Crown Prosecution Service: Funding

David Burrowes Excerpts

Wednesday 11th January 2017 Westminster Hall

[Mr David Burrowes (Enfield, Southgate) (Con)]

Similarly, I declare an interest: I am still a defence solicitor, and if I catch your eye later, Mr Hanson, I will speak about my experiences. I will probably share similar experiences to those of the hon. Gentleman. He does angry well and quickly, but he was actually asked a genuine question on clarifying the stats. There are lots of reasons to vacate trials, and they can involve issues beyond funding-related prosecution preparedness; that was what the question was about.

[Karl Turner]

The hon. Gentleman is of course right, but I was less than two minutes into my remarks when the hon. Member for Cheltenham (Alex Chalk) intervened. If I am allowed to, I will come on to clarify the points being made by the Government Back Benchers.

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[Mr David Burrowes (Enfield, Southgate) (Con)]

It is a pleasure to take part in the debate. I declare an interest as a criminal defence solicitor. I have an interest in defence, but primarily an interest in the criminal justice system, which we all share. We need a good, efficient and effective CPS as part of the criminal justice system. That is good for all: for defendants, for witnesses, for victims and for public confidence. It is a collaborative effort, so in many ways it is important not to see this issue in isolation.

There are funding challenges—we could have another debate about the funding challenges for the criminal defence service and the challenges for the police and others—but there is a collaborative effort, which is why I welcomed the inspection by the Crown Prosecution Service inspectorate and Her Majesty’s inspectorate of constabulary in 2015, which helped us to home in on some of the issues. Yes, one can look at the statistics on cracked trials, but when one looks deeper one sees, as the hon. Member for Kingston upon Hull East (Karl Turner) said, the issue of the police’s charging decisions and the impact that has down the line. Getting it right first time was very much the NAO’s mantra in relation to getting value for money for taxpayers.

I will try not to take up too much time but I want to draw attention to the statistics. First, it is important to recognise that there has been criticism for some time. There is also the challenge of cuts. Back in 2014, the independent inspectorate’s report on the CPS looking at the period 2013-14 said:

“The background of continuing resource reductions is now having an impact on the ability of the service to deliver effectively across the whole range of its activity.”

That was then; now, we are looking at what the challenges have been to that. If one brings in the NAO report and other inspectorate reports, one sees that there is a serious challenge from cuts, but if one delves deeper, one sees other issues, including a large variation in performance across the country in the service provided to victims and witnesses. One cannot therefore look just at the money; one has to ask, “Why are there variations? How can we have a more uniform approach that provides a good service to all?”

There has been some progress. I will not seek in any way to cover over the cracks—there are serious challenges and serious problems. I go to courts and I see and hear them and the way they affect morale and confidence in the system. That is a collective challenge that is affecting the criminal justice system. Nevertheless, given some of the statistics, it is worth saying for balance that the proportion of effective trials in magistrates courts has increased from 34% in the year ending September 2011 to 39%. There has been an increase, although it is not enough.

On the issue that the NAO and inspectors have looked at time and again, yes, mistakes are happening, but they are happening through the currency of cases. Early decisions should have been made and what had gone wrong identified. No doubt, the anecdotal evidence provided by the hon. Gentleman can be repeated by the prosecutors. The fact that two thirds of cases still do not progress as planned shows that that needs urgent attention.

The reality, and what I have experienced myself, is that the most frustrating thing about funding challenges and staffing is that, when it comes to the need for an early decision, at court—or preferably beforehand—there needs to be an appropriate review. A review can take place before the door of court so that appropriate decisions can be made for the benefit of the whole criminal justice system. That is something that I think is not happening enough, and down the line, whether in the magistrates court or the Crown court, it leads to vacated trials.

More needs to be done, but during my 20 or so years of practising, there has been a sea change, not least in terms of the recognition of the need for reforms—that the present situation cannot continue. The only way we will get better value for money and better public confidence is by grasping the fact that, in particular, the legal system has been one of the last to come up to date regarding paper and the need for a digitised criminal justice service. That is not the only answer, but we know that when we are struggling to find where that advance information or that disclosure is, we ring up and try to find the duty officer, who then tries to get someone. Thankfully, those things are now part of the past. The future is proper digitisation, which can help in getting prompt disclosure and appropriate decisions made and should lead to early decisions. We are still not getting those appropriate early decisions. The report of the last joint inspection in 2015 made the point that too many police charging decisions were incorrect and picked up too late by the CPS in court. The fact that 38.4% of cases were not reviewed before court must be seriously challenged for the sake of the system and for the benefit of all.

I want to make some brief points on what could be done. I remain concerned about transparency and accountability in the criminal justice system. The decisions made, such as those made by magistrates on the mode of trial—whether the case goes to Crown court—are still not clear enough for everyone

There is variation between areas. There have now been improvements to crime mapping for victims, but we should look much better at justice mapping and the accessibility of justice in a given area. The challenge of less localised magistrates courts and less reporting and less public awareness of what is happening in local courts means that we need the digital service to map better what is happening in our areas to see the impact of decisions, going back to charging decisions and particularly to decisions made in court and their impact. That will help to build confidence and public perception that is not based just on anecdote or the latest scandalous headline in a tabloid.

Transparency is needed, but we also need accountability. One of the frustrations I feel on behalf of the defence service is that I am directly accountable if I make a bad decision—if I have not got my act together and got my witnesses together, or if I have mucked up in court, I will get it in the neck from a senior partner or others, and not least from the client—but I do not see that same accountability for the Crown prosecutor. There is accountability for the police officer handling his case and there is much more in the Crown court, but at the magistrates court, with a pile of cases, when something goes wrong and a decision needs to be made quickly that perhaps goes against the victim and against the interests of justice in the long run, the Crown prosecutor—strained and challenged though they and the system are—is not challenged and accountable. We do not allow wasted costs orders now because of decisions about publicly funded cases, so the Crown prosecutor does not get it in the neck about wasted costs and lessons are not learnt—it is not so much about berating that individual prosecutor but about the system learning the lessons. Is there a way to provide greater accountability for the CPS, particularly when decisions are made?

