Legal Rights to Access Abortion

Desmond Swayne Excerpts

Monday 28th November 2022 Westminster Hall

[Tonia Antoniazzi]

That is so true, and I thank the hon. Lady for her contribution. This is what is so brilliant about petitions and about Caitlin wanting to make a difference and have her voice and those of over 150,000 heard, because we do not want that to happen here.

[Sir Desmond Swayne (New Forest West) (Con)]

I am confused. The reality is that the conditions under which abortions are permitted are set out in statute law. They would require primary legislation to alter them. The petition appears to wish to hand the decisions to judges by establishing a right that will be interpreted by judges in exactly the way that Roe v. Wade has been reversed by judges. It is much better to stick with the position that we have, based on democratic provisions in this House and statute law.

[Tonia Antoniazzi]

I thank the right hon. Gentleman for his contribution. I am not presenting my views per se; I am presenting the views of the petitioner, and I will go on to discuss how things would work. That is what we have to discuss. The petition presents a particular view and, although I agree with much of that view—not that that is relevant—it is how it would work, as he rightly points out, that we are discussing. It is therefore important that we sit in this Chamber and discuss it, but I thank him for his contribution.

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[Stella Creasy]

I disagree with the hon. Lady, and I invite her to talk to campaigners in my community who feel very passionately about where the line about the right to religious freedom is drawn, or the right to freedom of speech. Those are not uncontested subjects. We all passionately believe that human rights are important, but how they are applied and what they mean in practice can often be a very different thing. I argue that a woman’s right to choose is something that the majority of people in this country—multiple public opinion surveys now back this up—believe should be a right for women. Right now, it is not a right for women. A woman does not have the right to choose to have an abortion in this country—we need to be very clear about that, because that is where this debate is coming from.

It is also why I agree with the right hon. Member for Gainsborough when he says that this should be a parliamentary matter. That is exactly what the petition is calling on us to do, as are those conversations about whether or not the Bill should include that. I simply say to the right hon. Gentleman that I do not know who in this place he means to be a hijacker, but I have never believed that the role of the Opposition is to sit on the sidelines for five years, cheering on the Government’s work. The role of the Opposition is to make progress on the issues that we are concerned about. If we can make progress on this very issue, I wager it will make a difference in many ways that he has not yet realised.

We do not have the right to an abortion. Even those women seeking abortions do not have a right to an abortion. They have to secure the support of two doctors who have to act in good faith to agree that a woman should have an abortion because the alternative would cause her mental distress or a physical threat to her life. That is not a right.

[Sir Desmond Swayne]

I am interested to hear what the hon. Lady thinks the effect would be of having a general right to abortion in statute, because that would not set aside the provisions of the existing statute. Judges would be constrained by statute law. They cannot set it aside. It would merely be gesture politics.

[Stella Creasy]

I am glad that the right hon. Gentleman raises that question, because he need not look far for an exact example of what does happen we have a human right to an abortion. Let us be clear: it is women in England, Scotland and Wales in this nation state who do not have the right to an abortion. Women in Northern Ireland do. We now have legislation on our statute book that directly gives women in Northern Ireland a human right to an abortion, which means—

[Sir Desmond Swayne]

Without an Act.

[Stella Creasy]

Well, there was an Act. The right hon. Gentleman is shouting—I guess he missed out on the debates we had on this issue in 2019, when this place did indeed pass legislation. That is a very interesting mechanism for this Bill of Rights. It is why this Bill could be the right vehicle and why a human rights perspective is important. Those of us who believe the time has come to say that abortion is healthcare and to remove the criminal element recognise that removing the criminal element requires us to replace it with an alternative foundation for those rights. Those of us who believe we should make abortion a human right in this country argue that a human rights perspective should be that alternative. We see Northern Ireland, where that has now happened, as an opportunity to learn from that.

Let me preface my statement by saying that just because we have a human right to abortion in Northern Ireland does not mean, as yet, that we have satisfactory legal, local and safe abortion services. Those who are hostile to abortion have used their position to prevent access. However, what is different and so powerful about having that human rights approach is that it is the Secretary of State who has to drive change in Northern Ireland, because he has to defend the human rights of women in Northern Ireland as a reflection of the Committee on the Elimination of Discrimination against Women protocol.

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[Sir Desmond Swayne]

Will the hon. Lady give way?

[Stella Creasy]

I was coming to a close, but I will happily take the right hon. Gentleman’s question.

