Abortion Act

Debate between Glyn Davies and David Burrowes

Wednesday 9th October 2013 Westminster Hall

[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.