Conscientious Objection (Medical Activities) Bill [HL]
Friday 23rd March 2018
(6 years, 8 months ago)
Lords ChamberConscientious Objection (Medical Activities) 2017-19 View all Conscientious Objection (Medical Activities) 2017-19 Debates Read Hansard Text Amendment Paper: HL Bill 14-I Marshalled list for Committee (PDF, 75KB) - (21 Mar 2018)
Lord Steel of Aikwood
Lord Steel of Aikwood (LD)
My Lords, Members will realise that Amendment 1 and the amendments associated with it in the grouping go to the heart of the argument in this Bill. I am sorry that I was not able to be here for the debate at Second Reading or I would have spoken then, but it might be helpful to the Committee if I give a brief outline of how the conscience clause arose in the first place. I say that because most noble Lords believe that the Medical Termination of Pregnancy Bill, as it then was, began under me in the House of Commons. That is not the case. That Bill was passed by this House in the mid-1960s. It went through all its stages here and was waiting for a Member to pick it up in the House of Commons.
In the meantime, going back as far as 1939, there had been an interdepartmental committee of inquiry, involving the Department of Health and the Home Office under the late Sir Norman Birkett KC, which argued that the abortion law should be changed. My Bill, which was passed by this House under the auspices of Lord Silkin, was in fact the sixth attempt in the House of Commons to change the law on abortion. The others had all failed not through lack of support but through lack of time. I drew the third place in the ballot, which meant that I had the time to introduce the Bill.
The first thing I want to say is that it is wrong that issues of this complexity and seriousness should be left to the lottery, which is what it is, of the annual ballot for Private Member’s Bills in the House of Commons; it is not the right way to proceed. Once an issue like this comes before both Houses, the Government should provide the necessary time, both Houses should of course have a free vote, and we should proceed in that way. The same thing happened with my Bill on retirement. It would never have got through the Commons had it not been for a Conservative MP who picked it up.
The Bill I presented and which was carried at Second Reading by a large free vote was the Bill that came from this House. However, during the Committee stage many amendments were made to the Bill, largely by myself. Most of them had nothing to do with this Bill and I shall not go into them, but the important one was the conscience clause. How did that come about? Quite simply, I had in my constituency the leading Catholic seminary known as St Andrew’s College, Drygrange. Its representatives were naturally a bit upset that their MP was introducing a Bill to which they were so strongly opposed, so they asked me to speak to them. I think that I went twice, if not three times, for discussions with them. It was they who suggested that in view of the strong opposition to the Bill, there should be a conscience clause, given that under the new legislation no person was required to undergo an abortion, so nor should any person be required to participate in an abortion. I went to meet them armed with an important document which had been published by the Board of Moral and Social Responsibility of the Church of England, entitled Abortion: An Ethical Discussion. Unfortunately it is now out of date and out of print, but perhaps I may quote two short extracts from it.
In referring back to the fact that Catholic tradition had changed over the centuries—from the moment of animation to the moment of conception—the report argued:
“It cannot be maintained, however, that this ‘absolutist’ position has ever commanded, or commands now, general acceptance in the Christian conscience … If we were to accept the absolutist principle and declare the foetus to be in all circumstances inviolable, this pamphlet would end at this point. There would be really nothing more to be said: there could be no further discussion, in terms of Christian ethics, of the problems attending the complicated pregnancy … and a Christian committee could have nothing to say to the legislature except to advocate a total prohibition of all induced abortion. Such a determination would be, in fact, a novel departure from the Christian moral tradition”.
That was the argument I put to the college representatives, but I accept their argument that it was wrong, in passing the legislation, to inflict responsibility on those who strongly objected to it. I came back from those discussions to talk with other members of the committee, including the late Norman St John-Stevas, who was a leading opponent of the Bill. We worked together to introduce the conscience clause as it now stands in the law.
Then, a few years ago, two midwives who had reached a senior position in Glasgow objected to being involved in the administration of abortion in the hospital. The health board took them to court and argued that the conscience clause should not be extended to the extent they were arguing for. The case went up to the Supreme Court, which made it quite clear that it supported the original intention of the Act. Its judgment said:
“Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital … the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved”.
That is why I believe the Bill is wrong in principle. It seeks to reverse the Supreme Court’s decision, which is upholding the law as it was passed by this Parliament. I beg to move.
Baroness Thornton (Lab)
My Lords, my name is added to this group of amendments. I intend to speak very briefly to say that the purpose of the amendments tabled by the noble Lord, Lord Steel, is to redefine in the Bill what constitutes participation in an activity to bring it into line with the existing law. This would mean that healthcare professionals could opt out of hands-on participation, such as performing a surgical abortion or dispensing abortion pills, but not out of things such as organising a staff rota where some of the staff on the rota might be taking part in abortion services. This is because we support the right of healthcare professionals to opt out of participating in a hands-on capacity. The noble Lord explained the history, roots and the discussions that led to this and why it has been maintained for so many years as the acceptable and sensible way forward. It is not just my view or that of these Benches. It is also supported by medical bodies such as the British Medical Association, the Royal College of Obstetricians and Gynaecologists and many other organisations, including the British Pregnancy Advisory Service. I will leave my remarks at that while we have this debate.
Lord Winston (Lab)
Does my noble friend not agree that there might be some fellows of the Royal College of Obstetricians and Gynaecologists who do not agree with the briefing material that the council has sent to the House of Lords?
Baroness Thornton
That is the point, in a way, of the current situation: it allows people to disagree and to not have to participate in hands-on terminations.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too support the amendment and the obvious corollary amendments later, which are designed to confine the conscience exemption to hands-on participation, as explained in the Supreme Court decision to which the noble Lord, Lord Steel of Aikwood, referred—the Doogan case, which came from Scotland. As amended in the proposed way, the Bill would precisely give effect to that unanimous decision of the Supreme Court. It was a single, convincing judgment from the noble and learned Baroness, Lady Hale, who is now, of course, the President of that court. That decision is the last and most authoritative word on the true interpretation of Section 4 of the 1967 Act, the conscientious objection clause, which has now stood for half a century.
Although an article by the noble Baroness, Lady O’Loan, in The House magazine published shortly before Second Reading suggested that the Doogan decision had in fact narrowed that statutory exemption and that therefore there should now be a wider interpretation in order to “re-establish” or “reaffirm” what Parliament enacted 50 years ago, that is not so. As I have no doubt the noble and learned Lord, Lord Mackay of Clashfern, would confirm, Doogan, on the law as it currently stands, was correctly decided and what this Bill now seeks to do, therefore, is to persuade Parliament to change the law and to give an altogether wider reach to the previous conscience clause than has hitherto been thought appropriate.
Baroness O’Loan (CB)
I hesitate to interrupt the noble and learned Lord, but will he confirm that abortion is not always lawful? Abortion is lawful only in those situations in which it was decriminalised under the Abortion Act 1967.
Lord Brown of Eaton-under-Heywood
I absolutely accept that of course that is right. I was putting it in that shorthand way simply to make the point. Of course, everything that I say in this respect plainly applies only to lawful abortion under the Act. It is in that context that we are debating the question. I suggest in parenthesis that it is intolerable that, for example, certain abortion clinics are from time to time surrounded by protestors who harass and intimidate those who are attending for—let me insert the word—lawful treatment by termination.
I return briefly to the judgment in Doogan, which explains, at paragraph 11, that participation means actually taking part in the process. Following a lengthy section of the judgment, which I will not weary the House with but which closely analyses the competing arguments on the case, the noble and learned Baroness, Lady Hale, returns to the all-important question at paragraph 38, the paragraph that the noble Lord, Lord Steel, quoted. I will just give a slightly fuller quotation, because he left out one or two bits that I think are worth reading into the record. He read this bit but I will read on. Paragraph 38 says:
“It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.
That is the theme taken up by the shorthand encapsulation of this judgment in Amendment 1 and a certain amendment which will follow.
In the very next paragraph of the judgment, there then follows an enormously helpful and detailed exegesis of that approach—a test of the principle against what was in that decision. It is an agreed list of 13 tasks included in the role of the two petitioners in that case, as labour ward co-ordinators. Some of those tasks were held to be covered by the conscience clause and others were held not to be. Some were specifically held to be covered but to an explicitly defined extent.
It is tempting to read out the entire paragraph and to invite a clear indication from those who resist these amendments as to where they are suggested to be too restrictive of the exemption provision. But in the interests of brevity I will simply quote three of the shorter sub-paragraphs, which set out certain of the agreed tasks. The first task referred to,
“management of resources within the Labour Ward, including taking telephone calls from the Fetal Medicine Unit to arrange medical terminations of pregnancy; this is not covered by the conscience clause as interpreted above”.
The sixth task referred to is,
“responding to requests for assistance, including responding to the nurse call system and the emergency pull; responding by itself is not covered; it would depend upon the assistance requested whether it was part of the treatment for a termination”.
