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Baroness Knight of Collingtree
To ask Her Majesty’s Government what steps they intend to take to investigate reported law breaking by those carrying out terminations of pregnancies.
Baroness Knight of Collingtree (Con)
My Lords, normally, when a Bill has been debated, taken through Committee and approved by both Houses, it is signed by the Queen and becomes an Act. After that, those breaking it will face possible arrest, fines or even imprisonment—unless it is the Abortion Act 1967. I well recall its passage; there were firm reassurances that its strictures would not permit abortion on demand. Today, more than 7 million abortions later, we have exactly that. So much has the Act been watered down and its safeguards ignored that it is now being quoted to warn those who will soon vote on euthanasia. It is an apt comparison because both deal with life and death. The warning is that the triple lock of the Falconer Bill is modelled on the wording of the old 1967 Act and will turn out just as ineffective.
The Abortion Act is four pages long and contains only seven sections. At least four seem to be broken regularly, yet it is impossible to get details of investigations into this law-breaking or about any resulting prosecutions. Section 1 lists a vital condition on which abortion became legal: that two doctors must see and examine the patient and certify that the operation would be legal. The object of that was to ensure that—on such a serious matter as the death of a child—a second opinion had been sought and two doctors separately concurred. Last year, the NHS’s own inspectors found bundles of forms signed by doctors in 14 hospitals, certifying that they had seen and examined the patient. Their medical and independent judgment agreed that she met the conditions for a legal abortion. All these doctors lied. I understand that there were 76 of them. They had neither seen nor examined the woman; they and the doctors who subsequently performed the abortion broke the law. Falsifying official forms is perjury.
Never, until now, has it been acceptable to pass the job of dealing with law-breakers from the British courts to those representing the professions or trade unions of the very people breaking the law. The GMC dealt with that case, which would have been fine if it had just been a question of medical ethics but it was not—it dealt with the law of the land. The medical profession is now saying that since it thinks that a second opinion is unnecessary, it will not seek one. Surely it must be Parliament, not doctors, that decides what the law says. The Act is unequivocal: involving two doctors is its first condition. Nowhere does it give a proviso that any part can be ignored if anyone disagrees.
Section 1 also rules that no abortion is legal unless the woman’s heath or mental state would be at risk without one, or if her existing children faced physical or mental abnormalities of some kind if she did not have it. Are such judgments routinely made? I have met and talked to a number of girls who have had a termination. Not one has ever been able to tell me of tests or questions about that, or checks on their children’s likelihood to be made ill, mad or slightly mad. Very few of those I spoke to had any children at all.
Then there is Section 4, giving everyone the right to refuse to take part in an abortion if they have a conscientious objection. That is the law. The truth is that the NHS does not and will not employ any midwife who has such an objection. A very senior doctor in this House told me only last week that large numbers of them have emigrated. I have never heard even a whisper of any legal action against those who break Section 4. Why is that? The Act certainly does not deny a conscientious midwife the right to a job.
What investigations are being done on allegations and evidence that abortions happen because the unborn child is a girl? Last week, the Prime Minister stated firmly and clearly that that was illegal. If it is, surely checks should be going on into whether these reports are true. I wonder whether his statement was based on the words of my noble friend Lord Howe:
“Abortion on the grounds of gender alone is illegal … The Abortion Act is very clear on that point”.—[Official Report, 12/2/14; col. 639.]
I have checked the Act a number of times and all the amendments very carefully. There are no such words or clarity in the whole lot of them. It would amaze me if there had been, for none of us dreamed then that it would become possible to know the sex of an unborn child. The noble Lord, Lord Steel, would never have sanctioned gender abortions.
Abortion law surely lacks clarity on matters that need to be clear. Furthermore, it suffers from those who play with words to the extent that it permits terminations that were never intended to be legal. In no way do I seek in the debate this afternoon to discuss the right and wrongs of abortion—there are many different views in this House on that. I do not mean to go into any of that. All I ask is that the law, as passed by Parliament, should be clear and upheld. Surely that is not an unreasonable request.