Can we recover more costs for the system through costs orders? Can we have more full costs orders in CPS cases, not just contributions to costs? Yes, there are those who cannot afford those, but there are others who certainly can afford to pay prosecution costs. Other agencies will apply for the full costs of a case, including the police enforcement costs; can the CPS introduce full costs orders? Can the CPS also benefit from successful proceeds of crime applications, and can that funding go to the CPS and those prosecuting agencies, rather than to the coffers of the Treasury and the Home Office?

Oral Answers to Questions

David Burrowes Excerpts

Thursday 14th January 2016 Commons Chamber

[The Attorney General]

I agree with my hon. Friend. As he says, it is important that incidents are properly investigated, but it is also important we recognise the need to treat police officers fairly. If, as we do, we need to recruit more police officers to do the difficult work of using firearms, and we need to retain experienced officers who already do that work, then they need to feel as though the system will treat them fairly. That is, I hope, what the review will do.

[Mr David Burrowes (Enfield, Southgate) (Con)]

14. What discussions he has had with the Secretary of State for Communities and Local Government on the effect of the Supreme Court ruling of 13 May 2015 on local authorities’ ability to meet their legal duties towards people facing homelessness.

[The Solicitor General (Robert Buckland)]

I have to observe the proprieties of the Law Officers’ convention, but the Government welcome the clarity the judgment provided. It explains that any assessment of vulnerability must be made in the round, looking at all aspects of a person’s situation.

[Mr Burrowes]

A rough sleeper is likely die by the age of 47. Homeless people are inherently vulnerable. Can the Solicitor General assure me that, as the law currently stands, a safety net is provided for vulnerable and homeless people who are unintentionally homeless?

[The Solicitor General]

I commend my hon. Friend for the considerable work he has done on this issue, both in the capital and generally. The Government intervened in that case precisely because they were concerned that the test would disproportionately affect vulnerable homeless people. I am glad the Supreme Court has rebalanced the law in what I think is a fair way.

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[Caroline Dinenage]

Absolutely. I warmly welcome that report, and I thank the Chairman of the Select Committee—and, indeed, the whole Committee—for the valuable work that they have done. The report follows the Committee’s first inquiry, and it sends a clear signal about the importance of this issue. I look forward greatly to working through the report carefully and thoughtfully with those in other Departments, and looking closely at every one of my right hon. Friend’s recommendations.

[Mr David Burrowes (Enfield, Southgate) (Con)]

5. What discussions she has had with her ministerial colleagues on tackling revenge porn; and what assessment she has made of the effectiveness of the revenge porn helpline.

[The Minister for Women and Equalities (Nicky Morgan)]

As I have said before, the Government are absolutely clear about the fact that what is illegal offline is illegal online. We have criminalised this abhorrent act, and the revenge porn helpline has supported more than 3,000 callers since its launch last February. It is there to support anyone who is affected, regardless of gender, sexuality, race or age. No one should have to suffer as a result of this repulsive crime, and we will ensure that we continue to support those who are affected by it.

[Mr Burrowes]

Will the helpline, and other measures, help more victims to come forward for support? Will they also help to take down the vile and abusive content from the internet, and prosecute and, indeed, take down the vile and abusive offenders?

[Nicky Morgan]

My hon. Friend is absolutely right. Obviously it is important for victims to receive the right support, but we want to go further and make it clear, through education and awareness, that this is a crime and that it will not be tolerated. The internet can be a huge force for good, but it can also be a platform for abuse and intimidation. Staff monitor the helpline and provide support, but they have also been very successful in ensuring that content is quickly removed from the internet, and they work directly with social media and website providers.

Serious Crime Bill [Lords]

David Burrowes Excerpts

Monday 23rd February 2015 Commons Chamber

Consideration of Bill, as amended in the Committee.

[Mr David Burrowes (Enfield, Southgate) (Con)]

On a point of order, Mr Speaker.

[Mr Peter Bone (Wellingborough) (Con)]

On a point of order, Mr Speaker.

[Mr Speaker]

Order. I am saving up the hon. Member for Wellingborough (Mr Bone); it would be a pity to waste him at this early stage of our proceedings. We will come to him for his point of order, he can be assured of that. Before that, however, I have the following to say.

As the Government have not moved the programme motion, proceedings will be taken in the customary order on consideration: Government new clauses first, then other new clauses, and then amendments in the order they occur in the Bill. We will start as originally envisaged, with the group on child exploitation and so on. We will then take the group on other issues, and then there is, for consideration, the group on abortion. The selection list has been reissued, and the amendment paper has been reissued with the revised order. Proceedings on Report may continue until 9 pm, and Third Reading until 10 pm, under the earlier programme motion.

That is what I have got to say for now, but let us hear the point of order from Mr David Burrowes first.

[Mr Burrowes]

On a point of order, Mr Speaker. As the programme motion is not being moved, of which there was good notice, new clauses 1 and clause 25, which deal with the important issue of gender-selective abortion, have effectively been shunted to the end of proceedings. I understand fully, and the House understands fully, the importance of addressing child exploitation and protection, and how they are integral to this very important Bill. That needs proper debate and scrutiny. However, gender-selective abortion is also a matter of public interest. Concerns have been raised across the country, not least by the more than 100 Members of Parliament who have put their name to new clause 1. There is a concern that, unless there is great restraint from parliamentarians in the debate, we may not even get to the point of being able to move those new clauses.