Finally, there is sub-paragraph 11—no, perhaps sub-paragraph 10, as it is shorter. It refers to:
“communicating with other professionals, eg paging anaesthetists; this is a managerial task which is not covered by the conscience clause as interpreted above”.
If it is unamended, the Bill would provide exemption from all these tasks by those in the position of the two Doogan petitioners.
Lord Alton of Liverpool (CB)
I wonder whether I may press the noble and learned Lord on the specific question of exemption. While I share some of his concerns that a list that included hospital porters and so on would be exhaustive, was never envisaged and is not what I think the sponsor of the Bill would wish to see, where does the noble and learned Lord stand on the question of Mary Doogan and whether she should have the right to opt out of participating, even through facilitation through lists rather than in a hands-on way as the amendment states? Where would he stand on something as specific as that case? Notwithstanding whether it was lawful or not, does he think that the law should be changed to provide reasonable accommodation for someone such as Mary Doogan?
Lord Brown of Eaton-under-Heywood
With respect, I stand precisely with the Supreme Court. I think those 13 tasks were analysed and responded to by the court in precisely the right place. Of course these borderlines are not easy to draw, but the court went to infinite pains to draw them as precisely as possible, consistent with the proper exercise of conscience if you are what was there described as involved in a hands-on participatory role, but not otherwise. It is simply an ever-widening sphere of activity ever further from the actual direct termination if you simply throw the exemption open to anybody on an administrative or managerial basis. I stand with the Supreme Court; it is a decision to which I would happily have subscribed.
What is now sought by this Bill is a significant, if necessarily worryingly imprecise, enlargement of the scope of the conscience clause. I shall add only this. As I observed at Second Reading, two responsible and respected bodies, the Royal College of Midwives and the British Pregnancy Advisory Service intervened in the Supreme Court proceedings in the Doogan case, opposed the petitioners and supported the opposite view. They opposed giving a broader scope to the right of conscientious objection. They suggested that to do so put at risk the provision of a safe and accessible abortion service and could put at risk the employment of those with less extreme conscientious objections than the two petitioners. Be that as it may, it certainly must not be assumed that the existing law risks a diminution of the obviously necessary workforce involved in giving effect to lawful abortion rights.
I concentrated my observations on Clause 1(1)(c), on termination, but in truth they apply similarly across the entire scope of the Bill. I therefore strongly urge the Committee to accept Amendment 1.
Lord Turnberg (Lab)
My Lords, I strongly support the amendments in the name of the noble Lord, Lord Steel, and others. I apologise to the Committee for not being here for Second Reading for various reasons. I was almost prevented from coming today, but I managed to struggle here. I have the utmost respect for the noble Baroness, Lady O’Loan, and for the reasons behind her Bill, but when I examined it I was immediately struck by what seems to be a conflict between, on the one hand, putting a patient’s best interests first and, on the other, the doctor’s conscientious objection to providing certain treatments. I should perhaps explain how I came to that concern and why I support these amendments by expressing my interests.
I was in the distant past dean of the faculty of medicine in Manchester—a faculty, incidentally, that included nursing and dentistry as well as medicine—and then president of the Royal College of Physicians. In both roles, I was at pains to instil high standards of care in our students and trainees, but I must say that I was brought up short later when I became president of the Medical Protection Society. In that role, I had to face doctors who had failed their patients in one way or another—quite a shock to the system after what I had been trying to do until then to ensure ethical and moral behaviour, focusing heavily on putting the patient at the centre of everything that we do as doctors.
Baroness O'Loan
I may have misunderstood the noble Lord, but I think that he said that the Bill would enable a doctor who will not engage with a particular process to prevent somebody else from engaging in that process. Is that what the noble Lord said? Could he explain to me why he said it, if so, so that I can understand better?
Lord Turnberg
The wording of the Bill makes sure that a doctor who has conscientious objections to a procedure has a responsibility under the Bill to prevent others being involved in such procedures, and in their training and supervision, which makes it very difficult for someone working with them to carry out such procedures.
Baroness O'Loan
Can I ask the noble Lord to refer me to the section of the Bill that does that, because it is not the intention of the Bill, and I actually do not believe that it is the effect?
Lord Turnberg
I can. Clause 1(1)(c) refers to:
“No medical practitioner with a conscientious objection to participating in … any activity … required to prepare for, support or perform termination of pregnancy”,
in this instance.
Viscount Craigavon (CB)
My Lords, I spoke at Second Reading against this Bill, very much in support of the result of the judgment of the noble and learned Baroness, Lady Hale. From what she says towards the end of her judgment, we are not tied to the literal meaning of “hands on”. I also refer to the article on this Bill in the House magazine by the noble Baroness, Lady O’Loan, in the week of the Second Reading, where she employed the apparently simple phrase the “taking of human life”. In terms of realising that we all do not share our definitions of the same starting point and end point of life, I believe that in this field we do not all have the same premises to anchor our consciences. To the extent that this Bill is built upon a particular version of what is meant by “human life”, we are bound to end up with differing conclusions and disagreements.
As has been made clear by the noble and learned Baroness, Lady Hale, at the end she enlarged on her “hands on” phrase with her examination and analysis of the 13 tasks of the petitioners’ role. I believe that is the best definition of the phrase that we need, which has been very fully covered by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He, like me, regards that as an anchor for interpreting the current law.
To go back to a much earlier part of the noble and learned Baroness’s judgment, to paragraph 11, she went back in time to help to show how the law had arrived at the present situation, and how “participation” had come to be defined. The noble and learned Lord, Lord Brown, gave details of the case that I was going to mention—the 1989 case, in the House of Lords. The noble and learned Baroness interestingly said that it was,
“a case which all parties accept was rightly decided”,
the “all parties” being the parties before her in that case.
I shall not give the details of the Janaway occupation, which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave, but it was decided then that participating meant actually taking part in the process of terminating the pregnancy. The noble and learned Baroness, Lady Hale, added that it did not have the extended meaning given to participation in the criminal law, as the noble and learned Lord, Lord Brown, again enlarged on. So that submission failed and, apparently, all parties to the present case agreed it was rightly decided, as I said.
I mention all this detail in order to ask whether we are in danger, by this Bill, of having to reverse what was decided in 1989, or even earlier. The Bill is trying to solve very complex problems by the very heavy imposition of a statute law that is quite unsuitable and insensitive for what it is trying to achieve. When we come to Amendment 15 it will be seen how much the weight of this statute law proposal would need to be softened by a more balanced and humane approach. For the moment, I fully support Amendments 1 and 3.
Lord Cashman (Lab)
My Lords, I support Amendment 1, in the name of the noble Lord, Lord Steel, and the other amendments in the group. I will restate what I said at Second Reading, so that there is absolutely no doubt. I completely respect conscientious objection—religious and non-religious. I respect and defend the right to freedom of religion and belief, but not the right to impose them upon others who do not share them and, by so doing, diminish the rights and legal choices of others. It is always a joy to refer to the comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whom I absolutely agree. This is an attempt to rewrite the law in the light of the Supreme Court judgment delivered by the noble and learned Baroness, Lady Hale, in the Greater Glasgow Health Board v Doogan.
If the Bill were to become law unamended, we would see conscientious objection so widened beyond the wise judgment of the noble and learned Baroness as to make certain services, such as IVF treatment, end-of-life care and abortions, difficult to access and sustain nationally. We would witness the imposition of belief to curtail the legal choices and options of others. I support these amendments because they would reinforce existing law. As has already been said, conscientious objection is clearly laid out in statute, and has a clear interpretation in law. This is that no person shall be under a duty to participate in a “hands-on” capacity in the termination of pregnancy, except in a clinical emergency. This definition is long established, supported by medical colleges and professional organisations as well as organisations such as the British Pregnancy Advisory Service. There is no convincing, independent, impartial evidence to indicate that it is operating poorly.
Therefore, these amendments seek to retain the existing scope of conscientious objection, which is already in legislation. It is in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1980. It is worth restating that the Abortion Act 1967 says that,
“no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection”,
but provides an exception for termination,
“to save the life or to prevent grave permanent injury to the physical or mental health”,
of the woman. The interpretation of this provision is found in the 2014 Supreme Court judgment in Doogan. That judgment absolutely upholds the concept of “hands on”. The noble and learned Lord, Lord Brown, has already gone into the details of that judgment.
In conclusion, the current law effectively balances rights. Conscientious objection must seek to balance the rights of healthcare professionals to act within their own ethical principles and the rights of patients to access legal medical care. The support of professional bodies and organisations for the principle of conscientious objection makes it clear that healthcare professionals are not expected to take a hands-on role in terminations of pregnancy, IVF or end-of-life care, which I will come on to when we debate later amendments. At the same time, patients must have the ability to exercise their rights to access legal healthcare. Conscientious objection cannot be allowed to undermine the rights of women, and others, to access services.
