an argument for it to be aborted; but not just because it does not suit someone’s lifestyle, religion or background.

I shall again say something a little controversial. Is it perhaps because the issue has something to do with race that we do not want to tackle it? Are we running scared because we live in this very politically correct world? Well, if that is the result of a politically correct country, I do not want to live in this role. This Parliament is about common-sense rules that are enforced. I am totally amazed and saddened that we must have this debate.

I will finish with my question to the Attorney-General. What is wrong? Is it the fact that the law is not correct as it stands, and we cannot stop people asking for abortions on the basis of the baby’s gender?

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

The hon. Gentleman may understand that those of us who are strong supporters of a woman’s right to a legal, safe abortion, and also of the notion that we should respect other cultures, find the notion of gender-selective abortion impossible to support, for the reasons that other hon. Members have given. It reinforces patriarchal and oppressive ideas in society. I found the time to attend this debate because it is important that we unravel the issue; but I want to make the point that it is not only those who are anti-abortion in principle who have a problem with sex-selective abortion.

[Neil Parish]

I very much respect the hon. Lady and thank her for her intervention. I am not here to make particular points about people’s backgrounds, but I emphasise that the issue, now, is how it is possible for this issue to have arisen in this country. Most people would say that the idea of having a baby aborted because of its gender is wrong; and that brings me to my final comments.

Is the law as it stands inadequate? If so, I ask the Attorney-General to consider ways to change it. If the law is adequate, why is no one being prosecuted? Why is it that forms can be signed in hospital and the doctor can have retired from that position, but the forms are still being used to carry out gender-selection abortion? Someone is wrong—someone has got it wrong. We, as a Parliament, must ensure that the law is upheld and, if we are not satisfied that the law is adequate, we must change it so that it is. I would be very interested to know what the Attorney-General believes and what he sees as the solution to this problem, because, I repeat, I do not believe that in the 21st century, in this United Kingdom, we should be in any way, shape or form allowing gender-selection abortion.

15:30

[Emily Thornberry (Islington South and Finsbury) (Lab)]

On 5 September, the Crown Prosecution Service issued a statement justifying its decision to take no further action regarding two doctors who had been caught in a Daily Telegraph sting allegedly assisting an undercover journalist to procure an abortion on the grounds of the gender of the fetus. The original statement started with a statement of the law:

“The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender.”

That, incidentally, is how I would read the law. The statement went on to say that although the case was not straightforward,

“on balance there is enough evidence to justify bringing proceedings for an attempt.”

The plain English reading of that is that there was enough evidence to prosecute for an offence of procuring an illegal abortion purely on the basis of not wanting a child of a specific gender. But the decision not to prosecute was taken on the grounds that it would not be in the public interest. The CPS said:

“Taking into account the need for professional judgement which deals firmly with wrongdoing, while not deterring other doctors from carrying out legitimate and medically justified abortions, we have concluded that these specific cases would be better dealt with by the GMC rather than by prosecution.”

The statement added that

“when looking at the culpability of the doctors in this case, we must take into account the fact that doctors are required to interpret the law and apply it to”

a

“range of sensitive and difficult circumstances which are not set out in the legislation.”

The statement concluded by attaching weight to the level of harm to the victim, which in this case was none as no abortion took place.

I found the statement very disturbing and that day wrote to the Director of Public Prosecutions to request him to review the decision not to prosecute. My first objection was that I could not understand how it could be in the public interest not to prosecute in respect of an abortion that was carried out on the basis of gender alone. Gender-based abortion is part of a complex of misogynistic beliefs and practices to which we cannot give an inch. Along with female infanticide, it is the purest expression of the belief that the male is more valuable than the female, for invariably gender-based abortion involves the destruction of female fetuses; we do not hear of male fetuses being aborted.

Women are not the weaker sex. We are not a curse. We are not a burden to be disposed of as a family sees fit. What is more, people have to be completely myopic not to see that if it becomes known that doctors are taking a no-questions-asked attitude to gender-selective abortions, women will be pressurised into having them. Gender-selective abortions are at root an exercise of patriarchal and communal coercion, not female choice.

[Jim Shannon]

I want to ask a question of the hon. Lady in her position as shadow Attorney-General. Is it her opinion that the decision not to prosecute should be reviewed, and could it be reviewed by the Attorney-General?

