Baroness Berridge
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Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, can we please take the temperature down and respect the Clock? There are 10 minutes for Back-Bench contributions. Of course, many people want to get in, but please take the temperature down—there is no need to constantly interrupt others. Everyone can speak. We will come to the Cross Benches first and then go to the noble Baroness opposite.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, I will be as brief as I can. I shall start, as I did in Committee, by reiterating that the Government maintain a neutral stance on abortion in England and Wales. Many of the amendments in this group are similar or identical to those tabled in Committee. So, save in a very few cases, I shall not repeat the Government’s assessment of their workability. This means that if I do not explicitly mention an amendment, it is either because there are no workability issues or because I set them out fully in Committee. As a shorthand, I will refer to conduct that comes under Sections 58 and 59 of the Offences Against the Person Act 1861, and under the Infant Life (Preservation) Act, collectively as “abortion offences”.
I begin with Amendment 423ZA tabled by the noble Baroness, Lady Lawlor. It is unclear how this amendment is intended to work in practice—in particular, which party would bear the burden of establishing a lack of mental capacity and what the standard of proof would be. Thus, it is possible that it would create confusion for practitioners. Your Lordships may wish to note that the law already takes account of defendants’ understanding of their actions in various ways. It is unclear how this amendment is intended to interact with well-established criminal law principles.
Amendment 422E, tabled by the noble Baroness, Lady Falkner of Margravine, is similar to that tabled by the noble Lord, Lord Verdirame, in Committee, but it contains an additional requirement that a prosecution could not be brought any later than 12 months from the date of the alleged offence. Your Lordships will be aware that, other than for summary-only offences, there is, almost without exception, no statutory time limit for prosecuting criminal offences in England and Wales. The reason for that is that evidence may emerge over several years, so a limitation period would remove the ability to prosecute in cases where evidence of guilt came to light much later on. The introduction of a limitation period could lead to differences in outcomes depending on when evidence becomes available, the complexity of the case and the resources of investigating and prosecuting authorities.
Amendment 423, in the name of the noble Viscount, Lord Hailsham, is similar to the one he tabled in Committee, but it differs in three respects: it would broaden the scope of the specified defences; it would make provision for who must bear burden of proof in relation to those defences; and it would introduce additional provisions relating to police investigations. In relation to the workability concerns I raised in Committee, for the second and third of these differences there are some further issues. In relation to the burden of proof, the drafting is ambiguous. If the intention is that the defendant should bear the evidential burden, clarification would be needed. In relation to the proposed new provisions for police investigations, your Lordships may wish to note that decisions on whether to initiate, and the scope of such an investigation, are currently operational matters for the police.
Amendment 423A, tabled by the noble Baroness, Lady Barker, is also similar to one tabled in Committee. While the Government remain neutral on changing the criminal law, it is important that investigations into other offences, such as murder, manslaughter or infanticide under the Infanticide Act, are still carried out. Those offences would continue to be investigated and prosecuted by the Crown Prosecution Service if the test for prosecution is met. Your Lordships may wish to note that this amendment would be likely to trigger a review of any live investigations and prosecutions. However, we would not expect this to carry any significant resourcing implications.
Amendment 426C, tabled by the noble Baroness, Lady Wolf of Dulwich, is again similar to an amendment tabled in Committee. It might be helpful to remind your Lordships of the point that I made then, namely that the proposed new offence is not limited to obtaining abortifacient drugs for use in the termination of a pregnancy. Abortifacient drugs are not defined in legislation and are also used for non-abortion-related purposes. In addition, further amendments would be needed to clarify whether the offence was one that is to be triable either way, whether the maximum penalty on conviction on indictment should be the same as that on summary conviction and whether the maximum penalty in the magistrates’ court should align with its general powers, which update automatically should the limits on its sentencing powers change in the future.
Baroness Berridge (Con)
I would be grateful for clarification as to whether the Government have considered their own current inquiries into the grooming gangs. There was evidence there that:
“Victims and survivors were also critical about how easy it can be to obtain emergency contraception or abortion services without appropriate questions being asked”.
This evidence has been relied on consistently in Committee and on Report, yet there are concerns. Have the Government looked at that?
Secondly, in relation to the case that I mentioned in Committee, which contradicts much of what has been said, the comments of His Honour Mr Justice Cooke in Leeds Crown Court, in the case of Sarah Catt, very clearly state that this was a “cold calculated” decision that she took for her own convenience and self-interest. She took pills at 39 weeks and gave birth, and it seems she never revealed where the body was. She had a history of deceit and concealment—that is in the judgment of Leeds Crown Court. So have the Government considered, also in relation to other amendments about pardons, that this was conduct not of a victim but of a woman who perpetrated a crime?
Finally—
Baroness Berridge (Con)
It was a crime, and she was given eight years in prison for that.
On the question about the offences that the judge also considered—murder, manslaughter and infanticide —I emailed the Minister about the clarification I asked for in Committee on guidance being given to emergency services that may come across a situation such as that outlined in Sarah Catt. What is their obligation to the woman and the child?