Lord Mackay of Clashfern (Con)
My Lords, I want to speak in very general terms in relation to Amendment 1 by the noble Lord, Lord Steel. As the noble Lord explained, in the Act that he ultimately had the responsibility for leading, it is quite plain that conscientious objection in the area of abortion is recognised and protected. The question really is: what is the extent to which that should be recognised? I should perhaps say that I am an honorary fellow of the Royal College of Obstetricians and Gynaecologists—though, needless to say, I have not sought to put it into practice in any sense.
I have of course been in this area of responsibility for statutory provision, in particular in relation to the Human Fertilisation and Embryology Act 1990. Your Lordships who are old enough to remember those proceedings will also remember that the Government decided that, for most of the issues that were of significance under that Bill, there should be a free vote. The Bill started in the House of Lords. One key question that needed to be decided, in an open vote—not compulsory, not whipped or anything of that sort—was to what extent research on embryos should be allowed. There was general agreement that, at least up to the first 14 days after conception, matters were not such that there was really a human life involved. It was certainly possible to take the view that, from 14 days onwards, a human life was involved and that, as life developed, ultimately there was hope that there would be a fully developed, healthy child. The dispute, which was very lively in this House, was whether research should be allowed on embryos before that happened. Ultimately, the vote was in favour of allowing research on embryos. The Bill started, as I said, in the House of Lords, and I was extremely glad the vote went that way, and with a fairly substantial majority.
However, the Bill of course had to go through the House of Commons—again with a free vote, naturally—and I had to hold my breath as to what might happen when the Bill arrived there. There was a strong lobby against any kind of embryonic research; indeed, I know some people who are still of that point of view. Anyway, it went to the House of Commons and the thing that frightened me very much was that it was agreed by parliamentary counsel that the scope of the Bill allowed debate on abortion. With free votes around, noble Lords can understand my anticipation that matters might have become extremely difficult. The debates turned out much better in their result than I had feared. I did not really know what the attitude in the Commons would be, but I was afraid that they might diverge from that of the House of Lords. Fortunately, on both matters, these votes produced the same result. Therefore, I do not come to this Bill without experience of trying to deal with this matter.
On another aspect of this matter, I had the honour of originally nominating as a judge the noble and learned Baroness, Lady Hale, as she now is. I regard the point of view which I advocated as fully vindicated by what has happened. It has to be said that the Supreme Court interpreted the law that had been laid down by statute. That is the job of the courts, not to make new law where there is a clear statutory law binding the situation. Its judgment is a clear and emphatic interpretation of the law as it has been.
The difficulty for me—I make it clear that it is a difficulty—is the nature of the objection that most people who have conscientious objection have to the activity of abortion. I contacted one of the authorities that have been in touch with us on the Bill and I have the impression that the number of practitioners who have conscientious objection is not huge. There is not too much in the way of statistics to back up one view or the other, but that is the impression I have in trying to understand what the position is. I do not want to take up too much time looking at the other areas where this Bill deals with conscientious objection, but in relation to abortion the conscientious objection is that the abortion operation destroys a human life. If you really believe that and if that is your conscientious objection, it is difficult to be involved in anything which promotes that. You do not want to kill people. That is the sort of point that the noble Lord, Lord Alton, made at Second Reading, to which my noble and learned friend—he is certainly my noble and learned friend—Lord Brown of Eaton-under-Heywood referred. However, that is the difficulty I have: recognising what the real conscientious objection is and giving effect to it.
I understand the arguments. The noble Lord, Lord Cashman, stated very precisely and correctly what freedom of religion and freedom of conscience in this country are. They include respect for the rights and freedoms of others. Therefore, it is difficult to see how this measure can be introduced in the ordinary administration of the National Health Service. If that is your conscientious objection, it extends beyond having a hands-on interest in the matter. I understand completely that if it extends beyond that, it will have an effect on the administration of the National Health Service.
How do you recognise the real objection, not somebody else’s formulation of it, but the people who have this objection? I think I am right in saying that that is basically what they believe. It is very difficult to see why they should be involved in anything that promotes what they object to. I have thought hard about this issue. The words that are used to expand it are difficult and some of them are stretching. I wonder whether the amendment proposed by the noble Lord, Lord Winston, in that connection might deal with that matter. If you have a very broad objection on the basis that I have said, it may be difficult to fit you into the system. There is a balance in this. If the people making the relevant appointments know what your objection is, they can take account of it in determining whether you are suitable to be fitted into the system to do a particular job. There will be jobs that are very close to the killing that they think is happening, and those that are more remote from it. It is difficult to draw that line exactly.
That is why a solution may be Amendment 25, in the name of the noble Lord, Lord Winston, which would mean that when you are seeking a job you would tell people what your conscientious objection is and what it extends to. An objection to that is that it discriminates against people who have a conscientious objection, and I can quite understand that too. But on the other hand, it seems that some way of limiting the interference with the administration is required to be found. That is what this Committee may be able to do. I have thought myself about what amendment I might put down, but I fear that I am not wise enough to have thought exactly about how you would frame it. Therefore I was comforted by the way the noble Lord, Lord Winston, would do it, finding out when you make an appointment whether the person with this kind of objection can be fitted into that appointment. I have not so far thought of anything better than that, and I will be glad in due course to hear what the noble Lord, Lord Winston, has to say about that. I have had considerable experience of his skills in this area from my history of involvement in this matter.
It is for us to do our best to try to accommodate the real conscientious objection that exists here consistently with proper administration for the health service. That has been well expressed by the noble Lord, Lord Cashman, who I think wants to say something.
Lord Cashman
I wanted to develop the noble and learned Lord’s theme of recognising the objection then allowing someone else in the chain—in the pool of services—to take that on. However, Clause 1(2) says that:
“For the purposes of subsection (1) … ‘participating in an activity’ includes any supervision, delegation, planning or supporting of staff”,
so that would prohibit the very approach the noble and learned Lord has outlined. In addition, not that I belong to any religious group at all, but Buddhists approach these issues with the concept of right belief, right livelihood.
Baroness Thornton
My Lords, to add to that, in the debate at Second Reading, the noble and learned Lord suggested that there need to be amendments to the Bill, but the movers of the Bill have not brought forward any of those amendments to allow us to have that discussion.
Lord Mackay of Clashfern
I was looking for help in this area from people who know better than me about administration, because I have never participated in the administration of the National Health Service, and I am thankful that I was able to find some other employment. The noble Lord, Lord Winston, has proposed an amendment which—subject to the objections I mentioned, that you would discriminate against people with a conscientious objection—is a way of fitting this into the administration. For example, they may think that the only way you can deal with this is to have the person at a certain grade, but one of the things about conscience is that you must be prepared to make sacrifices to secure your conscientious objection. I do not say for a minute that I want to justify any discrimination on the ground of conscience, but this is not discrimination. It is trying to fit the system to accommodate, so far as possible, the real objection people have. It is not just an objection to being hands-on; they are thinking about killing human life. I think all of us would think, if that idea were correct, that that was a very dangerous operation to have regard to.
Baroness Thornton
I take exception to that idea. There are people in this Chamber who do not agree with that definition of killing human life at that stage of an embryo’s growth.
Lord Mackay of Clashfern
I am not saying that this is right; I am trying to describe what I believe to be the conscientious objection. I am not saying that it is proper. I have not applied for the health service, unfortunately, so I do not need to say what the extent of my conscientious objection would be, but there is no doubt in my mind that that is the nature of the conscientious objection, although people may have slightly different views about how far it extends. That is why the suggestion of the noble Lord, Lord Winston—I acknowledge his wisdom—is the best way forward, subject of course to making sure that it was used not in a discriminatory way but in trying to accommodate the full extent of the objection within the framework of the administration of the health service.
Lord Alton of Liverpool
Does the noble and learned Lord accept, though, that the narrow case of Mary Doogan and the midwives in Scotland—she had after all been involved in more than 5,000 live births, bringing children into the world—illustrates what could never have been in the minds of legislators in 1967, as one can see in the Hansard of that period, and how much things have changed in the intervening years? That is not just about changes in attitude and culture; to pick up the point that the noble Baroness just made to the noble and learned Lord, there are those among us who believe that life begins at conception and that the science is right, and therefore that the law is right in saying that, for instance, as he referred to earlier, only for the first 14 days can experiments take place on the human embryo. That must be 14 days after something, and the law states that explicitly. That is not an unreasonable position, although I accept that these are contested positions. How therefore do we find, in a society where we respect difference, that there can be contested positions without discrimination falling on those who carry out those contests?
Lord Mackay of Clashfern
That is why probably the best solution that I have seen so far is to try to accommodate a contract on which you enter such conscientious objections as you have. I can see that that may limit the opportunities within the health service that a person with a conscientious objection has, but then that may be part of what you have to do.