[Emily Thornberry]

If the hon. Gentleman will hold his breath, I will get there. In my view, it is not in the public interest for us to behave in this way. We must make it absolutely clear that, as a country, we have no truck with this. I am a staunch advocate of women’s right to choose, but I do not accept that that corners me into supporting something as plainly monstrous as gender-selective abortion.

I am also concerned that if the public see abortion as being used for gender selection, support for abortion will erode. In my view, there has been and remains a clear majority, albeit a silent one, in favour of abortion, and their views are reflected in the very thoughtful contributions made today by the hon. Member for Totnes (Dr Wollaston) and my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott). We must not play into the hands of the likes of those who claim that the most dangerous situation to be in in Britain today is to be in a womb and to be a female. We need to take a sensible view of this.

My second objection, which was echoed at the time by the former Director of Public Prosecutions, Lord Macdonald, was about the amount of deference that the CPS seemed to be showing the medical profession. The CPS seems to believe that doctors can have the discretion to disapply the law in their surgeries. It seems to me that when a roofer breaks the law, he is hauled into court and faces the prospect of prison. When a doctor does, he should also be hauled into court and should not simply be heard by a panel of his peers with no criminal powers. That is taking the idea of “Doctor knows best” far too far. The rule of law has to apply to all equally; otherwise, it is meaningless.

Following the outcry, the DPP, Keir Starmer, has issued a statement seeking to explain further the reasoning behind the decision. That statement, which comes a full month later, introduces a number of new lines of argument, while quietly dropping some of the old ones. Mr Starmer now tells us that the evidential threshold for the allegation that this was a gender-based abortion has not been met. He says that that was because other factors were alluded to during the discussion between patient and doctor. Instead, the matter hinged on whether the doctors fulfilled their duty under the Abortion Act to carry out a sufficiently robust assessment of the risk to the pregnant woman’s mental and physical health to reach a good-faith opinion that the continuation of the pregnancy would involve a risk, greater than if the pregnancy was terminated, to the woman’s mental and physical health. The director explains that there is no guidance on how a doctor should assess that and therefore no yardstick by which to measure whether the doctors’ assessments fell below a standard that any reasonable doctor would consider adequate. The director concludes that it would be of questionable public interest to prosecute amid such uncertainty.

That is a more elegant and persuasive way of hoofing the matter back to the GMC. Gone is any suggestion that we will not prosecute criminal attempts because the victim is unharmed. Gone is any impression given by the earlier statement that the very fact of the GMC’s involvement is sufficient and that the criminal courts need not be involved. Gone is any suggestion that it is somehow okay for doctors to abort fetuses merely because they are female.

I am reassured by the director’s statement that had the decision boiled down to one of whether to prosecute on the basis that the doctors attempted a gender-specific abortion,

“there might be powerful reasons for a prosecution in the public interest”.

To my mind, the director’s statement illustrates the need to ensure that the DPP personally signs off all decisions about prosecutions under the Abortion Act 1967, whether those decisions are in favour of or against prosecution. I hope that the Attorney-General can assure the House that that is what will happen in future.

[Mark Pritchard (in the Chair)]

Before I call the Attorney-General, I note, just for Hansard, the unusual circumstances in which we have present at the debate three Ministers: the Minister responsible for public health, the hon. Member for Battersea (Jane Ellison); the Solicitor-General; and the Attorney-General.

15:37

[The Attorney-General (Mr Dominic Grieve)]

It is a great pleasure to serve under your chairmanship, Mr Pritchard. I congratulate my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) on securing the debate.

Investigative journalism plays an important part in a vigorous and healthy democracy. The Daily Telegraph has done a very important public service in bringing these issues before us today. The debate has been a characteristically thoughtful one, as befits matters touching on the criminal law, personal health and dignity, ethics and moral issues, professional standards and the wider public interest. I am grateful to the hon. Member for Strangford (Jim Shannon), my hon. Friends the Members for Gainsborough (Sir Edward Leigh), for Totnes (Dr Wollaston), for Congleton (Fiona Bruce) and for Tiverton and Honiton (Neil Parish) and the hon. Member for Islington South and Finsbury (Emily Thornberry), who have all made contributions, and to those right hon. and hon. Members who have intervened.

The cases highlighted by The Daily Telegraph were much debated at the time of the original CPS decision not to prosecute. The terms of that debate may have given the public the impression that this case was about medical practitioners offering abortion on the basis of the gender of the child. On that basis, it may well have seemed incomprehensible that the full force of the criminal law was not being brought to bear on a practice that most people would regard as abhorrent. I certainly do and I think that everyone in this room does. But as I hope to make clear and as I hope has been made clear by the DPP’s explanation, that is not in fact what these cases are at root about.

