Abortion Act

Debate between Dominic Grieve and Neil Parish

Wednesday 9th October 2013 Westminster Hall

[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.

[Neil Parish]

Is my right hon. and learned Friend saying that he believes the law to be correct as it is? If that is the case, why is abortion being allowed for gender selection?

[The Attorney-General]

I think my hon. Friend might misunderstand. We can have a long moral and ethical debate about the workings of the 1967 Act, as we have had in Parliament—I dare say that many in the room will express different views on the Act and all sorts of connected aspects—but that would be about an issue of policy. The question I am dealing with in this debate is whether, within the framework of what was intended by the 1967 Act, it is possible to enforce the law as Parliament intended it to be. I hope I will be able to develop that thought in a moment.

My hon. Friend the Member for Gainsborough asked about the statistics on those prosecuted under the 1967 Act. Since 2010, there have been 25 prosecutions, and he is right that none has been of medial professionals for failure to observe the terms of the 1967 Act.

[The Attorney-General]

So far as this case is concerned, the decision is that of the CPS. For me to overturn or review somebody else’s decision in a case in which the decision does not fall on me would be wrongful interference in the independence of the prosecution and its discretion. As far as I am concerned, the function I have has been performed, in that there has been a review by the DPP of his decision and he has been able to explain it fully in the explanation he has provided. As I have already indicated, I do not consider anything to be in any way improper or unreasonable in that explanation or in how he has approached the matter. If the hon. Gentleman will let me develop my argument, he may understand why that is the case in a moment.

The question in this case is not about proving whether gender-specific abortion was being offered on demand. It was about whether the doctors had done what the law requires, which is to reach an opinion in good faith about the consequences for the patient of continuing with or terminating a pregnancy. I appreciate that abortion gives rise to strong views based on ethical and philosophical differences, and I have no doubt that it will continue to be the subject of much public debate, but the issue for the prosecutor is the law as it stands.

[Neil Parish]

Is that not semantics? Is the Attorney-General saying that doctors are not prosecuted because they took the decision that abortion due to gender selection was all right in theory because the mental health of the mother might be affected or based on some other grounds that are acceptable under the 1967 Act? That seems to be pure semantics.

[The Attorney-General]

I am sure that my hon. Friend has had an opportunity to read the full note produced by the DPP. It sets out in detail, which I do not have time to go into this afternoon, the evidence in the case of each doctor presented to the CPS. My hon. Friend will appreciate that it is important that the evidence in each case is looked at separately. The DPP goes through it in detail and explains that the issue is not gender-specific abortion. If somebody says to a doctor without more ado, “I want an abortion on gender-specific grounds,” and the doctor says yes, the case might be a clear-cut matter to prosecute because the grounds fall clearly outside the ambit of the 1967 Act. The section of the Act with which we are concerned is about the physical and mental health of the woman. It is about good faith, in that it is for the doctor to satisfy themselves that any abortion falls within the criteria. If my hon. Friend looks at the matter in detail, he will see why the director came to the conclusion he did, which I will address, but in briefer terms.

The CPS concluded, with some difficulty, that there was just enough evidence available in the cases to bring the good faith of the doctors into issue. I think that the hon. Member for Islington South and Finsbury was wrong when she said in her final statement that the position had changed. The DPP’s statement of reasons says, nevertheless, that the evidence was not strong in either case and the prospects of conviction would not in his judgment have been high on the facts as they appeared. The matter does not rest there. Even in a case that just about passes the evidential threshold, the CPS is obliged to consider whether a prosecution would be in the public interest. That is one of the tasks that we require it to do. The fact that an evidential threshold is passed—a point raised in the debate—does not mean that a prosecution has to, or indeed should, follow.

The decision was that prosecution did not pass the public interest threshold. It is that aspect of the decision that raises wider issues of public policy, some of which we have debated today, which I accept are an entirely legitimate topic of debate. The issue, as I see it, is this. Because the law makes the difference between lawful and unlawful abortion subject to a medical test, doctors have to be able to carry out that test on a case-by-case basis according to proper medical standards of care, skill and judgment. That is, effectively, what the test of “good faith” in the 1967 Act means. Doctors are required by law to make such decisions to a proper professional standard. If a question arises about whether a doctor has done so in any given case, a law enforcement agency must look to approved medical practice for assistance in identifying the proper standard. The same thing applies in virtually every case involving professional standards. Dare I say it, it would apply even in the case of a plumber who carried out some work that led to a catastrophic outcome.