Lord Alton of Liverpool
Does the noble and learned Lord therefore think it is a good situation for us to be in that, for instance, people who have religious views or who are atheists and are opposed to taking the life of an unborn child in the womb are by and large pretty well excluded now from gynaecology and obstetrics? The noble Lord, Lord Winston, says from a sedentary position that that is not true. If he can give an example to me of, for instance, people who hold deeply committed Christian evangelical views or who are committed Roman Catholics or, for instance, Orthodox Jews who would support, for instance, the taking of life up to birth, as the law now allows since 1990 in the case of Down’s syndrome, I would be surprised, but I would be interested to hear those names.
Lord Winston
I would like to correct that impression, if I may. I hope it might be useful if I might still be able to speak in due course about the amendments that I tabled, but not at this stage.
I cite as an example my own unit, and this situation was not because I was the head of it. There were a number of people with very orthodox religious views from three or four different faiths, including Jews and Catholics, some of whom were involved with in vitro fertilisation at different levels. We could accommodate those because we had the staff to do so. I am not convinced that, in the field of obstetrics and gynaecology, the health service has been inimical to people who are orthodox Catholics.
Lord Brennan (Lab)
The present Bill seeks to introduce a restatement of the law concerning conscientious objection. As far as I am aware, there has been no specific Bill in Parliament with a title such as this, even though it is restricted to medical practice. Conscientious objection springs from conscience—the moral sense of right and wrong—and it is a principle of human rights recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the European Charter of Fundamental Rights. For 70-odd years, we have regarded this as a basic human right, not an excepted privilege from the norm.
The question for the Committee is whether it is appropriate in principle to treat conscientious objection in a narrow test or in a wider test. The Bill advocates a wider test than that which has gone before. However, because it does so and because what went before has been said to be a narrow test, the Committee has to decide what the present principles should be in terms of tests. We are here not to vindicate the judgment of the Supreme Court but to exercise legislative judgment about what is fair and reasonable in applying human rights in our society.
Doogan was specifically about the relationship between Sections 1 and 4 of the Abortion Act 1967. Was the conscientious objection provision in Section 4 consistent in its scope with what was envisaged in Section 1? This Bill puts that aside. It effectively replaces Section 4 of the Abortion Act and, if necessary, on Report that section can be repealed by an amendment to this Bill. So we are not rehearsing history here; we are establishing what is right for the future.
In the judgment of the noble and learned Baroness, Lady Hale, agreed to by the other judges, Doogan expressly declined to look in detail at the Human Rights Act. It was a decision based on the co-extensiveness of parts of the statute. It does not dictate what this House should or should not do.
What should we do? First, Article 9 of the Human Rights Act, which is now part of our legislative framework, applies to our deliberations. Article 9 expressly enacts a freedom of belief, religion and conscience. It is not a sideline addition; it figures in all these declarations. What is meant by conscience?
Lord Brown of Eaton-under-Heywood
Does the noble Lord, whom I would be happy to call my noble friend, agree that in the case of Doogan the court looked at the Article 9 point? It dealt with that. Alas, I have given my copy of the law report to Hansard, but I am sure that he is aware of the decision and accepts that the court looked at Article 9.
Lord Brennan
I read the Doogan judgment with equal care to my noble and learned friend Lord Brown, but the fact is that here we are considering a test which was not considered in Doogan. It is different wording and a different context of statue. The point that I was making a moment ago was that Article 9 creates a right to exercise conscience.
Article 9.2—I invite your Lordships to listen carefully—says that that right prevails unless it is,
“necessary in a democratic society”,
to introduce limitations for specific reasons, one of which is the protection of the rights of others. I heard nothing in the Second Reading debate to evidence the fact that it is “necessary” to limit this test for conscientious objection. We are dealing with evidence, not policy opinion.
Let us compare the House of Lords exercising its legislative function with the Supreme Court. It specifically declined to decide between wider and narrower tests on the basis of societal interest and the supposed threat of one side or the other, because, it said, it would be speculation. The amendments, in effect, invite us to speculate that, without them, the rights of others would suffer to such an extent that we would have to change the law. That is a very tough hurdle to overcome. If there is no evidence before the House of Lords, and in the debate so far there has not been—
Baroness Thornton (Lab)
I thank my noble friend for giving way. At Second Reading, the noble Baroness, Lady O’Loan, mentioned evidence several times but did not actually tell us what that evidence was. So I am unclear as to what the evidence is that is being prayed in aid of in this private Member’s Bill. In fact, my noble friend has just made a statement about the restriction of rights, but the amendments are about retaining the situation as it is at the moment, which guarantees certain rights and provides a balance.
Lord Brennan
I respect my noble friend’s opinion. The point I am making is that we are not here talking about a balance between different rights. We are talking about the restriction of one set of rights in favour of another because it is “necessary”. But how is it necessary to reject this legislation in favour of the past test?
Let me turn for a moment to the question of responsibility. When I used the phrase “the moral sense of what is right and wrong”, it bespeaks the exercise of responsibility through conscience. The narrow test that is proposed—hands-on against hands-off—does not appear to be conscience based but proximity based. Where is it reasonable to draw the line and upon what principle do we draw it? If it is proximity, where does the moral sense of conscience fall away? Does it fall away because you are lower down the supply chain in the treatment? Let us compare medical abortion to a surgical abortion. Is the pharmacist who draws up the drugs outside the responsibility list? Is the person who brings the drug from him or her to the treatment room to give to the patient in or out of the system? Is it only the person who gives the drug to the patient? Many abortions are of that kind—abortifacient. The surgical abortion, which you understandably think of first, is a different exercise. This Bill covers both.
I appreciate from the speeches that have gone before that I am putting forward a different proposition from that which was feted by anyone at Second Reading. To pass this Bill we have to obey the Human Rights Act. To obey the Human Rights Act, we have to think objectively on the basis of adequate material. Without it, the right of conscience should not be prescribed by law as we would be required to do under the Human Rights Act. Moral responsibility rarely comes before us to consider. It is all a question of balancing our view against the conscience-holder’s view. It is what is right in our legislative regime.
I regret that I was not able to attend Second Reading. I admire the scope of the speeches that were made, particularly that of the noble and learned Lord, Lord Mackay of Clashfern, whose commitment to reason and reasonableness are of great value to this House, particularly on moral issues. He was right when he said that we should not make the staff involved in this kind of process do that which is contrary to their conscience and belief.
The Lord Bishop of Peterborough
My Lords, I also spoke at Second Reading. I spoke then in fairly general terms about conscience and the importance of conscience. I may be expected now to speak from a specifically religious point of view, but I do not want to do that; I want to speak more broadly again about conscience and human rights, but specifically in the areas of these amendments. I am very grateful for what I have just heard from the noble Lord, Lord Brennan, who I believe puts some of the conscience questions very clearly and helpfully and in a new way for this House to hear. That eloquence is appreciated.
I specifically want to question Amendments 1 and 20. I would not want to question all the amendments that are here, but Amendments 1 and 20 bother me in various ways. Amendment 1 bothers me because this phrase “hands on” is very difficult to grasp hold of. I know that it was part of Doogan. It is there, and we have to take account of it in a serious way. But what does it exactly mean? I will use as an example Amendment 20, which talks about supervision. Supervision can be more or less hands on. It works in different ways. If you are supervising a relatively junior member of staff or someone inexperienced in a particular procedure, supervision may be very active and very proximate. It would be quite hands on—showing somebody how to do something and how to do it well and properly. That sort of supervision surely cannot be excluded. If we allow the conscience opt-out for hands-on reasons, “hands on” is very hard to define.
If we mean literally touching the patient, that would exclude quite a number of things. If we touch the drip that will adjust the rate at which drugs flow, is that hands on? Yes, it almost certainly is. But step back a little bit: if you are passing something to the clinician, is that hands on or not? It gets a little harder to define at every remove from the immediate practitioner. “Hands on” is a difficult phrase to use, and to put it into law in this way would worry me. I would like to have a clear way of defining who the practitioners are—the practitioners in a medical sense.
Lord Brown of Eaton-under-Heywood
I thank the right reverend Prelate for giving way. I have never intervened to interrupt somebody from that Bench before, but I just wanted to point out that “hands on” is explored and explained in very full detail. It means 13 different tasks; it is applied and very clearly spelled out. If we amend the Bill to use this phrase, everybody will then look at Doogan—there is about a page of text—and know exactly where they are. I do not know whether the right reverend Prelate had realised that.
The Lord Bishop of Peterborough
My Lords, I have read Doogan and I am aware of what the noble and learned Lord, Lord Brown, is saying. That is not part of what is being specifically proposed in this Bill. It is one way in which the Bill could be read and interpreted, but once a Bill has been brought forward and becomes law, there are different ways of trying to interpret it which will create another legal minefield.