Mr Speaker, you have championed the role of the Back Bencher. New clause 1 was tabled in the scintilla of time available between Committee and Report, and now we run the risk of not getting to this business before the end of our consideration. With respect, I wish to suggest a way out and to ask for your guidance, Mr Speaker. According to the selection paper, after we have considered child exploitation and protection, we will move on to “other issues”, including investigative powers, the publication of names, firearms offences, new psychoactive substances and money laundering measures. Could you also include under “other issues” the important other issue of gender-selective abortion? Otherwise, we will be left to rely on your customary guidance and urging of restraint across the House to ensure we get to the matter.

In conclusion, we are all concerned about the esteem in which Parliament is held. I put Parliament on notice that if we do not get to the issue of gender-selective abortion, the public will hold us in disrepute, and it will be a grave day for Parliament.

[Helen Goodman (Bishop Auckland) (Lab)]

Further to that point of order, Mr Speaker.

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[Ann Coffey]

If the hon. Gentleman will wait, I am coming to that point.

The statement the hon. Member for Congleton proposes would sit alongside the existing seven grounds for termination in the 1967 Act, but of course the sex of the foetus can be a factor in causing so much distress for the woman that she meets the existing medical criteria for a termination. The British Medical Association supplied two case studies that demonstrated how that can occur. In both cases, gender was a key factor in affecting the state of mind of the pregnant woman and her wish not to continue the pregnancy. It is not clear how new clause 1, if added to the Bill, would affect the decision of doctors on the legal grounds on which they might agree a termination, if at all. It would inevitably be subject to legal challenges that would, I believe, dilute the clarity of the 1967 Act. As far as I am aware, there is no evidence that doctors are granting terminations to women who do not meet the medical grounds laid down in the Abortion Act 1967.

[Mr Burrowes]

Does the hon. Lady agree with the TUC interpretation of the law, which is that it would be right in some circumstances for a doctor to approve an abortion if, for example, a woman did not want to have a girl for cultural reasons?

[Ann Coffey]

I repeat that as far as I am aware there is no evidence that doctors are granting terminations to women who do not meet the medical grounds laid down in the Abortion Act 1967. That would be a criminal offence.

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[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

I welcome the opportunity to speak in this debate, and I will try to do so relatively briefly in order to allow more Back-Bench contributions. New clause 1, which stands in the name of my hon. Friend the Member for Congleton (Fiona Bruce), and new clause 25, which stands in the name of the hon. Member for Stockport (Ann Coffey), both relate to the very important matter of addressing the abhorrent practice of sex-selective abortion.

The Government have been consistently clear that abortion on the grounds of gender alone is already illegal. The Department of Health repeated that in guidance issued in May 2014, and it is important to stress that all independent sector providers have agreed to comply with, and operate on the basis of, the Department’s guidance and that they must do so as part of their licensing conditions. The Care Quality Commission monitors compliance with that, including through its inspection visits.

[Mr Burrowes]

On the welcome guidance that was published, I understand from freedom of information requests, and from an e-mail sent on 21 January, that there was a request for joint badging of that guidance to ensure that all the stakeholders signed up to it. Why did that not happen? Why was it left only to the Department to publish it?

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[Luciana Berger]

I am not going to give way. I am going to wrap up, because I am conscious of the time and Madam Deputy Speaker wants me to conclude.

There are many other points that I would have liked to address, particularly the issue of custom and practice and why new clause 25 addresses the issue of coercion in communities, which is something we all want to deal with.

Voting against new clause 1 is not an indication of support for sex-selective practices, but an acknowledgement that it would do nothing to address the causes or reduce the incidences of sex-selective abortion and that some serious negative unintended consequences would result from enacting this proposed change to the Serious Crime Bill.

Few people would support the idea that families should be able to have abortions on the grounds of gender alone. That is why it is illegal under our current law. New clause 1 represents a significant departure from the current principles on which abortion law in this country is based. Instead, new clause 25 would require a review of the evidence relating to abortion on the grounds of gender alone, to ensure that we have a full understanding of the practice and the extent of the problem, and for that to be followed by a Government strategy to tackle it accordingly, based on the evidence of what works. I sincerely hope that Members on both sides of the House will vote against new clause 1 and in support of new clause 25.

[Mr Burrowes]

It is important that we try as far as possible to develop a consensus on subjects such as this. Everyone across the House is against abortion on the grounds of gender alone. We have communicated that view, the Government have written it in guidance and we want to make it clear in statute. It is as simple as that. We do not seek to have a Trojan horse or to upgrade the status of the unborn child. On that point, one simply needs to look at section 1(1)(d) of the Abortion Act 1967, which refers to “child” as a legal term, so that definition is not unknown.

We could support new clause 25, which aims to develop further research and have a plan, but it is not an alternative to new clause 1. Yes, we should develop more understanding and evidence, but we should not ignore the main point of this debate, which is what brought together more than 50 Members from both sides of the House—whether they were pro-choice or pro-life—when they signed a letter in 2013. Some of them have now signed different new clauses and are seeking to divide one another when we should be coming together to show that we want to clear up the law.

We have talked about different legal experts. Why not take one, Keir Starmer, the then Director of Public Prosecutions? On 7 October 2013, he said:

“The law does not…expressly prohibit gender-specific abortions”.

That no doubt came as a surprise to many members of the public. To put it simply, that is what new clause 1 is about—it would expressly prohibit such abortions. What does the law do? As Keir Starmer went on, rather the law

“prohibits any abortion carried out without two medical practitioners having formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination.”

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[Mr Burrowes]

That is right. The Department issued helpful guidance that abortion on the grounds of gender alone was illegal. However, guidance is not sufficient. We do not simply rely on guidance in many areas of policy.

