Conscientious Objection (Medical Activities) Bill [HL]

Debate between Lord Brown of Eaton-under-Heywood and Lord Brennan

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

[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 It effectively replaces Section 4 of the Abortion Act and, if necessary, on Report that section can be repealed by an amendment to this Bill.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—

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Brown of Eaton-under-Heywood and Lord Brennan

Tuesday 11th March 2014 Lords Chamber

[Lord Brennan (Lab)]

My Lords, I remind the House that I served for 10 years as an assessor for compensation for miscarriages of justice. That role required me to assess compensation, not to determine eligibility. However, in order to determine compensation I was equipped with the factual basis for the ministerial decision to allow compensation to be awarded.

We are here faced with a choice between two different ways of seeking to achieve justice, and the key test for this House should be which way better serves the interests of justice. The Lords’ amendment creates a stiff test: you have to show conclusively—it is a tough obstacle—that the evidence was so undermined that no conviction could possibly be based on it. The evidence so undermined is a matter for judicial assessment in this context. Whether it makes a conviction impossible to sustain is a matter for judicial decision. Both the assessment and the decision arise in the process of whether guilt has been established, not whether innocence has been shown.

Because of that well established system, judges, both at trial and in the Court of Appeal, look at these matters of assessment and decision very carefully. The process is a fundamental part of the system; it is well established. The judges, the lawyers and the legal commentators know what is happening. It accords with what we have traditionally thought to be the best of legal principle in applying our criminal law. A miscarriage of justice is an aberrant product of our criminal law going wrong in its process. The system I have just described has sufficient clarity in its process so that when the test in the Lords’ amendment is applied to it, justice will usually be done if there is a miscarriage of justice.

What of the government test? The words “innocent” and “did not commit” we can treat as synonymous for the purpose of this argument. The government test involves the Minister looking for material to show innocence from proceedings that were designed to establish guilt. Other than the Criminal Cases Review Commission, of the potential sources the key source of his or her approach will be what happened in court then, or afterwards if there was an appeal, or a newly discovered fact well after that. So the context of the ministerial decision will be outwith our present system.

Indeed, the Minister will be applying himself or herself to making a quasi-judicial decision: should this person, in justice, be given compensation for this miscarriage of justice? It is a very serious decision most pertinently determined by solid evidence, and from where is he or she to extract it in our present system? The new fact which establishes innocence or that someone did not commit the offence has to be very powerful indeed—for example, irrefutable DNA evidence or a subsequently discovered group of witnesses who prove a rock solid alibi. There are very few sets of circumstances.

It will be of significance to this House—and I trust to the other place if this goes back to it—that no one on the government side in any debate so far has chosen to illustrate by example how their test would work and why the Lords’ test is not appropriate. Although proceedings before the assessing Minister are confidential, it is open to the applicant to make them public. I shall refer to two public examples which show that the Lords’ test would work in justice and the government test would not.

The first is the “arms to Iraq” case, in which some of the defendants got to court and no evidence was ultimately offered against them—there never was a trial. Others of those cases were stopped during the trial and in yet more cases there were acquittals. The result of that set of circumstances meant that in the ones where no evidence was offered or the judge stopped the trial, there never was an appeal; there never was any new evidence because the scenario was well known. We did what we thought was legal because the government agents and people responsible said that we could do it.

In those circumstances, with no Court of Appeal judgment, on the test in the Lords’ amendment it is almost certain that those people would have received compensation. If you do not offer any evidence, how can you possibly say that the conviction could be sustained? If the judge stops it on the basis of the Lords’ test, why not give compensation? How could these men “prove their innocence” in the context of the government test?

There is another very telling example. Many of you will remember the case of Colin Stagg and the murder of Rachel Nickell on Wimbledon Common. She was stabbed to death, with 49 blows, in front of her two year-old child. Stagg was one of many arrested and he was eventually charged. The judge threw the case out at the end of the prosecution case. This was in the mid-1990s and Stagg was vilified in the national press almost from day one. When the judge stopped the case, he went back to Wimbledon and lived by night because he was hounded and harassed in the street by day. He lived a hermit life for years. Eventually the Minister decided, on all the material before him, to grant compensation, and I made an award. It was only a year or two later that someone else, Robert Napper, was arrested for that murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was confined to Broadmoor for the rest of his life.

How can anyone in this House plausibly suggest that Stagg should not have got compensation until someone else was proved to have been the person who killed Rachel Nickell? Who would not regard that as an affront to justice? The Minister at the time, in applying the law on eligibility at the time, gave Stagg an award. Under the Lords’ test he would get such an award today; under the government test he would not—he would have to wait and endure circumstances until someone else was shown to be the murderer.

[Lord Brown of Eaton-under-Heywood]

My Lords, I just ask my noble friend to agree that, under any test, neither of these cases would qualify for compensation because compensation is payable not on an initial acquittal, a first appeal or an appeal brought in time, but only ever on a late appeal. They would therefore not have qualified anyway: it is only for a restricted group of cases in which they are not included.

[Lord Brennan]

Now that I am in the same House as the noble Lord and not appearing in front of him as an advocate, I very firmly disagree. Compensation for miscarriages of justice does not depend on a successful appeal. For years, in certain cases, awards have been made without such an appeal. In the examples I have given, no contrary example has been given thus far to show why the other test proposed by the Government should be put forward. I make the following concluding submission: the Lords amendment is based on well founded principle—the Adams terminology—arising from a well established system of criminal law and criminal justice. The government test is neither of those things. The Lords amendment better serves the interests of justice and this House should send it back to the Commons for reconsideration by MPs and by the Government in the interim.