Baroness Thornton
I am grateful to the right reverend Prelate for giving way. When each piece of legislation was passed by Parliament—in 1967, 1989 and more recently—from that flowed a huge amount of discussion, in which the noble and learned Lord, Lord Mackay, and many other Members of this House were involved, about its application. This is not a new matter, and we know that that is what happens. A huge amount of consideration has been given to looking at how these particular pieces of legislation, such as the conscience clause in the Abortion Act 1967, should operate, including involving the royal colleges and all the other relevant parties.
The Lord Bishop of Peterborough
I am aware of what the noble Baroness is saying. I am using the example of supervision because it shows some of the complications in the phrase “hands on”. It is clear that supervision can mean a whole variety of different things—more remote or more proximate, so it is a difficult issue. I would strongly oppose Amendment 20 because in practice the word “supervision”, in practice, can mean helping the practitioner to do the job. It can mean ensuring that the job is done. It can mean without being strictly hands on but enabling the person to do something. That clearly will go against conscience in the way that the noble Lord, Lord Brennan, and others have made clear. The definition is difficult because “supervision” can mean different things. For me it is a matter of great concern about what is before us.
Lord McColl of Dulwich (Con)
My Lords, the thing that all the amendments in this group hold in common is the belief that conscientious objection should be provided only in relation to hands-on activity; that is, of actually performing the abortion. They suggest that other facilitating activities on which the performance of an abortion depend should not be included within the scope of the conscientious objection.
If we are serious about conscientious objection, this simply does not make sense. If we recognise that different people have different views about the morality of abortion and that while some of us regard abortion as perfectly moral and acceptable, others find it difficult to distinguish it morally from the taking of life of someone who has been born, we have to accept that the moral difficulty lies not just in the act of the abortion but also in the act of facilitating it, as has been mentioned. It seems to me that when we are clear that something is wrong, we are also clear that facilitating that thing, whatever it may be, is also wrong. We understand that if anyone who facilitates becomes complicit in the act in question, a moral responsibility is thus engaged. In this context, these amendments simply do not make sense.
If we were to accept the logic on which they rest, we would have to expunge from our law any recognition that someone who helps to facilitate an illegal act has any kind of culpability. Culpability should rest only with the person who does the act. Mindful of these considerations, it is difficult to see these amendments as anything other than an attempt to undermine and weaken conscientious objection. If someone genuinely believes that an act is wrong, the provision of a legal assurance that they do not have to do the act but only facilitate it makes the profession in question no longer open to them. It is as if they have been required to actually carry out the act itself. Anyone in this situation with a sense of integrity and wholeness that requires consistency across their moral life would have to leave the profession in that context.
I have friends who, when they went up for a consultant post in obstetrics, were asked the question, “Are you prepared to take your share of abortions?” If they said yes they were considered for the appointment. If, on the other hand, they said, “Yes, I am quite prepared to take my share of the abortions within the Act of 1967”, they were not considered for the appointment and they had to emigrate. I have many friends who had to do that.
Lord Winston
The Committee deserves clarity on that statement, if the noble Lord, Lord McColl, does not mind. I have huge respect for the amazing work that the noble Lord has done in surgery over very many years, but I have been in obstetric and gynaecological practice as a consultant for quite a long time and I have been on many interview bodies looking at staff who will be working in obstetrics and gynaecology. Sadly, I was not here for Second Reading, but I read the noble Lord’s Second Reading speech where he made that point very clearly. I do not recognise that happening in the services in which I have worked. In fact, that discrimination is exceptionally uncommon. I am very surprised that he said he found that a number of people have needed to go overseas. That seems rather an unusual situation. I would like some clarity on that. It is an important point because it affects the amendment I have tabled for later in the discussion.
Lord McColl of Dulwich
I thank the noble Lord for his intervention. I am not saying that it happens now; I am saying what I found in my experience. They were my friends, and I can give the noble Lord their names and addresses. They were extremely good obstetricians practising in Australasia.
It seems to me an important part of the British liberal constitutional tradition that we place a lot of emphasis on freedom. This freedom has many aspects, but central to it is the opportunity to work in one’s chosen profession without being required to act in a way that violates one’s own identity. Ours is not a constitutional tradition in which we use the law to compel people to decide between acting against their deepest moral convictions and losing their livelihood. The hounding of people out of their jobs on this basis is deeply illiberal. Although our constitutional tradition is closely associated with liberty, there are moments in our history when we have failed in this regard. I fear that historians looking back on this set of amendments in a hundred years’ time might recoil from them and wonder how on earth we came so close to stepping away from our historic British commitment to liberty.
I am of course aware that beneath these amendments rests what some would purport to be a respectable argument. It goes something like this: women have a right to have an abortion. People who conscientiously object effectively have the temerity to suggest that their rights as a service provider are more important than the rights of the service user. In this context, we need to rein in our conscientious objection so that it applies only to the doing of the act, not to facilitating it. This logic is deeply flawed for two reasons. First, workers have rights and consumers have rights too.
Lord Brown of Eaton-under-Heywood
Does the noble Lord accept that the Doogan case correctly decided and accurately states the law as it has been for the last 50 years under the 1967 Act and that these amendments do no more and no less than state the position as it is now authoritatively decided by the Supreme Court in Doogan?
Lord McColl of Dulwich
Yes, I accept that entirely, but we do not necessarily have to abide by that decision. If people feel strongly that it was the wrong decision, they have the right to come to Parliament to produce legislation and try to get it through to change that. That is the right of Parliament. Parliament decides, not the courts. The courts have to interpret what Parliament has said. Sometimes Parliament rushes legislation through so quickly that there are loopholes and problems that need to be corrected. It is not the job of the courts to produce the law.
Baroness Tonge (Non-Afl)
Will the noble Lord define what he means by “facilitate”? The amendment refers to someone “participating in a hands-on capacity”—that is the person who is actually going to do the abortion. The secretary who makes the appointment facilitates the abortion.
Lord McColl of Dulwich
Facilitate means a great number of different things, but the 1967 Act did provide—
Baroness Tonge
My point is that if a secretary in a hospital or a clerk who was involved in this service had a conscientious objection to abortion, would he or she see it as facilitating the abortion? Is that what the noble Lord is referring to? Because it applies to everybody.
Lord McColl of Dulwich
If she has a conscientious objection to it, then she should not be obliged to do it, because the 1967 Act specifically said that people did not need to do it. Acts of Parliament should not force people into doing things against their conscience—that is not the function of Parliament.
Lord Alton of Liverpool
The noble Lord makes a very good point. Indeed, a case was referred to earlier in Committee concerning Barbara Janaway, who was exactly what the noble Baroness, Lady Tonge, described, a medical secretary. She said she would not, “set the ball in motion”, as a result of which she lost her job and the courts upheld that she should not be able to continue in that post. The debates in 1967 in the House of Commons did not consider cases such as that, because it was not envisaged that that might be a problem. That is surely why the noble Lord is right in saying that although the Supreme Court may rule in a particular way and say that that is where the law now stands, it is the job of Parliament to say that perhaps the law now needs to be changed.
Lord McColl of Dulwich
Thank you—that is very helpful.
Somebody did suggest that there was not a great number of people with a conscientious objection. The NHS employs 1,200,000 people. Surely they can find enough people who would not be offended to be asked to do abortions. Has anyone thought about that? No. Surely it is possible for the NHS, with such a large workforce.
Lord Cashman
Again, I come back to the provisions in Clause 1(2). The noble Lord says that there are enough people within the National Health Service—for quite a few months I was a porter at the old Westminster Hospital—but his argument, I believe, goes that there will be other people who could do it. For that to happen, you need to delegate and pass it on, but according to Clause 1(2),
“‘participating in an activity’ includes … delegation … or supporting of staff in respect of that activity”.
Lord McColl of Dulwich
There are 1,200,000 employees in the NHS. Surely there are people who can do the delegation, so there would not be a problem.
Lord Cashman
My Lords, perhaps I have not made myself clear. There would be no duty on the person who did not want to be engaged in the process to delegate it onward to somebody else, according to the provisions of Clause 1(2).
Lord McColl of Dulwich
That is exactly right but, as I keep saying, there are hordes of people around—1,200,000 people—so you can surely find somebody who can delegate it. The noble Lord keeps pointing to the Bill, but surely there are so many people around in the clinic that somebody can do the delegation and make the arrangement.
Lord Alton of Liverpool
My Lords, I am sure that the noble Lord is right in his interpretation of the Bill. It lays no duty on any other person to carry out that delegation and he is correct that there would be other people working in the service who would doubtless carry on as they do now. One abortion takes place every three minutes in this country, which is 20 every hour, 600 every working day and more than 200,000 every year. There have been more than 8 million abortions since 1967. Clearly, there is no shortage of people willing to participate in such procedures, but this Bill is about those who are unwilling to participate in them.