Lord Gordon of Strathblane (Lab)
My Lords, I start by thanking the noble Baroness for securing this debate. She will forgive me if, for reasons of time, I am not more fulsome in those thanks. I also thank the staff of the Library, who have produced a very helpful briefing note.
Debates on abortion are fairly rare, for the obvious reason that they are seldom debates. Discussion is polarised between those who regard abortion as a form of retrospective birth control and those on the other side who regard it as a form of anticipatory infanticide—and never the two find common ground. I hope that today might be an exception, because I think we are all united that abortion for gender selection reasons is wrong—the question is what we do about it. The noble Baroness has already quoted the noble Earl, Lord Howe, and Ministers in the other place, and it is clear that the Department of Health has echoed that point of view. In fairness to the former Director of Public Prosecutions, who has so far refused to prosecute anyone, it is worth while quoting what he says in defence of the department:
“I am bound to observe that the limited medical guidance; the approach apparently endorsed by the HAS/1 form that an abortion can be performed without either medical practitioner having actual direct contact with the woman requesting an abortion; and the past practice of pre-signing HAS/1 forms present real difficulties in bringing a prosecution of doctors for failing to carry out a sufficiently robust risk assessment of their patients in cases such as these. Whether the current arrangements should be altered or tightened is, of course, a matter for others”.
I hope that we will discuss today how we can address those legitimate points raised by the DPP. It would be helpful if the Minister would indicate that the practice of pre-signing forms will be outlawed from now on, and confirm the figures as regards doctors actually seeing a patient before signing an abortion form. Questions on this issue were asked in the House of Commons by Sir Edward Leigh in successive months—I think on 13 January and 13 February. On one occasion he was told that only 46% of doctors had seen the patient in these circumstances. He was subsequently told that the Government did not have the figures because they were not available. Will the Minister clarify whether the figures are available?
I hope we are all in agreement that the real problem is that Section 1(1)(a) is so widely drafted that it permits abortion on demand. That was certainly not what the promoters of the 1967 Act wanted. However, on the other hand, some Members of the House of Lords may want that now, in which case I hope they will bring forward legislation and introduce that measure by the front door, not the back door.
Lord Ahmad of Wimbledon (Con)
I remind noble Lords that this is a time-limited debate and that all speeches should be limited to two minutes.
Baroness Barker (LD)
My Lords, I thank the noble Baroness, Lady Knight of Collingtree, for initiating the debate. This is a subject on which she and I hold very different views, but I admire the vigour with which she pursues her very strongly held convictions.
We are having this debate at least in part because of the ongoing campaign by the Daily Telegraph and the sting operations which it has mounted in support of that. Noble Lords will have seen the briefing from the Library. I think it is evident from that that the law is being upheld and that the DPP has yet to find a case where the law has been broken in this regard. It is also clear that the professional bodies—the GMC and the BMA—are dealing toughly with any professional about whom there is the remotest suspicion that they may not be upholding the law in full.
I want to make just one simple point. The NHS is under enormous pressure, particularly as regards maternity services. Given that, there is a legitimate question as to whether or not it is necessary to continue to require two doctors to authorise a procedure in this regard. I am not asking for the law to be changed on the basis of opinion but rather that research is done—that is, comparative research with regard to other countries where the authorisation of two doctors is required—to see whether scarce resources could not be used more effectively in advancing the healthcare of women and children. I am not asking for the law to be changed in any other respect. I think the other four criteria that have to be met should remain. I simply question whether, in this day and age, it is still necessary for two doctors to make that decision.
Baroness Hollins (CB)
My Lords, as a mother with daughters and granddaughters, I find it unbelievable that aborting on grounds of female gender is not explicitly illegal; it certainly seems discriminatory.
As immediate past president of the BMA, I quote its guidance that,
“it is normally unethical to terminate a pregnancy on the basis of fetal sex alone, except in cases of severe x-linked disorders”,
which, of course, affect the male foetus.
The Minister recently stated that updated guidance is being prepared for abortion providers to make it,
“abundantly clear that gender selection is illegal”.—[Official Report, 12/2/14; col. 639.]
However, guidance alone is not legally binding. The Royal College of Obstetricians and Gynaecologists’ clinical guidance on induced abortion notes:
“Services should identify issues which make women particularly vulnerable”.
