Abortion Act

Debate between David Burrowes and Robert Flello

Wednesday 9th October 2013 Westminster Hall

[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?