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.