Abortion: Offences against the Person Act

Diana Johnson Excerpts

Thursday 15th June 2023 Commons Chamber

[Mr Speaker]

Before we come to the urgent question, I must tell the House that it is very possible that an appeal against the sentence will be made. While I am content for the House to discuss the general issues, Members should avoid commenting on the specific sentence in this case. They can, of course, discuss the changes they would like to see made to the law. I also remind Members that they must not criticise judges in particular cases.

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

(Urgent Question): To ask the Secretary of State for Justice if he will make a statement on section 58 of the Offences against the Person Act 1861.

[The Minister of State, Ministry of Justice (Edward Argar)]

Section 58 of the Offences against the Person Act 1861 is the offence of administering drugs or using instruments to procure abortion. I recognise that abortion is a highly emotive issue across the House, and I understand the strength of feeling on both sides of this debate.

The Government are committed to ensuring access to safe, legal abortion, and ensuring that all women in England and Wales have access to regulated abortion services on the NHS. I also want to be absolutely clear at the outset that, as you have alluded to, Mr Speaker, I am unable to comment on any decisions made by a court in specific cases. Decisions made by a court are based on the facts and evidence before the court, and are a matter for the court and the judiciary. Access to abortion in England and Wales has been settled in law by Parliament, and we do not intend to change this. It takes nothing away from our commitment to ensuring access to safe, regulated abortion.

Let me briefly set out the law as it stands. The Abortion Act 1967 allows for safe and lawful abortion in England and Wales. It defines the criteria under which abortions or terminations can legally take place. In effect, lawful abortions can be carried out in the first 24 weeks of pregnancy, where two doctors agree that the abortion is necessary and that it falls within one or more of four grounds. In practice, this means that access to an abortion is available to those who need and want it. Abortions beyond 24 weeks are also possible in more limited circumstances.

Abortions outside of these provisions are a criminal offence in England and Wales, while the criminal law in Scotland and Northern Ireland is a matter for the devolved Administrations. In England and Wales, the criminal law provisions in the Offences against the Person Act 1861 and the Infant Life (Preservation) Act 1929 have to be seen in conjunction with the provisions in the Abortion Act 1967, which provides exemptions to the criminal offences. The Government have a duty to see that the provisions of these Acts are properly applied, until and unless Parliament chooses to further amend the law. We believe that abortion continues to be a matter of conscience, and any changes to the criminal offences relating to abortion or to the Abortion Act 1967 would normally be subject to a free vote and a matter for Parliament, rather than a matter for His Majesty’s Government.

--- Later in debate ---

[Dame Diana Johnson]

Thank you, Mr Speaker, for allowing an urgent question on this important matter of public policy. As we know, earlier this week a mother of three children was sentenced to a period of imprisonment for ending her pregnancy and was prosecuted under section 58 of the Offences against the Person Act, a piece of legislation dating from 1861 that carries a maximum sentence of life imprisonment.

This case was desperately sad, and thankfully rare. It has been debated widely in the media and throws up important questions that merit an open debate in a healthy democracy. Crucially, though, it throws a spotlight on our antiquated abortion laws. Government and Parliament must look at this outdated legislation and make it fit for the 21st century. Can I therefore ask the Minister the following questions?

How do the Government reconcile the fact that women in Northern Ireland have already been removed from the criminal justice system by a vote in Parliament on 9 July 2019? The provisions of the Offences against the Person Act no longer apply in Northern Ireland, and there is a moratorium on abortion-related criminal prosecutions, so women in one part of the United Kingdom are treated differently from women in other parts of the United Kingdom in relation to the criminal law, which cannot be right.

Secondly, what is the Government’s view on the statement from leading medical bodies, including the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, raising concerns about the chilling effect of the current legal position and of the custodial sentence in this case, which they say

“may signal to other women who access telemedical abortion services, or who experience later gestation deliveries, that they risk imprisonment if they seek medical care”?

Finally, as we know, decriminalisation does not mean deregulation, and time limits would still apply. Have the Government undertaken any review of the necessary regulation that would be required if the criminal law were removed from this area of healthcare law in England and Wales? And have they engaged with the royal colleges and Professor Dame Lesley Regan, the women’s health ambassador, on establishing a new regulatory regime for abortion that does not involve putting women in prison?

[Edward Argar]

As this is my first opportunity at the Dispatch Box this week, and as an east midlands Member of Parliament, I put on record that my thoughts are with the families and all those affected by the terrible incident in Nottingham. Our thoughts go out to that great city and all those involved.

It is important to remind the House that the right hon. Lady has taken a principled and passionate interest in this issue for many years. I will not comment on the specifics of the case. The House has heard her very carefully worded references and, if she will forgive me, I do not propose to add to them because there is still the possibility of further legal proceedings in that case and I do not want to pre-empt anything in that space.

The long-standing position remains that it is for this House to seek to make changes, if it so wishes, but not for the Government. As I said, any such vote would be, in normal process, a free vote and would be brought before the House in the context of a private Member’s Bill or perhaps through the tabling of a dextrous amendment, which I know some Opposition Members are not averse to doing, and with success.

The position in Northern Ireland is due to a decision made by the House, cognisant of the fact that there would be different regimes in Northern Ireland and in England and Wales. Again, we respect the will of the House in that respect.

Sentences are a matter for the courts. As the right hon. Lady said, Parliament set the maximum sentence at life imprisonment, and it is open to Parliament to change that if it so wishes, but the courts have to apply the law as set by this Parliament, or by a previous Parliament many, many decades ago.

I accept the right hon. Lady’s final point that any change would not be about deregulation, and I heard her make that point very clearly on the radio a few days ago, seeking to frame it in a public health or health context, rather than a criminal context. Again, that is a matter for the House, not for the Government.

I am not aware of any specific conversations between the Government and the royal colleges and others on regulation. Were Parliament to show its will and seek to change the law, the Government would, of course, work to implement the will of Parliament effectively and efficiently.