The DPP has recently published detailed reasons for the CPS decision. I urge all right hon. and hon. Members to read his account very carefully, if they have not already done so. It is absolutely right that prosecution decisions are taken by independent prosecutors on the facts before them and free from political influence. That is what entitles the public to have confidence in those decisions. However, it is also important that the public should be able to understand the decisions and, where that is not straightforward, that prosecutors make a special effort to explain them. This was obviously such a case, and I am particularly pleased that the director has taken the time and trouble to review—I requested him to do so—the decisions personally and to set out fully the reasoning that led him to endorse the conclusion that it would not be right to prosecute.

[Mr Burrowes]

Will the Attorney-General give way?

[The Attorney-General]

In a moment; I was going to answer the two questions raised by my hon. Friend. First, the director did not make the initial decision not to prosecute, but he was consulted, as is normal in complex and sensitive cases. The answer to the second question, on whether I was consulted on the decision before it was taken, is that I was not. The case was not raised with me by the director prior to the decision not to prosecute being taken. In my view, it should have been, and on reflection, the director accepts that he should have done so. Before that leads to an inference that therefore the decision might have been different, I simply make the point that as I asked the director to review the decision completely and I had ample opportunity to consult with him before he did so, I am satisfied that the decision that has now been reached, which I will come on to in a moment, would have been the same had that process taken place in the first case.

[Mr Burrowes]

Does my right hon. and learned Friend the Attorney-General agree that in hindsight it would have been appropriate for the DPP to be involved at an earlier stage, to respond to the question raised by the shadow Attorney-General, and should not all future investigations of allegations of contraventions of the 1967 Act involve the DPP at that earlier stage and proper consultation with my right hon. and learned Friend?

[The Attorney-General]

As my hon. Friend will appreciate, the DPP himself does not under the statute have to give consent. Nevertheless, I am sure that the DPP will have noted my hon. Friend’s comments—representatives of the Crown Prosecution Service are here. It is clear to me that this is an important issue in a difficult area, which I will come on to in a moment. I trust that his comments are noted, but he will appreciate that the decisions are ultimately for the DPP, not me.

The director’s reasons speak for themselves. I am satisfied that this difficult decision was taken properly and conscientiously. The responsibility of taking such decisions is a heavy burden, which few of us would relish. I would like to take the opportunity to pay tribute to the distinction with which the current director has fulfilled an onerous and difficult series of public duties over recent years, particularly as his term of office is drawing to a close.

The hon. Member for Strangford asked whether I agreed with the decision taken by the director. I emphasise the point I made: I am clear that it is not my role as Attorney-General to second-guess the decisions of independent prosecutors. These were difficult decisions on which different prosecutors could reasonably have come to different conclusions, but I am entirely satisfied that this difficult decision was taken properly and conscientiously.

I shall say a little more by way of context. First, abortion law in this country, in my judgment, is workable, but needs to be understood. I should perhaps emphasise that the law is not framed in terms of prohibiting gender-specific abortion or indeed listing any other forms of unlawful abortion. It works, or was intended to work by Parliament, by providing for abortions to be performed safely, by qualified medical practitioners, when those practitioners judge it to be in the medical interests of the patient and where that is the course that the patient herself agrees is right. Two medical practitioners must on each occasion have formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination. That is our guarantee, as provided by Parliament, that we have a system of safe and lawful abortion provided by the 1967 Act.

[Neil Parish]

Is my right hon. and learned Friend saying that he believes the law to be correct as it is? If that is the case, why is abortion being allowed for gender selection?

[The Attorney-General]

I think my hon. Friend might misunderstand. We can have a long moral and ethical debate about the workings of the 1967 Act, as we have had in Parliament—I dare say that many in the room will express different views on the Act and all sorts of connected aspects—but that would be about an issue of policy. The question I am dealing with in this debate is whether, within the framework of what was intended by the 1967 Act, it is possible to enforce the law as Parliament intended it to be. I hope I will be able to develop that thought in a moment.

My hon. Friend the Member for Gainsborough asked about the statistics on those prosecuted under the 1967 Act. Since 2010, there have been 25 prosecutions, and he is right that none has been of medial professionals for failure to observe the terms of the 1967 Act.