[Sir Desmond Swayne]

The answer to the question that the hon. Lady asked my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) is that we take this caveat to an absolute right because there has to be a balance of rights, and there is another life involved in the question of abortion. That is why we constrain it by the proper means of parliamentary legislation, rather than handing that decision to an unaccountable judge.

[Stella Creasy]

On this side, I hope to hand that decision to a very accountable woman, because I trust women to make the right choices for their own bodies. When the right hon. Member says “we”, I hope he is not talking about men, because the majority of men and women across this country recognise that they should trust each other to make these very difficult, sensitive decisions, and not deny women that basic human right.

If the right hon. Member for New Forest West (Sir Desmond Swayne) wishes to look at the example of Northern Ireland—from what he says, I suspect he has not done so yet—he will see that adding a human rights foundation to the legislation does not remove any of the regulations around time limits, any of the importance placed on medical professionals or any of the safety requirements, nor does it introduce sex selection. It sets a foundation that is based in healthcare, not criminal legislation, and—crucially, for many of us—in equality. Were we to say that the right hon. Member could not have basic bodily autonomy, I would venture that he would be as furious and concerned about what that meant for him as we are about what it means for women.

The previous Justice Secretary and the current Justice Secretary have both argued that we do not need to include the right to abortion in the Bill of Rights because that right is settled, but Conservative Members have just shown that it is not; this is a very live debate. It is absolutely right that our constituents have an opportunity to lobby us and that Parliament has an opportunity to look at where we can make progress.

The decision to overturn Roe v. Wade caused shockwaves, but it also highlighted the fact that that right was written into the legislation in terms of liberty and privacy, not as a basic human right. Including abortion in our legislation, as set out in the petition, would write it in as a basic human right. Many of us do not agree with the Government’s piece of legislation; nevertheless, we will not be deterred from seeing how we can make progress to defend and uphold these rights, because what Roe v. Wade teaches us is that we cannot be complacent. Indeed, when we have a Government who, as part of an international conference, chose to remove a commitment to the human rights of women around the developing world to access sexual and reproductive services, I know that that concern is merited.

Will the Minister clarify why the sauce is good for the goose, but not for the gander? Why do we have a piece of legislation that will set limits on interference in free speech and on deportations, but the Government can somehow say it would be wrong for the courts to be involved in upholding a woman’s right to choose?

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[Fiona Bruce]

I thank the hon. Member for that intervention. In this country we already allow abortions to term where the unborn child has a relatively minor and correctable physical condition. I have spoken about that many times before in the House because I have a son who was born with a club foot. Some 90% of babies with Down’s syndrome are aborted. A right to abortion would open the door to even more abortions after 24 weeks —a period of time inconsistent with medical advances that now enable babies prematurely born before that time to survive to 22, and in some cases even 21, weeks.

[Sir Desmond Swayne]

Notwithstanding my hon. Friend’s principled view, which I respect, that life begins at conception, she has now addressed the question that my right hon. Friend the Member for New Forest East (Dr Lewis) asked: when do rights come to the child? The answer is: on the basis of viability outside the womb. Whether we have got the dates right or not, I do not know, but that is the answer to his question.

[Sir Charles Walker in the Chair.]

[Fiona Bruce]

I am relieved that it is for this House to make a decision on when we review those weeks. I am hopeful that we will continue to be in a position to do so for a long time to come. We now need to look at that issue again, and see a reduction in the number of weeks from 24.

We know that late-term abortions are unsafe for women. Most European countries have abortion gestation limits of 12 to 14 weeks—half of ours—and research shows that late-term abortions are distressing. Finally, polling shows that women do not want a time limit increase. All that would be thrown into the mix if abortion were classed as a human right.

In conclusion, there are many other things I could say against this petition, but I will just ask the House a simple question: what type of society do we want to create for our country? Surely it is one that promotes a culture that upholds and respects life, including unborn life. I am so grateful to live in an age where I know there is science behind me to say that a beating heart can be detected at six weeks’ gestation, that the ability to feel pain can be evidenced from as early as 12 weeks, and that the sucking of thumbs can be seen at 15 weeks. I stand for the rights of the unborn because it is undeniable that they have life. As the campaign slogan states, “Both lives matter.” Let us develop laws that better protect the life of the unborn child, alongside the lives of women.

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[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to again serve under your chairmanship, Sir Charles. I thank my hon. Friend the Member for Gower (Tonia Antoniazzi) for presenting this petition, and particularly for the sensitivity with which she did so, outlining the complexities thrown up by the petition and the role that a Bill of Rights could—or, perhaps, could not—play in furthering women’s rights over their own bodies. I also thank Caitlin, who is in the Public Gallery, for the petition itself. Whether there are bigger campaigns in play around the world or around the country, it is a great thing for democracy that an individual citizen can hold all of us in this place to account through hard work and dedication to their own particular cause.