The RCOG includes domestic abuse and gender-based violence here and goes on to recommend that women should be referred to appropriate support services. Do we know whether this actually happens?
In January, the Independent attributed a reduction of between 1,400 and 4,700 expected live births of girls in the UK to sex-selective abortions. The Minister has in a previous response questioned the statistical analysis of the data, raising doubt about the Independent’s conclusion that sex-selective abortions are being performed. However women’s rights groups such as Jeena International and Karma Nirvana, which represent some of Britain’s minority women, are clear that gender abortions are happening here in the UK and that numbers are far from insignificant.
The reports available suggest that this is predominantly a cultural problem. Does the Minister agree that analysing the data regionally and by ethnicity could alert us to areas of concern? Will the Minister advise whether the Government would consider changing secondary legislation by amending regulations, thus providing clarity about the illegality of this apparently growing practice?
The Lord Bishop of Leicester
My Lords, whatever our differing positions on the ethics of abortion, it must be a matter of widespread concern if there is the appearance of a long-standing gap between the spirit of the Abortion Act and the interpretation of the law. This is a matter of particular interest to many in the churches because of a theological commitment to the sanctity of human life, including potential human life.
Two particular areas of concern have been brought to my attention and I want to raise them briefly. The first is gender-selective abortion, which is a matter of great sensitivity, not least in cities such as Leicester, where I come from. Will the Minister help us by commenting on the implications of the press reports and indicating whether evidence to the effect that this is happening is available to the department?
Secondly, abortion on the grounds of serious handicap or disability is currently the subject of some renewed debate raising concern that it is contrary to the spirit of equality legislation as undermining the status and role of disabled people in society. Will the Minister comment on the concern that while foetuses are not afforded legal personhood the law on this is somewhat incoherent as foetal deaths prior to 24 weeks are classed as miscarriages but must be registered as stillbirths after that? Will he comment on the recommendations in last year’s report by the Pro-Life APPG on abortion on grounds of disability which included recommendations for either reducing the upper time limit on abortion on grounds of disability from birth to make it equal to the upper limit for able-bodied babies or repealing Section 1(1)(d) of the Abortion Act altogether?
Lord Mackay of Clashfern (Con)
My Lords, I am grateful to my noble friend for raising this debate. I want to deal very briefly with two points. First, I have seen it suggested that abortion on the ground of sex selection is lawful, or not unlawful, in this country. I do not believe that is correct. The law is quite clear that an attempt to procure abortion before the Act was unlawful and now the Act allows abortion to be lawful on four grounds, none of which is sex selection. Therefore it is absolutely clear that the law prohibits that as a ground of abortion in this country.
Responsibility for seeing that the law is observed in this area, as in other areas, is with the prosecuting authorities, including the police and the DPP. The DPP has drawn attention to difficulties in relation to the arrangements that have been sanctioned by the Department of Health in this connection. My noble friend Lord Howe may have some comment to make on that. I cannot see how a medical practitioner could pre-sign the form in a way that conforms with the statute. My noble friend said that the law is construed in such a way as to allow abortion on demand, but the law does not do that at all. It is quite wrong to suggest that the signing of the form could be done responsibly without proper knowledge of the situation of the patient at the time.
Baroness Rendell of Babergh (Lab)
My Lords, I thank the noble Baroness, Lady Knight, for introducing this debate. Worldwide, women are still not the favoured gender. When my husband was in the Royal Navy and was stationed in Hong Kong soon after the end of the Second World War, he saw the bodies of drowned baby girls floating in the harbour. This was long before the arrival of the cheap ultrasound machine which is imported from China to India. Two thousand female foetuses are aborted every day in India.
This is not new. Demographic statistics first collected in the 19th century in some Indian villages show that no girl babies were found alive. A girl is regarded as a drain on a family’s resources. Some are killed before or after birth to avoid paying a dowry when she would have married, and some because parents lose a potential pension when a daughter leaves her home to join her husband and she can no longer care for them in their old age.