Lord Cashman
Before the noble Lord, Lord McColl, replies, at the moment there is a duty to refer, but that duty would be overruled by Clause 1(2).
Baroness O'Loan
My Lords, delegation and referral are not the same thing and what is provided for in the Bill is a right to conscientiously object to delegation. I beg the pardon of the noble Lord, Lord McColl—I should not have interrupted.
Lord McColl of Dulwich
I am delighted to be interrupted. A debate is about toing and froing, and there is not enough of that.
If we use the law to impose an approach that is intolerant of conscience, forcing some people out of the medical profession and, effectively, dissuading others from joining it—that is an important point—many people will suffer as a result. We are already short in recruiting new doctors and these amendments are the last thing that we need. In the medical profession, the greater our overall capacity, the greater the capacity to provide abortions and, as we are trying to say, there are plenty of people without conscientious objections.
On the suggestion that we should adopt the amendments because they reflect what the noble and learned Baroness, Lady Hale, suggested in the Doogan judgment, we have mentioned, first, that we do not have to be constrained by her judgment; we are at liberty to come back and change the law, if it is the will of Parliament. Secondly, in the noble and learned Baroness’s judgment, she recognised that there are two potential ways of interpreting the intention of Parliament with respect to conscientious objection: a broad way and a narrow way. She said that,
“a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to ‘actually taking part’, that is actually performing the tasks involved in the course of treatment”.
She concluded that,
“the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed”.
We are trying to change the law so that it is quite clear that that is not so, and we have every right so to do.
This Bill is timely and it is a liberal measure that should get the support that it needs. By contrast, the amendments are deeply mistaken, for three reasons. First, they will hurt the service providers by imposing an ugly uniformity that will result in many more cases of people such as Mary Doogan losing their job. Does the noble Lord, Lord Steel, whose Bill it was in 1967, agree that the decision in Glasgow to sack Mary Doogan because of her conscientious objection to being involved in an abortion was the right decision? She was a wonderful midwife and had done more than 5,000 deliveries. She was a very valuable member of the team. Does the noble Lord think that was the right decision?
Baroness Tonge
My Lords, I was unable to speak at Second Reading and I apologise for that—I was at a family funeral, as it happens—but I feel strongly about this issue. I qualified in 1964. I was a medical student and a junior hospital doctor in the days before the Abortion Act of the noble Lord, Lord Steel. I remember well the gynae wards and the women who had had unsafe, septic abortions. Some of them died. In the early 1970s, I was working in Birmingham in general practice and family planning, when the professor of obstetrics and gynaecology refused to have anything to do with the new Abortion Act. The noble Lord, Lord Winston, might know more about management in those days than I do but, because the professor was in charge of what his department provided, he absolutely forbade abortion to take place in that department. Perhaps the noble Lord remembers him.
Lord Winston
As the noble Baroness has mentioned my name, perhaps I might add that there was a case of a president of the Royal College of Obstetricians and Gynaecologists who was absolutely opposed to abortion, so this is not unknown in the profession.
Baroness Tonge
The point that I wanted to make is that, as a consequence, in whichever way we now plan, purchase and provide services for patients, if someone in management—the chief executive—is against abortion, could that mean that they would conscientiously object and refuse to have abortion as part of the service in that area? It is extremely complicated.
If in this country abortion is legal, under the parameters set by the Act, then it should be implemented equally for all women in this country. It should not be at the whim of individual practitioners, whether they be doctors, managers or secretaries—whoever is going to affect the service delivery to the women of this country if they are allowed to conscientiously object. If they do so, they should not join the service in the first place. No one is obliging them to. There are plenty of jobs around that do not involve abortion, so why do they not do them?
I have a bit of experience. At one time, I was head of women’s services for a health authority in London, during which I was in charge of family planning and liaising with GPs—and, in fact, of setting up an abortion service because the hospital doctors were finding it difficult to cope. We franchised it out to the BPAS, as I think it was at the time. That was one of the first times that that had happened. It was very well and efficiently run but when I think of the number of people involved in setting up that service, both when it was in the health service and when we franchised it out, if everyone involved had had the ability to conscientiously object, that would have completely upset the service. I do not know how we would have got it going.
To extend it a little more, if you have a certain number of people exercising a conscientious objection in one field, that may put extra strain on people in other fields who are not normally employed in that service to fill in and to do that job for them. You would be setting up a situation that could disrupt all the services in a hospital, not just the obstetric and gynae services.
Finally, I say to the people who oppose abortion that I fully understand their reasons. I understand the religious beliefs behind it in some cases. However, whether a country provides safe abortion or not, the same number of abortions take place because, if a woman cannot access abortion, like the women in Birmingham in the early 1970s, they will go to illegal practitioners, they will endanger their life and often they will die. When people oppose abortion, they are actually providing a route for some women to lose their lives. That is a terrible thing to have to say, but it is true.
Baroness O’Loan
The noble Baroness seems to be suggesting that we are attempting in some way to restrict access to the three areas of healthcare services. That is absolutely not the case. The Bill provides that and acknowledges the current responsibilities of the Government to provide a National Health Service with the services that Parliament has agreed should be provided. I want to make that clear because I am not sure the noble Baroness understands it.
Baroness Thornton
The Bill does not do that. That is what this scrutiny is about. It really does not. If the noble Baroness really wants to make progress, she needs to bring forward amendments which clarify that. She has not done so, so these amendments are about probing that and, in particular, this issue. Rather than exhorting us to say what the Bill does not do, the noble Baroness needs to examine it and take on board its unintended consequences. That is what this House exists to illustrate.
Baroness O’Loan
That is exactly what we are doing. This is a very useful debate.
Baroness Tonge
I was not implying that the noble Baroness was trying to destroy the Abortion Act completely. I entirely accept that, but what she is doing could lead to the service being very badly distressed and may have the same effect in the end.
Baroness Flather (CB)
My Lords, I have been trying to stand up for some minutes. First, I pay tribute to the noble Lord, Lord Steel, who introduced the Abortion Act. There are very few times when something like that has gone through Parliament. The Earl of Arran took the Sexual Offences Act, which protected gay consenting adults, through this House. They were great milestones that looked to the future. I fear that this Bill is looking backwards. I do not like the idea of anything looking backwards. I will say more about not providing help for terminally ill or dying patients. We talked about human rights. I believe it is a woman’s human right to be able to access abortion. As the noble Baroness, Lady Tonge, said, abortions take place anyway and women die. That is the difference. We do not want women to die, but if a woman cannot bring up a child or does not want a child, it is better that she can access abortion.
Baroness Meacher (CB)
My Lords, I was not planning to intervene in this group, but the entire debate has focused on abortion. Amendment 1 also applies to the withdrawal of life-sustaining treatment at the end of life. That is a totally different situation from abortion. These people are finding life unbearable, they are finding their treatment intolerable, they are facing the fact that they are dying, and they want something to happen. They want to be able to have their life-sustaining treatment withdrawn. Of course under current law someone with a conscientious objection who might be expected to help with that process has an absolute right not to do so. The great concern of those of us concerned about the end of life rather than the very beginning of it is that a lot of people towards the end of life find themselves in hospices, and we hope more of them will do so over time.
If you extend conscientious objection to supervisors, managers and so on, hospices do not have armies of staff. The noble Lord, Lord McColl, made the point that there are 1 million-plus people in the NHS, so surely there are people who can undertake abortions. Yes, but if you are an elderly, very sick person in a hospice and the manager of that hospice, the supervisor or someone else has a conscientious objection, you are likely to find yourself unable to exercise your absolute right to have your life-sustaining treatment withdrawn. That right cannot be fulfilled. The GMC makes very clear in its guidance that no one should be able to exercise a conscientious objection unless they ensure that someone else will take over that role, but that is likely to be impossible.
Baroness Finlay of Llandaff (CB)
Does my noble friend Lady Meacher recognise that hospices do not provide life-sustaining treatment? It is the very ability of patients not to continue with whatever their life-sustaining treatment was—whether chemotherapy, artificial nutrition and hydration or ventilation—that is in question. In those units, symptom control is managed when patients refuse consent to continue. To treat a patient who has had life-sustaining treatment and says, “I do not want any more”, would be assault in law. That refusal of consent must be respected and, in the process, you have a duty of care. That duty of care is to provide all other care and comfort measures during the process as they die of their disease. That is a natural process, and hospices are about accepting death. You will not find people in hospices being ventilated against their wishes. There may be some people on non-invasive ventilation because they want to continue with it while having other care. We must be clear that the Bill will not jeopardise hospices. I will speak on the Bill in a moment, but would like to put that on record.
Baroness Meacher
I understand that in many hospices the emphasis is, as my noble friend said, on symptom control—in other words perpetuating, keeping things going—rather than enabling, encouraging and helping somebody to take their life in a dignified way.