[Jim Shannon]

As I asked the shadow Attorney-General, in light of the disquiet expressed by Members today and the disquiet outside the House, would the Attorney-General agree to a review of the case?

[The Attorney-General]

So far as this case is concerned, the decision is that of the CPS. For me to overturn or review somebody else’s decision in a case in which the decision does not fall on me would be wrongful interference in the independence of the prosecution and its discretion. As far as I am concerned, the function I have has been performed, in that there has been a review by the DPP of his decision and he has been able to explain it fully in the explanation he has provided. As I have already indicated, I do not consider anything to be in any way improper or unreasonable in that explanation or in how he has approached the matter. If the hon. Gentleman will let me develop my argument, he may understand why that is the case in a moment.

The question in this case is not about proving whether gender-specific abortion was being offered on demand. It was about whether the doctors had done what the law requires, which is to reach an opinion in good faith about the consequences for the patient of continuing with or terminating a pregnancy. I appreciate that abortion gives rise to strong views based on ethical and philosophical differences, and I have no doubt that it will continue to be the subject of much public debate, but the issue for the prosecutor is the law as it stands.

[Neil Parish]

Is that not semantics? Is the Attorney-General saying that doctors are not prosecuted because they took the decision that abortion due to gender selection was all right in theory because the mental health of the mother might be affected or based on some other grounds that are acceptable under the 1967 Act? That seems to be pure semantics.

[The Attorney-General]

I am sure that my hon. Friend has had an opportunity to read the full note produced by the DPP. It sets out in detail, which I do not have time to go into this afternoon, the evidence in the case of each doctor presented to the CPS. My hon. Friend will appreciate that it is important that the evidence in each case is looked at separately. The DPP goes through it in detail and explains that the issue is not gender-specific abortion. If somebody says to a doctor without more ado, “I want an abortion on gender-specific grounds,” and the doctor says yes, the case might be a clear-cut matter to prosecute because the grounds fall clearly outside the ambit of the 1967 Act. The section of the Act with which we are concerned is about the physical and mental health of the woman. It is about good faith, in that it is for the doctor to satisfy themselves that any abortion falls within the criteria. If my hon. Friend looks at the matter in detail, he will see why the director came to the conclusion he did, which I will address, but in briefer terms.

The CPS concluded, with some difficulty, that there was just enough evidence available in the cases to bring the good faith of the doctors into issue. I think that the hon. Member for Islington South and Finsbury was wrong when she said in her final statement that the position had changed. The DPP’s statement of reasons says, nevertheless, that the evidence was not strong in either case and the prospects of conviction would not in his judgment have been high on the facts as they appeared. The matter does not rest there. Even in a case that just about passes the evidential threshold, the CPS is obliged to consider whether a prosecution would be in the public interest. That is one of the tasks that we require it to do. The fact that an evidential threshold is passed—a point raised in the debate—does not mean that a prosecution has to, or indeed should, follow.

The decision was that prosecution did not pass the public interest threshold. It is that aspect of the decision that raises wider issues of public policy, some of which we have debated today, which I accept are an entirely legitimate topic of debate. The issue, as I see it, is this. Because the law makes the difference between lawful and unlawful abortion subject to a medical test, doctors have to be able to carry out that test on a case-by-case basis according to proper medical standards of care, skill and judgment. That is, effectively, what the test of “good faith” in the 1967 Act means. Doctors are required by law to make such decisions to a proper professional standard. If a question arises about whether a doctor has done so in any given case, a law enforcement agency must look to approved medical practice for assistance in identifying the proper standard. The same thing applies in virtually every case involving professional standards. Dare I say it, it would apply even in the case of a plumber who carried out some work that led to a catastrophic outcome.

[Sir Alan Beith]

It would surely not be right in such circumstances merely to demonstrate that other plumbers engaged in conduct that did not meet professional standards, and no more would it of doctors.

[The Attorney-General]

I reassure my right hon. Friend that that is certainly not the case. Ultimately, in any case, the jury decides, not the experts. One would normally expect a jury to be given some indication of the professional standards expected in a profession—there may even be rival professional views about what the standards should be—in order to help it decide.

Such a problem might not arise in an extremely clear-cut case. We might imagine a case in which a doctor behaved in a way in which no reasonable practitioner would behave, for example by arranging a medical abortion for a patient about whom he or she knew nothing and whom he or she had never met or spoken to. In any other circumstances, however, the CPS would need, and would expect to be able, to refer to medical consensus to determine whether a proper professional approach had been taken.