As freedom of information requests have revealed, the Government’s attempt jointly to badge all stakeholders together did not succeed, because the BMA rejected the very guidance published by the Government. It said that gender selection abortion is “normally unethical”, but that the guidance

“fails to reflect the…full legal situation regarding abortion and gender.”

The BMA therefore had a different interpretation. It also said that, separate to the issue of gender-related disability that has quite properly been raised,

“in some cases doctors may come to the conclusion that the effects of having a child of a particular gender are so severe to the physical or mental health of the pregnant woman as to provide legal and ethical justification for an abortion”.

We need greater clarity than can be given in guidance; we need to be sure that such a prohibition is clear in statute. The law as it stands is not clear. We have a duty not just to leave it to a doctor to perform a balancing act. No longer should we be silent on this issue. I urge hon. Members to support new clause 1.

[Several hon. Members]

rose—

Oral Answers to Questions

David Burrowes Excerpts

Tuesday 10th February 2015 Commons Chamber

[The Attorney-General]

As I have said, there is no direct connection between what we decide to do on the Human Rights Act and what we decide to do in support of human rights, both nationally and internationally. We remain wholly committed to the preservation of human rights, both in this country and abroad. As for my predecessor, I think that he would wholeheartedly support that position.

[Mr David Burrowes (Enfield, Southgate) (Con)]

The Attorney-General refers to the Government’s leadership in tackling modern slavery. Given that traffickers operate across jurisdictions, what is he doing to support other countries to have effective justice systems to protect the victims and enforce the law?

[The Attorney-General]

My hon. Friend is right that we need to think about how we assist other countries in the way in which they implement their justice systems so that we can work together to confront what is, as he says, cross-border problems. It comes back to the dilemma that was being discussed with my right hon. Friend the Deputy Prime Minister around what we do in countries that do not have the best records in the preservation of justice and human rights. We have to get the balance right, but it is important that we continue to co-operate.

Abortion Act

David Burrowes Excerpts

Wednesday 9th October 2013 Westminster Hall

[Mr David Burrowes (Enfield, Southgate) (Con)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I know that you share my concerns in this debate. I welcome everyone who is here for the debate and I thank the Ministers for coming. Their presence shows the seriousness and concern that are felt about the issue.

The debate has been triggered by The Daily Telegraph’s investigation into gender-selection abortion last year and the subsequent police investigation and decision by the Crown Prosecution Service on 5 September this year that it was not in the public interest to prosecute the doctors who were found to have contravened the Abortion Act 1967. The Director of Public Prosecutions has now given his detailed reasons, following a review of the public interest factors for or against prosecution.

Concerns about the authorisation of gender-selection abortion and the lack of any prosecution have been widely felt in the House and among the public. I am grateful for the support from hon. Members of all parties, despite our usual divide and the divide over the abortion issue. Indeed, 50 signed a letter to The Daily Telegraph. They were united in calling for clarity from the Attorney-General about the policy on contraventions of the Abortion Act. We look forward to that clarity coming from the Attorney-General today.

Keir Starmer, the DPP, recognised in his article on Monday that

“this country has a strong tradition of open and transparent criminal justice, and the probing and debating of prosecutorial decisions is an integral part to that tradition.”

Today I want to follow that fine tradition of probing and debating. The conclusion I have come to, supported by the DPP’s statement, is that the policy on prosecutions or offences contravening the Abortion Act is unclear, and, sadly, largely unenforceable. The DPP has helpfully shone a prosecutorial light on the practice of abortion where doctors have no direct contact with patients, where authorisation forms can be pre-signed, and where assessments concerning physical or mental health risk can be treated as routinely as questions of choice.

Some will argue that the issue of gender-selection abortion is simply a restriction of choice. Ann Furedi is the chief executive of the British Pregnancy Advisory Service, the leading provider of abortion services. It has some 40 clinics in England, Wales and Scotland and performs 60,000 abortions a year. She says that sex selection may not be grounds for abortion, but there is no legal requirement to deny a woman an abortion if she has a sex preference, provided that the legal grounds are still met. Indeed, Ann Furedi went so far as to say it would be “wrong” to refuse to consider an abortion request when gender is cited as a reason. Those are the words not of the Chinese or Indian pregnancy advisory service but of the British Pregnancy Advisory Service, advocating gender selection abortions and the removal of barriers to abortion. The issue is worldwide: The Economist recently published an article describing the 100 million abortions, which it described as “gendercide”, that are done on the basis of gender throughout the world. Concern is shared throughout the House about the need for proper gender equality and respect for basic rights.

When I heard about the investigation and the Care Quality Commission investigations that followed, I could not believe that such things could be happening in this country. The words I have quoted and the lack of any prosecutorial decision—there have been a handful of prosecutions for abortion contraventions in the past 10 years—give a green light to abortion on demand, which flies in the face of the Abortion Act and the intention of parliamentarians in 1967. Some 98% of abortions tick the box of mental health risk, but if we are honest, the truth is that that covers a multitude of reasons, and one of those reasons might include gender.

The DPP himself has referred in his statement to a programme manager at the Department of Health who indicated that many doctors feel that forcing a woman to proceed with an unwanted pregnancy would cause considerable stress and anxiety. The corollary of that is justifying the mental health grounds. It follows, therefore, that in practical terms we have in this country abortion on demand. I recognise that the Attorney-General is focused on the prosecution policy and will not trespass into the wider health policies, but my question is relevant. How does this reality impact on the policy towards prosecutions? How can it be in the public interest—Ann Furedi has raised this question—to prosecute contraventions of the Abortion Act when there is such a gap between the law and practice?