There are now reports that sex-selective abortion is happening in the UK. A study by University of Oxford academics has suggested that Indian women in the UK were aborting more female than male foetuses between 1990 and 2005. That is so concerning that the Council of Europe has suggested that member states stop giving parents information on the gender of unborn babies until late in pregnancy. Such preference for sons over daughters has tipped the natural 50:50 balance in some ethnic communities.
Will the noble Earl give an assurance that the Government take this matter seriously and will he undertake to keep it under close observation, bearing in mind that unsafe abortion results in 47,000 deaths worldwide?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I would also like to thank my noble friend Lady Knight of Collingtree for instigating this debate, but I am coming from a slightly different angle. At a time when medical science is advancing by the month and extremely pre-term babies who are born before 28 weeks are able, through intervention, to survive, we must maintain a respectful balance between terminations and live births.
Statistics from the World Health Organisation show that in England in 1995 the survival rate of very premature babies was 40% and in 2006 it was 53%. The survival rate increases by 9% for each week after 24 weeks. However, knowing these statistics will not diminish the anxiety caused to the mother whose baby has been predicted to be premature.
The issue of terminations on the basis of the predicted sex is a product of the advance of medical science. When I was pregnant, ultrasound scans were not routine. This meant that the baby’s sex was a wonderful surprise at birth. Nowadays, scans are routine and offered at 12 and 20 weeks. It is now possible to see what the sex might be. Some parents do not wish to be told, but others are told.
Perhaps a more ethical way would be not routinely to offer knowledge of the sex of the child except where medical reasons, certainly not social reasons, might require it. For some parents with a family of all girls or all boys, the temptation to know and perhaps terminate could be overwhelming. We should not put such temptation in their way.
As a society, we must maintain a strong balance where the survival of premature births is always ahead of the length of gestation at which termination can take place.
Lord Singh of Wimbledon (CB)
My Lords, as a Sikh, I am totally opposed to abortion on any grounds except that of real and serious danger to the mother’s health, and it is important that those who facilitate gender-selective abortions should be punished with the full rigour of the law. However, laws cannot create good behaviour; they can only define the boundaries of unacceptable behaviour. We must also look to education in tackling negative and outmoded cultural practices.
The Sikh religion is not a religion in which “thou shalt” or “thou shalt not” are strictly imposed; Sikh teachings are couched in terms of gentle guidance about what we should or should not do to lead a responsible life. One of the few exceptions is a total condemnation of female infanticide. Sadly, this was all too common in the India of 500 years ago and was linked to the inferior status of women throughout the world.
From the very start of the religion, Guru Nanak taught the dignity and complete equality of women. Sikh women have always been able to lead prayers and occupy any religious position. The 10th guru, Guru Gobind Singh, gave women the name or title Kaur—literally, “princess”—to emphasise their dignity and complete equality. A Sikh woman does not have to take her husband’s name but remains an individual in her own right.
Despite the clarity of such teachings, negative sub-continent culture for some, even in the Sikh community, leads to discrimination against women and girls. Perversely, it is women who are often responsible, with mothers lavishing extra attention on male children. Even in the West today, a new birth is frequently accompanied by a joyous cry, “It’s a boy!”. It is not so long ago that the birth of a girl to royalty was greeted as a national calamity, on a par with the loss of a test match.
We all have to work much harder to fight gender discrimination and gender prejudice through tighter laws and education.
Baroness Tonge (Ind LD)
My Lords, I, too, welcome the debate secured by the noble Baroness, Lady Knight. Whatever our personal position on abortion, I hope that we all want it to be carried out within the law. All providers of abortion services are tightly regulated and monitored by the Care Quality Commission, which makes unannounced inspections of all providers at least once a year. If doctors are carrying out abortion for any reason outside the law, they should be prosecuted. There is no question about that. Sometimes there may be a sound medical reason for an abortion to be carried out which, to a non-medical person, may appear to be outside the law. These cases, which are rare, should also be properly investigated. New guidelines are being drawn up by the Department of Health and they should clarify these cases, especially making it clear that abortion on grounds of sex alone is not legal.
I support the call by my noble friend Lady Barker for only one doctor to be involved. I do so because it seems to me that it would make the responsibility his or hers alone. There would be no buck-passing and it would make the law far easier to interpret, as well as making it better for the health service and for the patient.
