Conscientious Objection (Medical Activities) Bill [HL]

Baroness Thornton Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 23rd March 2018 Lords Chamber

[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.

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[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.

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[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.

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[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.

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[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.

[Baroness Thornton]

Or not.

[Lord Alton of Liverpool]

Or not.

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[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.

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[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.