[John Glen (Salisbury) (Con)]

The key issue is about the definition of the mental health issues and the bar that is set for them to be understood to be a meaningful reason for an abortion. That can be a catch-all for an inclination on any grounds to have an abortion. If it is not set clearly and applied appropriately, it will result in what my hon. Friend has set out.

[Mr Burrowes]

My hon. Friend makes a good point. A wider issue is transparency and honesty around definitions and assessments. It is an issue because 99.6% of the 98% who relied on the grounds of mental health risk are those that this applies to. The investigation and the reasoning have highlighted the lack of guidance and how it is disparate across the country. We need further information. We are in the unknowns, because there is a lack of data and proper information. We do not know enough about the assessments in relation to mental health grounds. Perhaps the doctor is not even present to make the assessment.

[Robert Flello (Stoke-on-Trent South) (Lab)]

I am grateful to the hon. Gentleman—I shall call him my hon. Friend this afternoon—for securing this debate. Following on from the previous intervention—I think he is starting to allude to it—if the doctors concerned are not even meeting the woman who is presenting and requiring an abortion, how are they to judge whether the barrier is met?

[Mr Burrowes]

My hon. Friend—he is very much my hon. Friend in these matters—is right. In the case that brought about the investigation, both GPs failed to carry out an in-depth mental or physical assessment of the patient. One GP even claimed that he thought the patient was lying. Instead of taking it a stage further and delving further, they agreed to authorise the abortion. In one of the cases that have been reported, one of the GPs brazenly said that it was “like female infanticide”.

We need to get to the bottom of what the law is for, and that is the focus of this debate. We will then draw attention to the issue of appropriate guidance. So what is the law on gender selection abortion? My hon. Friend the Member for Broxtowe (Anna Soubry), the outgoing public health Minister—I welcome the new Minister, the Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), who is here—wrote to me on 3 October; it was one of her last letters as public health Minister. She wrote to say unequivocally, and it has been repeated by the Secretary of State for Health, that abortion on the grounds of gender alone is unacceptable and illegal. This has not changed. I therefore look forward to the Attorney-General making the obvious point and confirming the policy position. However, there is some doubt, because Ann Furedi, the BPAS chief executive, says that the law is “silent” on the question. Indeed, the DPP in his letter on 7 October said quite properly that the law does not expressly prohibit gender-specific abortions. Rather, it prohibits any abortion carried out without two medical practitioners having formed a view in good faith that the health risks of continuing with the pregnancy outweigh those of termination.

The public might be surprised that such a prohibition is not expressed and that it is not clear. The British Medical Association takes it a stage further, aside from the issue of whether there is an express prohibition. In the BMA’s words,

“there may be circumstances, in which termination of pregnancy on grounds of fetal sex would be lawful”.

That is in the BMA’s handbook of ethics and law and the guidance that goes to GPs. The concern about policy—this is my question to the Attorney-General—is whether the law is clear or silent. In particular, we are concerned about the practice emanating from the policy, which in effect is to turn a blind eye to contraventions of the Abortion Act.

[Robert Flello]

I am listening carefully to a well-measured and thoughtful speech. Perhaps Members will forgive my simplicity in such things, but is it not the starting point for any position that any termination of an unborn child is infanticide, and that the 1967 Act gives specific situations in which it is not? Therefore, surely the default position must be the original position, as it was before the 1967 Act.

[Mr Burrowes]

That is the position in principle: the Abortion Act provides effective safeguard and defence against the Offences Against the Person Act 1861. We have a gap, therefore, and the issue is, where it has been exposed—rarely do such cases see the light of day—why, when the evidential threshold has been reached, is it not considered in the public interest to take things a stage further, into court?

In the particular cases brought to light by The Daily Telegraph investigation, the DPP and the CPS give much weight to the law giving

“a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists”.

The CPS stated that it was up to doctors “to interpret the law” and, flowing from that, that the cases were

“better dealt with by the GMC rather than by prosecution.”

The gap I referred to is, therefore, in effect being determined by doctors, with their wide discretion to interpret the law—if a problem is exposed, it is for the professional body to investigate. As a politician, to me that seems to be passing the buck—the responsibility for enforcing the law—from the courts to doctors, thereby second-guessing the intentions of Parliament on enforcement.

As a criminal defence lawyer, I looked more deeply into that decision. The reasoning seems to be for an evidential rather than a public interest factor against prosecution—the public interest factor was the focus of the review. The CPS statement seemed to be going into what the DPP himself admits were the overlapping considerations of the evidential and public interest tests. The main basis of the DPP’s reasoning for not supporting a prosecution—which went a stage further and, with great respect, I suggest perhaps moved the goalposts towards the evidential side of things—was the evidential difficulties arising in the case, which I think can be applied generally and are of general concern in all such cases. Although the evidential test in that particular case had been passed, my concern is that the wider public interest appears to have been sidelined. That is not only my view, although I have 20 or so years of experience in the criminal law and in dealing with cases where it is difficult to detect a crime.

What is the public interest factor in such cases? The former DPP, Lord Macdonald, drew attention to that point, saying that there is “strong public interest” in prosecuting crimes that are hard to detect, such as sex-selection abortion. The onus is therefore much more on looking into what is in the public interest when so few cases are exposed and where we recognise that there are evidential difficulties—perhaps inherent—in the current system, given the lack of guidance. Does that not make the case even more strongly for a prosecution being in the public interest?

[Glyn Davies (Montgomeryshire) (Con)]

I thank my hon. Friend for bringing a subject of such huge interest and importance before us. What impact does it have on public perception of the law and its integrity? Any effect can spread to all sorts of other areas, such as assisted suicide. Once the public’s perception is that the law is not enforced, as it has been in one or two cases, confidence in the law’s ability to deal with highly complex issues disappears.

