Conscientious Objection (Medical Activities) Bill [HL]

Baroness Tonge Excerpts

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

[Baroness Tonge (Non-Afl)]

Will the noble Lord define what he means by “facilitate”? The amendment refers to someone “participating in a hands-on capacity”—that is the person who is actually going to do the abortion. The secretary who makes the appointment facilitates the abortion.

[Lord McColl of Dulwich]

Facilitate means a great number of different things, but the 1967 Act did provide—

[Baroness Tonge]

My point is that if a secretary in a hospital or a clerk who was involved in this service had a conscientious objection to abortion, would he or she see it as facilitating the abortion? Is that what the noble Lord is referring to? Because it applies to everybody.

[Lord McColl of Dulwich]

If she has a conscientious objection to it, then she should not be obliged to do it, because the 1967 Act specifically said that people did not need to do it. Acts of Parliament should not force people into doing things against their conscience—that is not the function of Parliament.

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[Lord McColl of Dulwich]

I am delighted to be interrupted. A debate is about toing and froing, and there is not enough of that.

If we use the law to impose an approach that is intolerant of conscience, forcing some people out of the medical profession and, effectively, dissuading others from joining it—that is an important point—many people will suffer as a result. We are already short in recruiting new doctors and these amendments are the last thing that we need. In the medical profession, the greater our overall capacity, the greater the capacity to provide abortions and, as we are trying to say, there are plenty of people without conscientious objections.

On the suggestion that we should adopt the amendments because they reflect what the noble and learned Baroness, Lady Hale, suggested in the Doogan judgment, we have mentioned, first, that we do not have to be constrained by her judgment; we are at liberty to come back and change the law, if it is the will of Parliament. Secondly, in the noble and learned Baroness’s judgment, she recognised that there are two potential ways of interpreting the intention of Parliament with respect to conscientious objection: a broad way and a narrow way. She said that,

“a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to ‘actually taking part’, that is actually performing the tasks involved in the course of treatment”.

She concluded that,

“the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed”.

We are trying to change the law so that it is quite clear that that is not so, and we have every right so to do.

This Bill is timely and it is a liberal measure that should get the support that it needs. By contrast, the amendments are deeply mistaken, for three reasons. First, they will hurt the service providers by imposing an ugly uniformity that will result in many more cases of people such as Mary Doogan losing their job. Does the noble Lord, Lord Steel, whose Bill it was in 1967, agree that the decision in Glasgow to sack Mary Doogan because of her conscientious objection to being involved in an abortion was the right decision? She was a wonderful midwife and had done more than 5,000 deliveries. She was a very valuable member of the team. Does the noble Lord think that was the right decision?

[Baroness Tonge]

My Lords, I was unable to speak at Second Reading and I apologise for that—I was at a family funeral, as it happens—but I feel strongly about this issue. I qualified in 1964. I was a medical student and a junior hospital doctor in the days before the Abortion Act of the noble Lord, Lord Steel. I remember well the gynae wards and the women who had had unsafe, septic abortions. Some of them died. In the early 1970s, I was working in Birmingham in general practice and family planning, when the professor of obstetrics and gynaecology refused to have anything to do with the new Abortion Act. The noble Lord, Lord Winston, might know more about management in those days than I do but, because the professor was in charge of what his department provided, he absolutely forbade abortion to take place in that department. Perhaps the noble Lord remembers him.

[Lord Winston]

As the noble Baroness has mentioned my name, perhaps I might add that there was a case of a president of the Royal College of Obstetricians and Gynaecologists who was absolutely opposed to abortion, so this is not unknown in the profession.

[Baroness Tonge]

The point that I wanted to make is that, as a consequence, in whichever way we now plan, purchase and provide services for patients, if someone in management—the chief executive—is against abortion, could that mean that they would conscientiously object and refuse to have abortion as part of the service in that area? It is extremely complicated.

If in this country abortion is legal, under the parameters set by the Act, then it should be implemented equally for all women in this country. It should not be at the whim of individual practitioners, whether they be doctors, managers or secretaries—whoever is going to affect the service delivery to the women of this country if they are allowed to conscientiously object. If they do so, they should not join the service in the first place. No one is obliging them to. There are plenty of jobs around that do not involve abortion, so why do they not do them?

I have a bit of experience. At one time, I was head of women’s services for a health authority in London, during which I was in charge of family planning and liaising with GPs—and, in fact, of setting up an abortion service because the hospital doctors were finding it difficult to cope. We franchised it out to the BPAS, as I think it was at the time. That was one of the first times that that had happened. It was very well and efficiently run but when I think of the number of people involved in setting up that service, both when it was in the health service and when we franchised it out, if everyone involved had had the ability to conscientiously object, that would have completely upset the service. I do not know how we would have got it going.