When they are looked at in the kind of detail considered by the prosecutor, the cases that we are debating are not extreme ones in which the doctors behaved as no reasonable practitioner would behave. Complicating factors were raised by both the patients and the doctors, who subsequently had to take the decisions. There were, as we have discussed, no detailed professional rules or step-by-step guidelines telling doctors how to take such decisions; the matter was left to general professional standards and ethics. The CPS, therefore, had no detailed consensus to help it to evaluate the matter.

To prosecute would have been to ask a jury to decide what steps a doctor should take. Juries take difficult decisions robustly, and sometimes they have to find their way through conflicting medical evidence. Is it right or fair, however, to ask a jury to arbitrate on a question of medical standards and ethics on which the profession has not published a detailed consensus, and on which a great deal turns for both doctor and patient? The CPS concluded in the recent cases that it would be contrary to the public interest to proceed.

Those who have the relevant policy and professional responsibilities are, no doubt, reflecting on the conclusions to be drawn. The Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), is present for precisely that reason. As the House will appreciate, these are not my responsibilities.

[Mr Burrowes]

I recognise that in such cases, because of the level of uncertainty, it is questionable whether a prosecution would serve the interests of justice. When more certainty has been achieved through the publication of guidance, will the Attorney-General undertake to review the matter and consider whether further guidance is required to provide clarity on prosecution?

My supplementary question is to ensure that the Attorney-General does not get off the hook without commenting on another issue. The CQC has provided evidence of 14 hospitals where—forget “good faith”—doctors were not even present when forms were signed. Surely the Attorney-General must ask why no prosecutions occurred in such cases, which go way beyond questions of guidance. They are malpractice and a flagrant abuse of the Abortion Act 1967, and they must lead to prosecutions.

[The Attorney-General]

I hope I may be able to reassure my hon. Friend. On the second matter that he raises—it is not germane to one of the cases, although it was to another—as he knows, the evidence revealed that the pre-signing of forms was quite widespread. I understand that that practice has now been stopped, and that clear guidance has been issued as to its undesirability. That is a policy issue, and I have no doubt at all that as a result, the requirements set down by professional standards have already been clarified.

I turn to the more general point. There are two ways in which we can move forward. We might take the view that the current situation is, overall, a satisfactory one, in which professional medical discretion, which must inevitably be relied on, is left at large, with the law enforcement agencies acting as a back-stop for the most egregious cases that flout any conceivable proper standards. The other view, which I understand that the Department of Health has accepted, is that such a situation allows law enforcement far too residual a role and that the balance needs to be redressed. The law enforcement agencies will need clearer and more specific guidance on how to distinguish between desirable and undesirable professional practice in making and recording decisions on the termination of pregnancy. I greatly welcome that, and I have no doubt that it will make the task of prosecutors much easier.

[Mark Durkan (Foyle) (SDLP)]

The Attorney-General has rightly said that we should not second-guess a prosecutor, the professional judgment of a doctor or the position of a jury when taking evidence. We can, however, second-guess ourselves as legislators. During the passage of the Human Fertilisation and Embryology Act 2008, we were assured that gender selection would not be permitted as a ground for abortion, and that a proposed amendment to that effect was redundant. I am sure that that was said in good faith, and the amendment was withdrawn on that basis, but do we not have cause for consideration in that area?

[The Attorney-General]

It is quite clear from a reading of the 1967 Act that gender selection alone is not grounds for the termination of a pregnancy. The debate has highlighted policy issues, which Parliament can debate further if it wishes, about how the question of gender selection may carry some weight in respect of, in particular, the impact on a woman’s mental health of continuing with a pregnancy. That is inherent in the drafting of the legislation, which places a great burden of responsibility on the medical profession to carry out a specific assessment, under the subsection that, as we know, is the most relied on as the justification for a termination.

It would be wrong of me, in the course of this debate, to start re-examining something that is a policy issue for Parliament. I have done my best to answer the question, which is whether the law as it stands is workable and can be made better. I have already indicated that if, as I understand to be the position, the General Medical Council produces such guidelines, they will be of immeasurable assistance in providing a benchmark for how doctors are expected to make the assessments required under the 1967 Act.

The Director of Public Prosecutions has informed me that he would be more than happy for his officials to comment on the practicalities, from a prosecutorial viewpoint, of any amended arrangements, should that be thought necessary. I can see that that might be of great practical value. I hope that I have been able to provide hon. Members with some reassurance.