[Mr Burrowes]

My hon. Friend makes a good point. In cases of assisted suicide, the DPP has come forward with guidance to provide some clarity, and that was carefully worked through. One of my requests to the Attorney-General is to reflect on what has happened and, with the DPP, to come forward with clear guidance to ensure that confidence in the integrity of the law that many say has been lost. I also ask the Attorney-General to comment on the former DPP’s view. In addition, it must be in the public interest, in policy terms, for such cases, in which there has been an obvious abuse of abortion legislation—the cases are unusual and rarely see the light of day, because they are not readily detected—and in which the evidential threshold has been passed, to be seen in court.

The danger now is that the decision by the DPP, following on from the CPS, sets a precedent—no prosecutions under the Abortion Act without clearer evidence. Where will we get that clearer evidence? Do we now have a new evidential test for abortion-related offences, which can rarely be satisfied due to the lack of the different factors affecting this, not least the lack of professional guidance from doctors?

Another concern about the CPS decision not to find public interest to prosecute was the deferral to the GMC to enforce the breach of law. That was particularly apparent in the original decision of the CPS, which saw that as a key factor. The last time that I checked on enforcement of the Abortion Act, it was for the courts to do, and not for a disciplinary committee of GPs, which was never mentioned or even suggested in 1967. That option is certainly not in statute. This is specifically prescribed in statute as a contravention, and the law should be enforced. I trust that the Attorney-General will make it clear today that criminal sanctions cannot be avoided because of professional status—making a point about integrity—and that applies across the board with other instances of criminality involving the professions. Plainly, everyone is equal under the law, although some of us would say that that is not the case for an unborn child.

The CPS decision to drop the case and to leave it to the GMC highlights the gap between abortion law and practice. That must be filled somehow, at least by guidance through GPs, but also by reform of the legislation. I therefore welcome the assurance that I received from my hon. Friend the Member for Broxtowe, then an Under-Secretary of State for Health, that the Department of Health has requested that the chief medical officer issue guidance. I look forward to it, and hope that there will be proper consultation on it.

Such guidance is needed not only because of the cases involving GPs highlighted by The Daily Telegraph, but also because of the CQC investigation in July last year. Fourteen NHS hospitals throughout England failed inspections, all involving the photocopying of doctor’s signatures and other breaches. For example, Rochdale hospital’s regular routine was to pre-sign all abortion forms—not only in one case—and the Princess Alexandra hospital in Harlow used the photocopied signature of a doctor for so long that it was well beyond the time that he had been employed as a doctor or could have had any knowledge of the cases. Such is the extent of the abuse and breaches of the Abortion Act. Such malpractice would not be tolerated by patients or others in the prescription of antibiotics or common painkillers, for example, and yet a blind eye is being turned in abortion cases.

The scandal is not only about malpractice, however; those hospitals were not referred to the police for investigation, and no CQC investigation has resulted in any prosecution to date. Why is that? What is going on? Will the Attorney-General respond about the policy? The system is open to abuse, to dishonesty and to criminality, which, without reform, are going unchecked and unprosecuted.

Why was the DPP not more involved at an earlier stage in the initial CPS decision on whether to prosecute, given the significant public interest? Was the Attorney-General consulted on that decision, given the public policy considerations, and if not, why not? Will guidance be provided to the CPS for consideration of future contraventions of the Abortion Act? Will a review consider whether the safeguards set down by Parliament, in good faith, are being properly applied in 2013 and still have full force in law?

On the subject of public interest, which is what we are discussing today, I want to thank The Daily Telegraph, which has been acting in the public interest by investigating and exposing the problems with the Abortion Act, which are of concern to many, on all sides of the fence on the issue of abortion, in particular because such problems might have led to sex-selection abortion. Without such investigative reporting on behalf of the public interest, there would probably be no one to complain, and the issue would go by the bye. The reality is that the unborn child has no complaint process. There is a lack of transparent information, and no real safeguards. It is up to Parliament to deal with that, and we must seize on it in this debate and beyond by speaking up for the voiceless, ensuring that we respect life and at least to ensure that the Abortion Act contains safeguards with proper meaning and proper force.

[Mark Pritchard (in the Chair)]

Five hon. Members have indicated that they wish to speak, and I do not want to impose a time limit so I hope that colleagues will be mindful of others, given that I want the wind-ups to start at 3.40.

--- Later in debate ---

[The Attorney-General (Mr Dominic Grieve)]

It is a great pleasure to serve under your chairmanship, Mr Pritchard. I congratulate my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) on securing the debate.

Investigative journalism plays an important part in a vigorous and healthy democracy. The Daily Telegraph has done a very important public service in bringing these issues before us today. The debate has been a characteristically thoughtful one, as befits matters touching on the criminal law, personal health and dignity, ethics and moral issues, professional standards and the wider public interest. I am grateful to the hon. Member for Strangford (Jim Shannon), my hon. Friends the Members for Gainsborough (Sir Edward Leigh), for Totnes (Dr Wollaston), for Congleton (Fiona Bruce) and for Tiverton and Honiton (Neil Parish) and the hon. Member for Islington South and Finsbury (Emily Thornberry), who have all made contributions, and to those right hon. and hon. Members who have intervened.

The cases highlighted by The Daily Telegraph were much debated at the time of the original CPS decision not to prosecute. The terms of that debate may have given the public the impression that this case was about medical practitioners offering abortion on the basis of the gender of the child. On that basis, it may well have seemed incomprehensible that the full force of the criminal law was not being brought to bear on a practice that most people would regard as abhorrent. I certainly do and I think that everyone in this room does. But as I hope to make clear and as I hope has been made clear by the DPP’s explanation, that is not in fact what these cases are at root about.