Baroness Finlay of Llandaff
I am sorry, but I have to intervene again. I should have declared my interest as palliative care lead for Wales, as vice-president of Hospice UK and of Marie Curie, and as having set up a lot of hospices. Symptom control is not life-prolonging treatment; it is about keeping people comfortable during the time they are dying of their disease. It may run in parallel with other treatments and it may be provided when other treatments are withdrawn, but it certainly does not prolong life per se. There is evidence that if you leave people in pain, it is a powerful drive to respiration. When you make people comfortable and relieve their pain, they can let go of life and die, but it is not the morphine that has killed them, it is the disease. Symptom control does not force people to stay alive.
Lord Winston
My Lords, sometimes groupings in our debates make things difficult for people who are trying to table amendments, and I have been trying hard to be relevant to the amendments but at several points in the debate over the past hour and three-quarters, reference has been made to things in the amendments which I tried to table.
I want to say one thing at the start. There are two things that I find very difficult in this House. First, there is the issue of sometimes filibusters occurring during debate—and I am very pleased that there has not been a filibuster this afternoon although, sadly, there was this morning. It is very unfortunate. I am well aware that we have just seen Old Father Time come into the Chamber; he has not actually got a scythe yet, but I suspect that he is about to cut us short at the appointed time.
That is one thing. The other issue is the question of declaration of interest. It is very difficult, but I make it clear that in these ethical and moral debates, of which this House is justifiably very proud, we do not always declare where we might actually have a conflict of interest. For example, I make it very clear that I am declaring a conflict of interest as an orthodox Jew who will have certain limitations on how I would do termination of pregnancy. But I respect absolutely the autonomy of the patient in front of me, and one amendment that I have put down later on would argue that in fact you have a duty to ensure the autonomy of that patient, as your autonomy, is equally respected, and to find some solution. In practice, that means consulting colleagues and trying to work that out.
I have a regard for the noble Baroness, Lady O’Loan, and her Bill, but I think that we should be prepared to explain where we are coming from during these debates, and so often we do not. I remember some time a few years ago on assisted dying that I spoke passionately against a particular amendment which would have allowed some assisted dying. At the end of that debate, after I had spoken, people on my Benches said, “Why aren’t you coming through and voting with us?”. I said that I had said what I had to say but that I felt, as an orthodox Jew who would not assist an assisted dying, that I did not think that I could go through the voting Lobby. That sounds to me the appropriate way.
Having said all that, I do not want to hold up this debate—but I fear that we are getting very close to the end. I want to make a few points on points that have been raised so far. My Amendment 2 would allow the recognition that, most of the time, in spite of what the noble Lord, Lord McColl of Dulwich, said, it is not the medical practitioners in my experience who have a conscientious objection but a whole range of other people—the operating department assistants and the porters, for example. Again and again, I have seen porters in hospitals where I have worked who have felt that they would not want to wheel a trolley into the room where a patient is going to have a termination of pregnancy. Sometimes one has been able to accommodate that. However, as we all know, the NHS is under massive strain with resources, and that becomes difficult.
I believe absolutely, and in all conscience, that the amendments that I have tabled would make this Bill workable; I think that that is possible. There is a way through this. The noble and learned Lord, Lord Mackay of Clashfern, kindly referred to one of the amendments that I tabled, Amendment 25. One point of that amendment is that it shows that the Bill covers not just obstetrics, gynaecology and termination of life but pretty well every medical area that we have specialities in, where we really have to reflect on these issues of conscience. That has been spelled out in that amendment—although it is an open question as to whether it is well written or not—to make it very clear that this affects the health service to a very great extent, and this is an issue for this Bill.
At the moment, I think that the only other fellow of the Royal College of Obstetricians in the Chamber is the noble and learned Lord, Lord Mackay. In the debate in 1989, his speech introducing the Human Fertilisation and Embryology Bill was the most amazing speech. In 20 minutes, he did what nobody has been able to do in the journal Nature, in my profession. It was a brilliant exposition of where we are, and I am hoping that I might persuade him, as one of the two fellows in this Chamber, to set up in private practice when this is over, doing in vitro fertilisation.
The difficulty has become the definition of what conscientious objection involves, as my noble friend Lord Brennan, said, and that is something that we should look at. We cannot simply have the narrow view of a few professionals who would be affected by this measure. It has to cover the whole service, as it does, for example, with in vitro fertilisation.
Lord Alton of Liverpool
My Lords, in his remarks just now the noble Lord invited me to contribute at this point in the Committee’s proceedings. I spoke at Second Reading and I do not intend to repeat what I said then. The noble Lord, Lord Steel, will not be surprised that I oppose his amendment. Nevertheless, over the nearly 50 years that we have known one another, I have always been grateful for the respect he has shown to an alternative view to the one he puts now and has put in the past. I was particularly grateful to him when this became a matter of policy in my former party. The noble Lord, Lord Steel, also resisted it becoming party policy because, as he said, it would polarise attitudes and mean that some people could no longer follow some issues of conscience because of party diktat.
Some 51 years ago, when I was at school, I wrote to the then leader of the noble Lord’s party, the late Jo Grimond, asking whether the Abortion Bill, which the noble Lord had placed before the House of Commons, was a matter of party policy or conscience. I was given the forthright reply: there are different views about this and it is a matter of conscience. It was never a problem for me, as the only new member of the parliamentary Liberal Party in 1979, to serve under the noble Lord, Lord Steel, and, indeed, to be his Chief Whip. Reasonable accommodation—how we accommodate one another—which I mentioned in my earlier intervention, is at the heart of what this debate should be about. The noble Lord, Lord Winston, made some telling and helpful points in his contribution. The noble Lord, Lord Steel, said: “This isn’t the way to go about this”, but he would agree that, 50 years later, many things have come to pass that were never anticipated during the debates in 1967. A proper review—perhaps outside the proceedings of this Chamber—of the legislation, its implications and the ways we can protect people such as Mary Doogan is long overdue.
She spoke in your Lordships’ House and her case goes right to the heart of today’s debate. She is, as the noble Lord, Lord McColl, said, an extraordinary woman who was involved in delivering over 5,000 babies and said in an interview:
“It is not about religion. It’s about conscience”.
She went on:
“It goes against everything we stand for … the women I cared for would never ever have known my views on abortion”.
This is very important. Here is someone who has been driven out of her calling in life. She did not go into midwifery to carry out abortions; she went into midwifery to deliver babies. Although I understand the reasons why the noble and learned Baroness, Lady Hale, found as she did—my noble and learned friend Lord Brown of Eaton-under-Heywood was right to refer to the judgment earlier—it is up to this place, as the noble Lord, Lord Brennan, told us, to then deliberate and decide whether the law should be allowed to continue to stand in that way.
Consider for a moment the changes in the law since 1967 and how they impact on people who may have a profound conscientious objection to the law. One is, for instance, the extension of the Act in cases of disability right up to and even during birth, on the grounds of things such as club foot, hare lip and cleft palate, let alone Down’s syndrome—90% of all babies with Down’s syndrome are now aborted. If I were working as a medic and was told that I had either to participate in—to be hands-on—or to facilitate such things, I would rather lose my job than do that. This is where I disagree with the noble Baroness, Lady Tonge, who said that such people should not join the service. Who do we lose if we take such an attitude to people who, yes, have a different view from the noble Baroness but nevertheless make an extraordinary contribution to the health service?
Baroness Flather
This is a very interesting point. Should they leave the service or not? I had a very recent experience when my husband was taken ill; he was dying and was taken to hospital. We had to make a decision about whether to keep his breathing going. My sons and I were there discussing this matter and it was a very difficult time for us. The doctor in charge came and spoke to us and told us what the situation was. We decided it was not the right time to prolong his life. If the doctor had then said, “I’m sorry, I have to get someone else to do this necessary job. I can’t do it because I object to it”, that would have been terrible. You can say that he should have prepared for that in advance, but how can he prepare for everything in advance? You do not know when a dying person will come into hospital.
Lord Alton of Liverpool
The noble Baroness is of course right; you cannot ever say with any certainty what will happen and how long someone will live. My noble friend Lady Finlay intervened on that point earlier and, at Second Reading, my noble friend Lady Richardson gave another good example, which I can come back to.
Baroness Flather
My noble friend Lady Finlay’s example is perfectly correct but it is not the same as my example. My example is that my husband had got to a stage where he really did not know what was going on. My noble friend’s example is of course totally different—and it is a very good thing that people have hospices to go to.
Lord Alton of Liverpool
We are agreed about that. The point I made at Second Reading when my noble friend Lady Richardson intervened on a similar point is that we do not need to go to heroic lengths—that is the phrase people often use—to keep alive someone who would otherwise be dying. I think we sometimes confuse these two things. Let me return, if I may, to the particular point about abortion.