However, attempts to criminalise doctors and prevent access to abortion services, which have recently been escalating in this country, must stop. The Abortion Act is there to prevent malpractice. Personally—I have to say this—I still think that a woman’s right to choose what she does in this situation should be sacrosanct. Whatever our personal point of view, like Queen Elizabeth I, we should not seek to look into other people’s souls or to impose our ethical stance or religion on others.
Lord Patten (Con)
My Lords, allowing sex-selective abortion would mean that the UK was sleep-walking into a full-blown eugenic society, flying full into the face of humanity and the gift of life. Gender-selective abortion, which is highly discriminatory against females, is not prohibited by any Act or any other legislative instrument nor, for that matter, would be abortion by selection on grounds of likely height, appearance or whatever, which forms of cosmetic abortion could follow.
Neither ministerial exhortation, codes of practice nor medical professional self-regulation will stop this. Only the Government can. Therefore, there is a very urgent need for secondary legislation to do the job—to make clear the illegality of all these practices—as the issue will surely blow up in the Government’s discomfort zone if it is not punctured soon, as the Prime Minister has pointed out and sensed, I believe.
Exactly the same goes for foetal pain at 20 weeks-plus, in relation both to the provisions of the Abortion Act and current legislation against the wilful infliction of pain contained in Section 134 of the Criminal Justice Act 1988, which enacts the UK’s commitment under the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. By sheer coincidence, I happen to have taken that Bill through all its stages in another place. Will my noble friend the Minister act on these two issues?
Baroness Flather (CB)
My Lords, I have looked forward to this opportunity to say some things that are very dear to my heart. First, millions of girl babies have been aborted in North India, and the difference between the numbers of girls and boys in two states, Punjab and Haryana, is ridiculous. In Punjab it is 10% and in Haryana it is 11%. Bearing that in mind, it leads us to the conclusion that this must never, ever be allowed in this country. Secondly, whatever the noble Lord, Lord Singh, says, Punjab is the homeland of the Sikhs. He once said to me, “What a pity the Sikhs don’t know how good their religion is”. It is a wonderful religion, but they do not follow it. There is a lot of discrimination, which is not unusual, as we know. In Gujarat, not so long ago—this is current, I am not talking about 500 years ago—they used to drown girl babies in buckets of milk saying that they were drinking the milk. There have been such terrible things happening in countries to get rid of girl babies.
I wrote to Jeremy Hunt, and I received a reply from Dame Sally Davies, the Chief Medical Officer, from which I quote two parts. The first is that, “The CPS concluded that the two cases did not provide a clear basis of finding for a gender-based abortion” and secondly, this part is in bold, “The law is clear that termination of pregnancy on grounds of gender alone is illegal and this decision does not alter that”. We can take comfort from that. We have had a bit of debate that should not have happened today about whether there should be abortion at all, or at what stage there should be abortion. I think that it is a woman’s right to have family planning and, if she does not want a baby, not to have it. It is a human right; women have very few human rights and this is an important one.
Baroness Perry of Southwark (Con)
My Lords, as we are so close to the end of the debate I will not try to repeat the excellent arguments that have been made, not least by my noble friend Lady Knight in her excellent introduction. It might be well to reflect for a minute on abortion itself and the experience of abortion. I have never forgotten one young woman of 18 years of age, whose boyfriend had insisted that she have an abortion because he wanted no part of a baby, telling me what it was like. I had tears in my eyes, as she had in hers, as she told me how the whole night before her abortion she had tried to talk to her unborn baby and explain to it why it was necessary that it should die and how awful she felt when the morning came and she had to say goodbye to the baby that she would never meet. That is the reality of the personal experience of abortion.
What struck me most, looking at the excellent statistical analysis that was given to us by the Library, was that more than a third of women who appear for an abortion are on their second, third or even more. Why is it that they are not given—at the first experience of abortion at least, if not earlier in their lives—better instruction about how to prevent a pregnancy in the first place? We have failed disastrously when there are so many ways of a woman exercising birth control. When we have a morning-after pill, why is it that so many women find themselves with unwanted pregnancies? This is perhaps a failure of what is done in school but it is also—it seems to me—crucially a failure of what happens when a young woman presents herself for the first time for an abortion. She should at least be given good instruction about how to prevent it happening again. In the wider discussion of the appalling custom of aborting little girls, we should think more on the general issue of abortion itself.
