Crime and Policing Bill

Viscount Hailsham Excerpts

Report stage
Wednesday 18th March 2026 Lords Chamber

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

As the noble Baroness, Lady Falkner of Margravine, has already pointed out, if Amendment 422E is agreed to, I am unable to call Amendments 423, 423ZA or 423A by reason of pre-emption.

[Viscount Hailsham (Con)]

My Lords, I will speak to Amendment 423 which is in my name. The purpose of my amendment is to see if it is possible to effect a compromise between strongly held opinions. If a compromise is not possible, then subject to pre-emption, I could certainly support Amendments 422E, and I could also support Amendments 424 and 425. At Second Reading of this Bill and in Committee, I expressed my views on what was Clause 191 at that stage. I do not wish to in any way reiterate the detail of what I said. Suffice it to say that I am much closer to the position of the opponents of Clause 208 than to its supporters.

However, there are two general points I would like to make at this stage. First, it is very difficult to distinguish in principle between a child that is just born and a child that is about to be born. Secondly and consequently, to extinguish the life of a child that is about to be born can be justified only in the most compelling of circumstances. This is not just a matter of personal morality. It is a reflection of the value that society as a whole, and Parliament in particular, has put on human life. I hope that these two propositions will be accepted as true by your Lordships and will inform the debate we are to have.

In urging a compromise, I would ask the House first to consider the provisions of the Abortion Act 1967, because that Act permits, in certain circumstances, late-term abortion. Without going into too much detail, Section 1(1)(b), (c) and (d) of the 1967 Act permit a late-term abortion in the following circumstances: when it is necessary to prevent grave, permanent injury to the physical or mental health of the mother; when the pregnancy threatens the life of the woman; and when there is a substantial risk that the child will suffer from such serious abnormalities as would result in serious handicap. The point that I make is that the existing provisions in law meet many of the concerns that have been expressed in support of Clause 208.

However, I recognise that the proponents of Clause 208 do not regard the existing law as sufficient. It is therefore with that in mind that I have tabled Amendment 423 in the hope of addressing those concerns. Proposed new paragraph (a) in my amendment reflects the language of the Infanticide Act 1938. That statute was reviewed in 2006 by the Law Commission and its terms were confirmed. My amendment proposes that it would be a defence to a late-term abortion that

“the balance of the woman’s mind was … disturbed by reason of her pregnancy”.

The amendment provides that the burden is on the prosecution to prove the defence beyond reasonable doubt. In proposing that part of the amendment, I recognise that, in logic, if such a defence should be available in respect of the death of a child immediately after birth, it is very difficult to say that such a defence should not be available in respect of a child immediately before birth.

I turn to proposed new paragraph (b) of my amendment, which seeks to meet the concerns that have been expressed in your Lordships’ House in respect of late-term abortions that result from domestic abuse. That is, I am sure, a concern to many of your Lordships. I have addressed that very precisely in paragraph (b), which I hope will reassure noble Lords who have that anxiety.

The remaining part of my amendment addresses the distress that can be caused to a woman by the police investigation. First, I will make just two preliminary points. If it is necessary to create a criminal offence, one has to accept the necessity of an investigation, but one that has to be conducted with great sensitivity, which is the case of course when one is investigating allegations of rape and the victim of the rape has to be examined and talked to. It has to be done with great sensitivity. The second general point I come to is the one with which I began my remarks: is the distress caused to a woman by the investigation a sufficiently compelling reason to justify extinguishing the life of a child about to be born? In my view, the answer to that is no.

However, I accept that concerns remain and my amendment seeks to address those remaining concerns. The amendment provides that no investigation can take place unless authorised by a very senior police officer of the rank of superintendent or above. The superintendent must have regard to the defences set out in my amendment and, to echo a point made by the noble Baroness in moving her amendment, the investigation must be completed within 28 days: the initial authority being for 14 days, with two subsequent extensions of seven days, but no more.

To conclude—

[Lord Hunt of Kings Heath (Lab)]

Can I just go back to the point the noble Viscount raised a minute or two ago? He said that such investigations must be undertaken with great sensitivity. He referred to the investigation of rape cases. I put it to him that all experience shows that the police and, indeed, prosecution authorities sometimes find it very difficult to investigate such cases with sensitivity. How is he going to guarantee that?

[Viscount Hailsham (Con)]

I am not sure that I accept that. It is certainly true that when I started practising at the Bar, which was a very long time ago, investigations were not conducted with great sensitivity, but the police service has advanced a long way from that. So I do not think—I hope the noble Lord will forgive me —that I accept the premise that the police are crude or insensitive in their investigation. There may be individual cases, but in general, no.

I hope I will be forgiven now if I conclude. Clause 208 is a serious departure from existing law and practice. It was passed in the Commons on Report in a time-limited debate without the normal benefit of scrutiny in Committee or of pre-legislation consultation. I have tried to meet your Lordships’ anxieties with a compromise amendment. If there is no taste for that, so be it, and I will vote for the other amendments and clauses that I have identified, but I hope that your Lordships might reflect on the desirability of compromise.