The DPP has recently published detailed reasons for the CPS decision. I urge all right hon. and hon. Members to read his account very carefully, if they have not already done so. It is absolutely right that prosecution decisions are taken by independent prosecutors on the facts before them and free from political influence. That is what entitles the public to have confidence in those decisions. However, it is also important that the public should be able to understand the decisions and, where that is not straightforward, that prosecutors make a special effort to explain them. This was obviously such a case, and I am particularly pleased that the director has taken the time and trouble to review—I requested him to do so—the decisions personally and to set out fully the reasoning that led him to endorse the conclusion that it would not be right to prosecute.

[Mr Burrowes]

Will the Attorney-General give way?

[The Attorney-General]

In a moment; I was going to answer the two questions raised by my hon. Friend. First, the director did not make the initial decision not to prosecute, but he was consulted, as is normal in complex and sensitive cases. The answer to the second question, on whether I was consulted on the decision before it was taken, is that I was not. The case was not raised with me by the director prior to the decision not to prosecute being taken. In my view, it should have been, and on reflection, the director accepts that he should have done so. Before that leads to an inference that therefore the decision might have been different, I simply make the point that as I asked the director to review the decision completely and I had ample opportunity to consult with him before he did so, I am satisfied that the decision that has now been reached, which I will come on to in a moment, would have been the same had that process taken place in the first case.

[Mr Burrowes]

Does my right hon. and learned Friend the Attorney-General agree that in hindsight it would have been appropriate for the DPP to be involved at an earlier stage, to respond to the question raised by the shadow Attorney-General, and should not all future investigations of allegations of contraventions of the 1967 Act involve the DPP at that earlier stage and proper consultation with my right hon. and learned Friend?

[The Attorney-General]

As my hon. Friend will appreciate, the DPP himself does not under the statute have to give consent. Nevertheless, I am sure that the DPP will have noted my hon. Friend’s comments—representatives of the Crown Prosecution Service are here. It is clear to me that this is an important issue in a difficult area, which I will come on to in a moment. I trust that his comments are noted, but he will appreciate that the decisions are ultimately for the DPP, not me.

The director’s reasons speak for themselves. I am satisfied that this difficult decision was taken properly and conscientiously. The responsibility of taking such decisions is a heavy burden, which few of us would relish. I would like to take the opportunity to pay tribute to the distinction with which the current director has fulfilled an onerous and difficult series of public duties over recent years, particularly as his term of office is drawing to a close.

The hon. Member for Strangford asked whether I agreed with the decision taken by the director. I emphasise the point I made: I am clear that it is not my role as Attorney-General to second-guess the decisions of independent prosecutors. These were difficult decisions on which different prosecutors could reasonably have come to different conclusions, but I am entirely satisfied that this difficult decision was taken properly and conscientiously.

I shall say a little more by way of context. First, abortion law in this country, in my judgment, is workable, but needs to be understood. I should perhaps emphasise that the law is not framed in terms of prohibiting gender-specific abortion or indeed listing any other forms of unlawful abortion. It works, or was intended to work by Parliament, by providing for abortions to be performed safely, by qualified medical practitioners, when those practitioners judge it to be in the medical interests of the patient and where that is the course that the patient herself agrees is right. Two medical practitioners must on each occasion have formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination. That is our guarantee, as provided by Parliament, that we have a system of safe and lawful abortion provided by the 1967 Act.

--- Later in debate ---

[The Attorney-General]

I reassure my right hon. Friend that that is certainly not the case. Ultimately, in any case, the jury decides, not the experts. One would normally expect a jury to be given some indication of the professional standards expected in a profession—there may even be rival professional views about what the standards should be—in order to help it decide.

Such a problem might not arise in an extremely clear-cut case. We might imagine a case in which a doctor behaved in a way in which no reasonable practitioner would behave, for example by arranging a medical abortion for a patient about whom he or she knew nothing and whom he or she had never met or spoken to. In any other circumstances, however, the CPS would need, and would expect to be able, to refer to medical consensus to determine whether a proper professional approach had been taken.

When they are looked at in the kind of detail considered by the prosecutor, the cases that we are debating are not extreme ones in which the doctors behaved as no reasonable practitioner would behave. Complicating factors were raised by both the patients and the doctors, who subsequently had to take the decisions. There were, as we have discussed, no detailed professional rules or step-by-step guidelines telling doctors how to take such decisions; the matter was left to general professional standards and ethics. The CPS, therefore, had no detailed consensus to help it to evaluate the matter.

To prosecute would have been to ask a jury to decide what steps a doctor should take. Juries take difficult decisions robustly, and sometimes they have to find their way through conflicting medical evidence. Is it right or fair, however, to ask a jury to arbitrate on a question of medical standards and ethics on which the profession has not published a detailed consensus, and on which a great deal turns for both doctor and patient? The CPS concluded in the recent cases that it would be contrary to the public interest to proceed.

Those who have the relevant policy and professional responsibilities are, no doubt, reflecting on the conclusions to be drawn. The Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), is present for precisely that reason. As the House will appreciate, these are not my responsibilities.

[Mr Burrowes]

I recognise that in such cases, because of the level of uncertainty, it is questionable whether a prosecution would serve the interests of justice. When more certainty has been achieved through the publication of guidance, will the Attorney-General undertake to review the matter and consider whether further guidance is required to provide clarity on prosecution?

My supplementary question is to ensure that the Attorney-General does not get off the hook without commenting on another issue. The CQC has provided evidence of 14 hospitals where—forget “good faith”—doctors were not even present when forms were signed. Surely the Attorney-General must ask why no prosecutions occurred in such cases, which go way beyond questions of guidance. They are malpractice and a flagrant abuse of the Abortion Act 1967, and they must lead to prosecutions.