I completely understand and recognise the very real anxieties that have prompted this debate. It is an outrage that 36 million women in 26 American states were stripped of their right to a safe and legal abortion when Roe v. Wade was overturned earlier this year; it was a devastating setback for women’s rights in the United States. It reminds us that we must be vigilant in the protection of our hard-won rights, especially in the face of organised far-right campaigners who seek to roll them back.

[Sir Desmond Swayne]

Will the hon. Gentleman give way?

[Alex Cunningham]

No, not at the moment. It was not until 1967 that women in Britain won the right to a safe and legal abortion, and it was just three years ago that 99 MPs voted to keep abortion illegal in Northern Ireland, including the current Secretary of State for Justice. I will begin by affirming the Labour party’s commitment to a woman’s right to choose. We believe that access to a safe, legal abortion should be available throughout the UK, and we will always protect and safeguard that right.

We have had many contributions today. The right hon. Member for Gainsborough (Sir Edward Leigh) pressed the opinion that Parliament should remain sovereign in abortion policy, so perhaps he will also support decriminalisation.

My hon. Friend the Member for Walthamstow (Stella Creasy) and I have had a few conversations and exchanged emails in the last 24 hours or so. She talked about the need for clarity on any rights under a Bill of Rights, and stressed how it would still be subject to challenge. She talked about variable rights in different parts of the UK and the need for a consistent approach, but ultimately about the need for a woman to have the right to determine what happens to their own body.

The right hon. Member for Basingstoke (Mrs Miller) was supportive of the work to give women autonomy over their own bodies. I am not surprised—I have heard her speak on many occasions. She also summarised current legislation and queried the investigation of medical abortions. Like so many people she, of course, supports decriminalisation.

The hon. Member for Strangford (Jim Shannon) had a very different opinion, but he spoke of the need to respect each other’s views and explained what he saw as the view of the Northern Irish people and why legislators should be mindful of that. The hon. Member for Congleton (Fiona Bruce) took the usual robust approach in defining her view. She relied on international legislation and various treaties in support of opposition to abortion in all its forms, but it was good to hear her say, in response to my hon. Friend the Member for Gower, that she did not believe that women seeking an abortion should be criminalised.

My hon. Friend the Member for Pontypridd (Alex Davies-Jones) spoke about a healthcare right and a properly funded and available service, and I agree with that. She stressed that behind every abortion was a woman with a decision to make.

The hon. Member for Blackpool South (Scott Benton) questioned the evidence of overwhelming public approval to decriminalise abortion, but I did not hear why he actually believed that. The hon. Member for North Antrim (Ian Paisley) stressed that men should be involved in any abortion decision, rather than it being a woman’s decision alone, but he also raised the rights of a woman who a man may try to force to have an abortion against her will.

The right hon. Member for North East Somerset (Mr Rees-Mogg) spoke on what he believed was a “cult of death”. He then said that he would rule out abortion in all circumstances, including rape and incest.

The hon. Member for Upper Bann (Carla Lockhart) spoke of the need for women to be protected from men, and stressed the horrific figures of domestic violence in her area. It has been a robust debate, with lots of contributions.

[Sir Desmond Swayne]

The hon. Member began his excellent summing up of the debate by quoting, I think, that 126 million women had lost their right to abortion. I do not want to get involved in the detail of US politics, but the reality is that many of those women will retain their rights under state legislation. It was simply a question of the federal right being removed.

[Alex Cunningham]

I do not disagree with the right hon. Member, but the fact remains that there are lessons for us to learn from what is happening in America.

The introduction of the Human Rights Act 1998 is one of the proudest achievements of our Labour party. We are deeply concerned about the Government’s attacks on it. I have a number of reservations about the mechanism proposed by the petition. First, the Government’s rights removal Bill—they call it a Bill of Rights—is shambolic. It would divide the nations of the UK, weaken the rule of law and create additional barriers to British people seeking justice.

The End Violence Against Women Coalition described the Bill as

“a major step backwards for victims and survivors’ ability to seek justice and a direct attack on women’s rights.

We have long called on the government to save our Human Rights Act, which is an essential tool for upholding women’s rights to live free from violence. It provides victims and survivors with essential legal protections, as well as vital tools to challenge the state and its institutions for failing to protect us from gender-based violence.”

