Conscientious Objection (Medical Activities) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Cashman

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

[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.