Lord Alton of Liverpool (CB)
My Lords, since the 1967 Abortion Act came into force on 27 April 1968, there have been more than 7 million abortions—around 600 every working day. I have some questions for the noble Earl.
As the law does not permit abortion on demand, and abortion was supposed to be a rarity, how in particular does the Minister explain the 66,000 repeat abortions last year—37% of the total—and the fact that, in some cases, individuals have had as many as nine repeat abortions? How does he explain that the majority of abortions are approved by doctors who have never even met their patients? Does he believe that Parliament and the law intended babies to be aborted after up to 40 weeks’ gestation on grounds such as having a cleft palate—breaking our laws on equality and discrimination? Does the noble Earl believe that Parliament wanted an estimated 4,700 girls to be aborted as just another choice, adding to the 160 million girls aborted worldwide?
Non-binding guidance is clearly not enough. Will he therefore amend the HSA1 and HSA4 forms to ensure that the two doctors required by law to authorise abortions only do so having directly asked whether the abortion is on the grounds of gender? On page 8 of its leaflet, Britain’s Abortion Law: What it Says, and Why, BPAS, which undertook 54,478 abortions last year with public money, asked:
“Is abortion for reasons of fetal sex illegal … ?”.
It then provides the answer, “No”. Why has the Minister not required BPAS to remove that advice? In a world in which we have such a low view of the intrinsic value of every life, what is being done to bring to book, using the Human Tissue Act, those National Health Service trusts that have been burning the human remains of aborted and miscarried babies to heat National Health Service hospitals?
These brief questions illustrate why the legislation needs, as the noble Baroness, Lady Knight, has told us today, careful review and amendment. Can the Minister think of a single comparable piece of legislation which has had such far-reaching consequences but has never been subject to post-legislative parliamentary scrutiny? Why does he think that is and will he ask the Secretary of State to consider allowing it?
Lord Campbell-Savours (Lab)
My Lords, we have half an hour left of this debate, and I wonder whether I could speak very briefly in the gap and ask a question.
Lord Popat
It happens that way in the Chamber, where we give four minutes, but not in the Grand Committee Room.
The Deputy Chairman of Committees (Baroness Andrews) (Lab)
I think we can allow the noble Lord to speak very briefly.
Lord Campbell-Savours
I want to ask this very simple question. It has been drawn to our attention by the noble Baroness, Lady Knight of Collingtree, that pre-signed forms have been found. Is it a breach of the law to sign those forms and, if it is, should prosecutions be brought in such circumstances?
Lord Hunt of Kings Heath (Lab)
My Lords, this is an important debate. I share the concerns of the noble Baroness, Lady Knight, about the Assisted Dying Bill, but I do not accept the link she has made between that Bill and the 1967 Abortion Act. I speak as someone who has always supported that Act, but I find termination on the grounds of gender to be absolutely abhorrent, and I hope the noble Earl can clear up the issue of the interpretation of the 1967 Act. Can he say whether he agrees with the interpretation given by the noble and learned Lord, Lord Mackay of Clashfern? As I understand it, the essence of what he said is that the 1967 Act permits abortions only under the specific circumstances as set out in that Act. Therefore, it does not allow for an abortion to be performed on the basis of not wanting a child of a specific gender. It would be very helpful if the noble Earl could really clarify that point.
I also want to ask about the decision of the independent prosecutors in the case mentioned by the noble Baroness. I well understand that the Attorney-General does not want to second-guess the decisions of the independent prosecutors and I have read the subsequent explanation of the Director of Public Prosecutions, but would like the noble Earl to clarify whether he thinks, in the light of that, that any further clarification is required. We have heard about the pre-signing of HSA1 forms. Can the noble Earl confirm that, following the investigation by the Care Quality Commission, those organisations that were found to be pre-signing those forms were ordered to stop this practice? Is he confident that providers are now complying with the Abortion Act?