UK in a Changing Europe, a UK-based network of academics and researchers, has also expressed concerns:

“The Bill of Rights Bill would prevent UK judges from interpreting Convention rights in ways that create positive obligations on public authorities…Many landmark cases under the HRA have relied on positive obligations: for example, the Act allowed bereaved families and survivors of the Hillsborough disaster to expose the negligence of state officials, using the positive obligation to investigate alleged breaches of the right to life….Not only does the Bill of Rights preclude new interpretations of rights that impose positive obligations on public bodies, it also discourages courts from applying positive obligations that have already been identified in previous cases. This could lead to legal uncertainty, and to divergence from the case law of”

the European Court of Human Rights,

“since positive obligations are an important principle applied by the Court to ensure practical and effective protection of rights, particularly for people whose rights are most vulnerable to abuse (such as children, victims of sexual violence and people seeking asylum).”

Everyone in the Chamber will be familiar with the case of John Worboys, the black cab rapist, who raped and sexually assaulted more than 100 women over the course of six years. Relying on the positive right under article 3 to not be subjected to inhumane or degrading treatment, two of his victims challenged the Metropolitan police’s failures to stop that horrific course of offending. A UK court held that, because of our obligations under the Human Rights Act, the police were under a legal duty to take reasonable steps to investigate credible allegations of serious crime.

Labour will oppose the rights removal Bill, under which victims of serious sexual assault will lose the right to force the police to investigate crimes committed against them. The Bill is not about giving people extra rights; it is about taking our hard-won rights away. We cannot lose sight of that fact.

My second concern about the petition is that we cannot trust this Government to safeguard such an important right properly in their proposed legislation. The rights removal Bill is the pet project of the Secretary of State for Justice. It was brought back only when he was reappointed to his former position. As I mentioned, in 2019 he voted with 98 other MPs to keep abortion illegal in Northern Ireland. He has described the Government Equalities Office as “pointless” and suggested it be abolished. He even called feminists “obnoxious bigots”, and defended that remark just a couple of years ago on “The Andrew Marr Show” during his failed prime ministerial bid. This is not a Secretary of State who has women’s interests at heart.

The final reason why I do not think that the rights removal Bill is an appropriate mechanism for the reform of UK abortion law is its scope. Labour has committed to decriminalising abortion—to removing it from the scope of UK criminal law. In two cases next year, women will stand trial for accessing abortions in the UK. If found guilty, the maximum sentence is life imprisonment, as my hon. Friend the Member for Walthamstow said. A coalition of organisations, including the Royal College of Obstetricians and Gynaecologists, Amnesty International, Southall Black Sisters and the British Pregnancy Advisory Service, wrote to the Director of Public Prosecutions, requesting that the prosecutions be dropped, and noting that over the past eight years at least 17 women have been investigated by police for ending their own pregnancies, although it believes that the actual number is likely to be a lot higher. As we heard, last year a 15-year-old girl was investigated by the police after an unexplained stillbirth at 28 weeks. She was accused of illegal abortion and reportedly driven to self-harm by the year-long investigation. Police stopped pursuing the case after a coroner concluded that the pregnancy had ended because of natural causes.

As Clare Murphy, chief executive of BPAS, put it:

“What kind of society treats women in this way?...It is abhorrent that 160 years later vulnerable women should suffer from legislation drawn up in a world which is unrecognisable to us now, and”

be

“punished for making decisions about their own bodies.”

It is not clear to us that the scope of the Bill will allow for the reforms that we need in order to update our abortion laws, so that they represent the values of our modern Britain, but I want to underline once again that the Labour party supports women’s right to choose, and I also want answers from the Government on how they plan to make UK abortion law fit for the 21st century. The Tories are taking the UK backwards with this so-called Bill of Rights. Labour will fight tooth and nail to uphold the rights of British citizens by defending the Human Rights Act. We saw the previous Lord Chancellor commit this Bill to a very slow back burner in the hope that everyone would forget about it. No one can defend the indefensible. The Tory Government and Lord Chancellor have got their priorities all wrong with a Bill that is about taking away our rights, rather than being the vehicle for enshrining new ones. Instead of bringing forward the much-awaited victims Bill, the Lord Chancellor seems to be determined to press on with his divisive rights removal Bill, which will make life tougher for our citizens, not better.

What is clear from this petition and the ensuing debate, however, is that the Government must do more to support women’s rights, so I will be very interested to hear the Minister’s thoughts on how the Government will engage more with women and women’s groups in order to address their concerns and ensure that their right to choose is protected.