To extend it a little more, if you have a certain number of people exercising a conscientious objection in one field, that may put extra strain on people in other fields who are not normally employed in that service to fill in and to do that job for them. You would be setting up a situation that could disrupt all the services in a hospital, not just the obstetric and gynae services.

Finally, I say to the people who oppose abortion that I fully understand their reasons. I understand the religious beliefs behind it in some cases. However, whether a country provides safe abortion or not, the same number of abortions take place because, if a woman cannot access abortion, like the women in Birmingham in the early 1970s, they will go to illegal practitioners, they will endanger their life and often they will die. When people oppose abortion, they are actually providing a route for some women to lose their lives. That is a terrible thing to have to say, but it is true.

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[Baroness O’Loan]

That is exactly what we are doing. This is a very useful debate.

[Baroness Tonge]

I was not implying that the noble Baroness was trying to destroy the Abortion Act completely. I entirely accept that, but what she is doing could lead to the service being very badly distressed and may have the same effect in the end.

[Baroness Flather (CB)]

My Lords, I have been trying to stand up for some minutes. First, I pay tribute to the noble Lord, Lord Steel, who introduced the Abortion Act. There are very few times when something like that has gone through Parliament. The Earl of Arran took the Sexual Offences Act, which protected gay consenting adults, through this House. They were great milestones that looked to the future. I fear that this Bill is looking backwards. I do not like the idea of anything looking backwards. I will say more about not providing help for terminally ill or dying patients. We talked about human rights. I believe it is a woman’s human right to be able to access abortion. As the noble Baroness, Lady Tonge, said, abortions take place anyway and women die. That is the difference. We do not want women to die, but if a woman cannot bring up a child or does not want a child, it is better that she can access abortion.

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[Lord Alton of Liverpool]

We are agreed about that. The point I made at Second Reading when my noble friend Lady Richardson intervened on a similar point is that we do not need to go to heroic lengths—that is the phrase people often use—to keep alive someone who would otherwise be dying. I think we sometimes confuse these two things. Let me return, if I may, to the particular point about abortion.

[Baroness Tonge]

Very briefly, by way of personal explanation, I hope I did not imply that people should leave the service if they were required to perform an abortion. I was saying that there are many specialties to go into in medicine. My goodness, you can do anything in medicine, from management and pen-pushing right down to—well, I will not say “down to” because it would demean whoever I got down to. There are many branches of the medical profession; there is no need to go into obstetrics and gynaecology in the knowledge that you will have to do things totally against your conscience.

[Lord Alton of Liverpool]

‘I was very grateful that the gynaecologist who saw my own children into the world did not support abortion. That gave my wife and I great confidence in the lady who was our gynaecologist. I think there should be scope within the service for people to have alternative views. If the phrase “don’t join the service” that the noble Baroness used were to apply, it would mean that people like that would not be able to join the service in the first place.

Another change that has taken place in these years is that it was never envisaged in 1967 that abortion would happen on a regular day-by-day basis on the scale on which it is taking place. In fact, the noble Lord, Lord Steel, often said that it would occur only in rare and exceptional circumstances. There are now examples of some people who have had eight abortions under the National Health Service. You have to ask the question the noble Baroness often asks: “Why is not more done earlier to find alternatives to this?” That too should be in the scope of an inquiry into the workings of the 1967 Act, and so too should be the issue of gender abortions. If I was working in the National Health Service and was told that I had to facilitate the ending of the life of a little girl merely because she was a little girl, I would say no. The 1967 Act surely does not allow for that, and yet we know that there have been such cases and that the authorities decided not to take any legal action. Indeed, there was a vote in another place on a Bill to outlaw such gender abortions. It was lost by 201 votes to 292, so this is not the realms of fantasy. Noble Lords have to ask themselves precisely what their red line would be in regard to questions such as this.

I conclude by giving two opinions from people who have thought about these things in great detail. One is from Professor Andrew Tettenborn, who said:

“The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern … and so organisation rather than participation is increasingly what will be demanded from … unwilling staff”.


I also refer the Committee to the review of Dr Mary Neal, senior lecturer in law at Strathclyde University, who said:

“The core purpose of any conscience provision is to protect individuals from having to share in moral responsibility for something they consider to be seriously wrong. Since the current law leaves some of those who would share in responsibility unprotected, it fails to fulfil this core purpose”.


So when the noble Lord, Lord Steel, said in 1967:

“The Bill imposes no obligation on anyone to participate in an operation”,


I believe he was sincere. When he also said that the “conscience” clause,

“also gives nurses and hospital employees a clear right to opt out”—[Official Report, Commons, 13/7/1967; col. 1318.],

I believe that is what he intended. I do not believe he intended that people such as Mary Doogan should lose their job. That is why my noble friend’s Bill is so important.