Finally, does he agree that we need to challenge discriminatory attitudes towards women and girls and should not be frightened of that challenge? Will the Minister say what efforts the Government will make on education in this area and specifically among some communities in this country?
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, it is right for me to begin by thanking my noble friend Lady Knight for her powerful contribution to this important and emotive subject. I express my appreciation to all speakers in this debate. A large number of points have been made and questions have been asked, so I hope noble Lords will forgive me if I do not manage to answer all of them. I undertake to do so, in so far as I do not cover the points in my speech, in a subsequent letter.
The Abortion Act 1967 sets out the terms under which abortion is legal. Since it was passed in 1967, there has been a long-standing tradition that any legislation on this issue is put forward from the Back Benches and is subject to a free vote. I was asked by the noble Lord, Lord Hunt, and others whether the law needs clarifying in the light of events and the statement from the Crown Prosecution Service, which my noble friends Lady Barker and Lady Tonge asked about, making changes to the law. Clarification of the law remains a matter for Parliament, not for government. I say to my noble friend Lord Patten that there is no scope for secondary legislation to amend the grounds on which abortion takes place. It would be a matter for primary legislation.
It is vital for everyone, regardless of their views on abortion, to be assured that the law on abortion is operating as Parliament intended. This is particularly important for clinicians directly involved in certifying and performing abortions who need to know that they are operating within the law and for women seeking an abortion who need access to safe, legal, high-quality abortion services.
The Chief Medical Officer has written twice to all doctors involved in abortion provision to remind them of the need to make sure that they work within the law at all times. It is also important for doctors to be able to explain and evidence their decisions and to record how they have formed an opinion on whether grounds for abortion are met. A number of noble Lords, including my noble friend Lady Knight, raised the issue of doctors forming an opinion on grounds for abortion without seeing or examining the woman. Since the Abortion Act 1967 was passed, the law has required that two doctors certify in good faith that there are lawful grounds for any abortion, and that must be based on understanding the facts of a woman’s case whether or not they personally see or examine the woman.
My noble friend Lord Gordon asked whether we can provide figures for the number of abortions performed without a doctor seeing or examining the woman. I am advised that we do not have figures for that. The 46% figure quoted was wrong, I am sorry to say, and was withdrawn by the department. It is not possible to quantify the figure, but I can say to the noble Lord, Lord Campbell-Savours, that forms being pre-signed is a clear breach of the law and if it is found to be happening, a prosecution should be brought.
I can say to the noble Lord, Lord Gordon, that the Care Quality Commission will continue to cover this issue as part of its inspections and compliance action will be taken against any provider where there is evidence of pre-signing. The CQC has put in place information for its staff to help identify if pre-signing or other instances of non-compliance are taking place to make sure that they would be picked up during inspections.
My noble friend Lady Knight and a number of other speakers expressed concerns about gender-selective abortions, particularly the abortion of foetuses simply because they are female. My right honourable friend the Prime Minister has referred to this practice as “appalling”. The Government’s view has been clearly stated on many occasions—that abortion on grounds of gender alone is illegal. My noble friend Lady Knight stated that the Act is not clear on this point. I confirm to the noble Lord, Lord Hunt of Kings Heath, that the grounds for abortion are set out in the Abortion Act 1967. It is true that these grounds make no reference to gender. While there is an extremely limited number of circumstances in which gender may be a factor in considering other grounds—for example, a gender-related abnormality—the department has made a number of recent public statements through the CMO letters, Answers to Parliamentary Questions and media lines, stating our view that abortion on grounds of gender alone is illegal, and we firmly stick by that view.
Analysis conducted by the Department of Health indicates that birth ratios—that is to say, the ratio of boys born as compared with girls—in this country are within normal limits. This is true for the population overall, and is also true for births to women born abroad who now live in this country. This analysis was first conducted and published in May 2013. This is being updated and we intend to continue to conduct a similar analysis on an annual basis, because we regard this issue as extremely important. We are determined to monitor the situation regularly and remain vigilant. I am also aware that some individuals and organisations have offered anecdotal evidence of gender-selective abortions taking place. I urge anyone who thinks that the law may be being broken to contact the police with their evidence.