Baroness Tonge
Very briefly, by way of personal explanation, I hope I did not imply that people should leave the service if they were required to perform an abortion. I was saying that there are many specialties to go into in medicine. My goodness, you can do anything in medicine, from management and pen-pushing right down to—well, I will not say “down to” because it would demean whoever I got down to. There are many branches of the medical profession; there is no need to go into obstetrics and gynaecology in the knowledge that you will have to do things totally against your conscience.
Lord Alton of Liverpool
‘I was very grateful that the gynaecologist who saw my own children into the world did not support abortion. That gave my wife and I great confidence in the lady who was our gynaecologist. I think there should be scope within the service for people to have alternative views. If the phrase “don’t join the service” that the noble Baroness used were to apply, it would mean that people like that would not be able to join the service in the first place.
Another change that has taken place in these years is that it was never envisaged in 1967 that abortion would happen on a regular day-by-day basis on the scale on which it is taking place. In fact, the noble Lord, Lord Steel, often said that it would occur only in rare and exceptional circumstances. There are now examples of some people who have had eight abortions under the National Health Service. You have to ask the question the noble Baroness often asks: “Why is not more done earlier to find alternatives to this?” That too should be in the scope of an inquiry into the workings of the 1967 Act, and so too should be the issue of gender abortions. If I was working in the National Health Service and was told that I had to facilitate the ending of the life of a little girl merely because she was a little girl, I would say no. The 1967 Act surely does not allow for that, and yet we know that there have been such cases and that the authorities decided not to take any legal action. Indeed, there was a vote in another place on a Bill to outlaw such gender abortions. It was lost by 201 votes to 292, so this is not the realms of fantasy. Noble Lords have to ask themselves precisely what their red line would be in regard to questions such as this.
I conclude by giving two opinions from people who have thought about these things in great detail. One is from Professor Andrew Tettenborn, who said:
“The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern … and so organisation rather than participation is increasingly what will be demanded from … unwilling staff”.
I also refer the Committee to the review of Dr Mary Neal, senior lecturer in law at Strathclyde University, who said:
“The core purpose of any conscience provision is to protect individuals from having to share in moral responsibility for something they consider to be seriously wrong. Since the current law leaves some of those who would share in responsibility unprotected, it fails to fulfil this core purpose”.
So when the noble Lord, Lord Steel, said in 1967:
“The Bill imposes no obligation on anyone to participate in an operation”,
I believe he was sincere. When he also said that the “conscience” clause,
“also gives nurses and hospital employees a clear right to opt out”—[Official Report, Commons, 13/7/1967; col. 1318.],
I believe that is what he intended. I do not believe he intended that people such as Mary Doogan should lose their job. That is why my noble friend’s Bill is so important.
Baroness O'Loan
My Lords, I have listened with great care to the various speakers who have articulated their views on this group of amendments. It has been a very profound and interesting debate and I thank all contributors.
As I said at Second Reading, the Bill does not seek to limit access to abortion. It could never result in a patient who had expressed a wish not to be resuscitated in an advance decision being forcibly treated. It would not result in treatment, hydration or nutrition being withdrawn from someone who wanted to live. For the avoidance of doubt, it is only about enabling medical practitioners to withdraw from treatment which they perceive for moral or philosophical reasons, or for reasons of belief, to lead inevitably to death, whether of a living person or of an unborn child. It is not about doing things to patients; it is about some medical practitioners not having to do some things.
I want to allude for a moment to the various contributions on the subject of what the noble and learned Baroness, Lady Hale, said. I endorse what the noble Lord, Lord Alton, said—that Parliament could not have envisaged the way in which the abortion law would develop. The noble and learned Baroness, Lady Hale, chose the narrow meaning on the basis that it was more likely to have been in the contemplation of Parliament when the Act was passed. She acknowledged the existence of a broader interpretation. As the noble Lord, Lord McColl, very clearly said, we have the right, as a Parliament, to change things. I am suggesting that we need now to contemplate the situation in 2018, not the situation in 1967, so it is not about refusing people access to treatment. There have been suggestions that it is about denying patient autonomy. A patient does not have and never has had the right to compel a particular practitioner to do a particular medical procedure. However, they have the right to a service and the right, if they want it, to a second opinion, and that must continue.
Baroness Barker (LD)
My Lords, time is against us. For me, that is deeply frustrating because I have listened with great care to a number of very important points as well as a number of somewhat contentious allegations and assertions being made throughout the debate, each and every one of which should be subject to a great deal of scrutiny in your Lordships’ House.
In the short time available to me, I wish simply to say this. The noble and learned Lord, Lord Mackay, as ever, gave one of the most interesting and thought-provoking speeches. He talked about the nature of conscientious objection, and I think that issue needs further examination. It is important to look not only at the nature of conscientious objection—some such objections are absolute, others are not—but at the context in which it is exercised. If there has been a fundamental flaw in this debate, it is that we have not debated those two things together. That has enabled claims to be made on either side that I believe are not fully justified.
From where I am sitting and from the briefings I have had, I would say that conscientious objection must seek to balance the rights of healthcare professionals to act within their own ethical principles with the rights of patients to access medical care. The noble Baroness, Lady O’Loan, was half-right when she said her Bill as drafted would not remove the necessity for the NHS to provide access to abortion care. No, it would not; it would simply frustrate it. In practice, that would mean the denial of service to a woman. The exercise of conscience is not without effect.
The noble and learned Lord, Lord Mackay, said he is relieved that he is not a medical professional. So am I, but I do pay great attention to those who are. In this case, notwithstanding the point rightly drawn to our attention by the noble Lord, Lord Winston—that there is not total agreement among members of the professional bodies—those bodies have considered this issue over the last 60 years. They were involved in the discussions before my noble friend came forward with his landmark legislation, and over time came to conclusions that their members in the NHS—all 1 million of them—have to accept. They are the people for whom this is not a theoretical debating point; it is the exercise of life-and-death judgment.
Medical ethics are not the preserve only of those who have conscientious objection. Healthcare professionals who provide these services do so for the good of their patients, and this Bill, as currently drafted, threatens that. Therefore, at this late stage, I have to say to the noble Baroness, Lady O’Loan, that I welcome her invitation to talk, although I do not hold out much prospect of agreement because I think that we come from fundamentally different places.
The House should think long and hard about the words of the noble Lord, Lord Turnberg, regarding what the Bill might mean. In doing so, it is incumbent on all of us to consider whether this is an improvement on the point that my noble friend Lord Steel reached 50 years ago in anticipation of the problems that we now seek to address. I support the amendment.
Baroness Thornton
I just want to add two words to that. The noble Baroness, Lady Barker, is completely correct. The noble and learned Lord, Lord Brown, and my noble friends Lord Turnberg and Lord Cashman have summarised the situation. I think that the noble Baroness, Lady Barker, is right: the Bill does not improve the position that the noble Lord, Lord Steel, came to all those years ago.
I say to the noble Baroness, Lady O’Loan, that assertion is not evidence. I read her speech at Second Reading in which she used the word “evidence” but did not give us any evidence. Assertion is not evidence. In this Chamber, when you want to make a case and prove it to noble Lords under the scrutiny system, the evidence has to be evidence and not assertion.
Lord Steel of Aikwood
My Lords, we are running out of time and the Committee will want to try to dispose of this amendment before we rise. I begin with a note of agreement with the noble Baroness, Lady O’Loan, which is that this debate has been of a very high order. There has been no waste of time and no filibustering, and it has been the House of Lords at its best.
The reason I began by quoting from the document produced by the Church of England in 1965 is that that was the basis on which the Church of England and subsequently the Church of Scotland, to which I belong, and indeed the Methodist Church endorsed the reforms of the abortion law. Their endorsement rested very much on the arguments produced in that report. However, I agree with what the noble Viscount, Lord Craigavon, said: we have to respect those who took a very different view.
It will not surprise noble Lords to know that, because of the 50th anniversary of the Abortion Act, I have lately been getting quite a lot of correspondence—half fan letters and half hate letters. If I may quote from one that came in on Wednesday, it will show the sort of thing that we ought to take into account:
“For more than 46 years laws which lethally discriminate against new human life have brought about the senseless deaths of more than 8,000,000 unborn babies. Abortion is truly the holocaust of our time, but the one ignored by the mainstream media, and, it seems, just about everyone else too”.
It is because I sympathised with and respect that view that I undertook, in discussion with the Catholic seminary, the introduction of the conscience clause. The problem I have with the Bill is that it is not clear where the line is to be drawn. For example, if you are appointed as the chief executive of a health board, everything underneath that health board is under your jurisdiction. What happens if you have a conscientious objection to abortions being carried out? That is the fundamental problem with the Bill: nowhere is a clear line drawn.
Lord Steel of Aikwood
Perhaps we should get together outside of this House and work out a framework that is workable. I do not believe that this Bill does it. I was right to put forward this amendment. It has been a first-class debate, but I now beg leave to withdraw the amendment.