[The Attorney-General]

I hope I may be able to reassure my hon. Friend. On the second matter that he raises—it is not germane to one of the cases, although it was to another—as he knows, the evidence revealed that the pre-signing of forms was quite widespread. I understand that that practice has now been stopped, and that clear guidance has been issued as to its undesirability. That is a policy issue, and I have no doubt at all that as a result, the requirements set down by professional standards have already been clarified.

I turn to the more general point. There are two ways in which we can move forward. We might take the view that the current situation is, overall, a satisfactory one, in which professional medical discretion, which must inevitably be relied on, is left at large, with the law enforcement agencies acting as a back-stop for the most egregious cases that flout any conceivable proper standards. The other view, which I understand that the Department of Health has accepted, is that such a situation allows law enforcement far too residual a role and that the balance needs to be redressed. The law enforcement agencies will need clearer and more specific guidance on how to distinguish between desirable and undesirable professional practice in making and recording decisions on the termination of pregnancy. I greatly welcome that, and I have no doubt that it will make the task of prosecutors much easier.

Assisted Suicide

David Burrowes Excerpts

Tuesday 27th March 2012 Commons Chamber

[Dame Joan Ruddock]

Clearly, if the existing guidelines were put into statute they would lie alongside existing statute. I will go on to explain why I think it is very important that they should be in statute.

[Mr David Burrowes (Enfield, Southgate) (Con)]

Would not one of the implications of the amendment, if it were passed, be to fetter the discretion of the DPP to amend the code? It would drive a coach and horses through section 10 of the Prosecution of Offences Act 1985, which gives the DPP complete discretion to draft his own codes.

[Dame Joan Ruddock]

I completely disagree. First, the amendment invites the Government to consult, which could not possibly contravene an Act in itself. Furthermore, the Act that gives the discretion is not overturned by putting the guidelines into statute. What the statute would then say is, “These are the circumstances…” but it would not remove from the DPP the discretion he has in existing statute.

--- Later in debate ---

[Mr David Burrowes (Enfield, Southgate) (Con)]

I welcome the debate initiated by my hon. Friend the Member for Croydon South (Richard Ottaway). I respect what the hon. Member for Lewisham East (Heidi Alexander) said, but I will not plead guilty to cowardice here today and do not believe that hon. Members are putting their heads in the sand. If one looks, one sees that there has been parliamentary scrutiny. There was an extensive Select Committee inquiry and there have been debates in both Houses. Indeed, as recently as January there was a debate on care for the dying, in which more than 20 hon. Members took part and spoke up for clarity on improving palliative care as the best way of improving care for the dying. There are probably more than 40 hon. Members present today who I am sure would want to coalesce around and speak up for a similar message, which is supplemented by the amendment tabled by my hon. Friend the Member for Congleton (Fiona Bruce).

That message on respect for life is shown properly in the fine words of Jean Rostand, the French biologist, which I hope will resound across the Chamber. He said:

“For my part I believe that there is no life so degraded, debased, deteriorated, or impoverished that it does not deserve respect and is not worth defending with zeal and conviction.”

Certainly, I believe that a whole day’s debate today shows that there is a respect for and a defence of those lives that are difficult, complex, costly and seemingly burdensome, but which are worthy of as good a life, and indeed death, as possible.

The debate, and the amendment tabled by my hon. Friend the Member for Congleton, provide the opportunity to support good-quality palliative care and the hospice movement, which many Members have spoken about. Indeed, my hon. and learned Friend the Solicitor-General spoke about the value the Government place on that, which is shown in the eight pilots that will support quality palliative care, and I see that many Members are wearing the daffodil to support Marie Curie’s matched funding of £2.5 million to help ensure that more people in the UK can access high-quality palliative and end-of-life care.

Today’s debate is specifically about the DPP’s policy. It is among a number of policies that range across criminal law, from domestic violence to bad driving. Some might find it curious, perhaps even a touch mischievous, that Parliament is concentrating on this policy. It is important, with regard to public interest, that we confirm our support for the principle that is the foundation of the DPP policy: the law must give equal protection to all, irrespective of their state of health. The policy, and therefore today’s debate, is not primarily about whether terminally or otherwise seriously ill people should be able to access legalised assistance with suicide. Crucially, the state of health of a victim of an assisted suicide is not a factor that tends either to prosecution or not in the DPP guidelines.

Like many Members, I welcome the DPP’s policy, which is firm, fair and compassionate, and which was subject to extensive consultation and revision. Parliament should respect that process and the independence of the DPP in formulating policy. That crucial guidance showed that there is no distinction between assistance with a suicide given to a terminally ill person and assistance given to a healthy person; that medical assistance should be included as an aggravating factor; and that hospices are right to say that actions by a care professional are treated differently from actions by a friend or family member.

I am cautious about Parliament delving into the DPP’s policy and trespassing on his territory, and certainly about any moves to place it on a statutory footing, which should be vigorously opposed by the House. The House of Commons Library has confirmed for me that no other DPP policy has been put on a statutory footing. Indeed, no other has been sought. We must ask ourselves why that is, and other hon. Friends have spoken about other motives.

We should not put such guidance on a statutory footing for three reasons that have applied historically but still apply today. First, Parliament needs to ensure that it does not fetter any future DPP’s discretion to amend the code for prosecutors. Secondly, Parliament needs to protect the independence of the prosecutor, which should not be dictated by Parliament. Thirdly, Parliament needs to protect the constitutional position of the Attorney-General, who is answerable to Parliament in relation to prosecution policy whereas the DPP’s discretion to prosecute certain offences is not primarily a matter for Parliament. Although it might be a matter for debate, it certainly should not be dictated to.

Today we can properly uphold the law as it stands and in no way see from the front door, or indeed from the side or back doors, any change to it and stand up for respecting life and improving palliative care.