The noble Baroness, Lady Hollins, and the noble Lord, Lord Singh, may be interested to know that Department of Health officials recently met representatives from Gina International. The meeting was very useful and Gina International has been signposted to relevant organisations, including abortion providers, with which it can discuss its concerns. The meeting concluded that both sides share the same aims—namely, to spread the message that abortions on the grounds of gender alone are illegal.
The Daily Telegraph first brought this issue to light during its investigation in February 2012. I am aware that the announcement in September 2013 that the Crown Prosecution Service declined to prosecute two of the doctors involved in this issue has been disappointing for some. In explaining why it felt that prosecution was not in the public interest, the Crown Prosecution Service noted that it could be difficult to determine whether doctors had worked within the Act in forming an opinion in good faith. It felt that further guidance to doctors on this issue would be helpful for doctors themselves, as well as for any authority who may need to investigate an allegation of poor practice or lawbreaking. The department therefore intends to issue further guidance for doctors, which will set out the Government’s interpretation of the law on gender-selective abortions, as well as further information about reaching and recording an opinion formed in good faith. We intend to issue this guidance shortly.
I say to the noble Baroness, Lady Hollins, that we believe that the department’s analysis, which is based on birth registrations, is more accurate than the Independent’s analysis, which was based on household composition. The department’s analysis showed that birth ratios were within normal limits.
All abortion providers must be registered with the Care Quality Commission, and independent sector providers must also be approved by the Secretary of State for Health. In order to be approved, independent sector providers must adhere to the required standard operating procedures. There has been considerable concern that the consultation that the department has recently completed on updating these procedures has somehow changed the legal position on abortion. As I have highlighted, the legal requirements on abortion are set out in the 1967 Act. Nothing has changed. A response to the consultation will be published once all the responses have been analysed.
Lord Patten
My noble friend, for whom I am full of admiration in every way, has said that the law forbids abortion on grounds of sex selection, and forbids pre-signing. However, there has never been a successful prosecution or, indeed, a prosecution of any sort. It seems to me that nothing at all is actually being done.
Earl Howe
I shall copy all letters to all Peers who have spoken in the debate. My time is now running out but I know that concerns have been expressed, not least by the noble Lord, Lord Alton, about the way that foetal remains are sometimes disposed of. A recent investigation by the Channel 4 “Dispatches” programme examined this issue. The type of situations highlighted in the programme, where foetal remains were incinerated rather than buried or cremated in line with what the woman would have wanted, are totally unacceptable. Any such practices should cease immediately. A letter has gone to all trusts to make that point emphatically clear.
My noble friend Lady Bakewell asked about hospitals revealing the sex of the foetus at routine ultrasound scans. Disclosing the sex of a foetus is a local decision and should be based on clinical judgment about the certainty of the assessment and the individual circumstances of each case. It is not something that the Government can mandate from the centre.
My noble friend Lady Knight asked about the NHS not employing midwives who would not be willing to perform abortions. The Act allows professionals, including midwives, to opt out of participation in any treatment to which he or she has a conscientious objection. That conscientious objection should not be detrimental to the careers of health professionals. I think I am over my time.
Earl Howe
Sorry, I will carry on. The noble Lord, Lord Alton, made some powerful points about repeat abortions. We are working to reduce repeat abortions through promoting access to the most effective methods of contraception following abortion. Care pathways should be in place to contraceptive services following any abortion.
The noble Lord, Lord Hunt, asked about recording the sex of a foetus on the HSA4 form. We have no plans to record the sex of the foetus on the form. It is not usually possible to identify the sex of a baby until the second ultrasound scan, which takes place at around 18 to 21 weeks’ gestation. In 2012, nearly 98% of abortions were performed before 18 weeks’ gestation, so the gender of the foetus is not known for most abortions. I strongly agree with him that a challenge to attitudes and discrimination against women is a good thing. That is what our parliamentary system is based on. I will write to him further on that, as I will on the question of education.
I close by emphasising again that we are not complacent on these issues. We remain and will continue to be very vigilant.
Lord Popat
My Lords, I suggest we take a break for five minutes in view of the fact that we do not have all the speakers for the next debate.