Conscientious Objection (Medical Activities) Bill [HL]

Lord Alton of Liverpool Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 23rd March 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

I absolutely accept that of course that is right. I was putting it in that shorthand way simply to make the point. Of course, everything that I say in this respect plainly applies only to lawful abortion under the Act. It is in that context that we are debating the question. I suggest in parenthesis that it is intolerable that, for example, certain abortion clinics are from time to time surrounded by protestors who harass and intimidate those who are attending for—let me insert the word—lawful treatment by termination.

I return briefly to the judgment in Doogan, which explains, at paragraph 11, that participation means actually taking part in the process. Following a lengthy section of the judgment, which I will not weary the House with but which closely analyses the competing arguments on the case, the noble and learned Baroness, Lady Hale, returns to the all-important question at paragraph 38, the paragraph that the noble Lord, Lord Steel, quoted. I will just give a slightly fuller quotation, because he left out one or two bits that I think are worth reading into the record. He read this bit but I will read on. Paragraph 38 says:

“It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.


That is the theme taken up by the shorthand encapsulation of this judgment in Amendment 1 and a certain amendment which will follow.

In the very next paragraph of the judgment, there then follows an enormously helpful and detailed exegesis of that approach—a test of the principle against what was in that decision. It is an agreed list of 13 tasks included in the role of the two petitioners in that case, as labour ward co-ordinators. Some of those tasks were held to be covered by the conscience clause and others were held not to be. Some were specifically held to be covered but to an explicitly defined extent.

It is tempting to read out the entire paragraph and to invite a clear indication from those who resist these amendments as to where they are suggested to be too restrictive of the exemption provision. But in the interests of brevity I will simply quote three of the shorter sub-paragraphs, which set out certain of the agreed tasks. The first task referred to,

“management of resources within the Labour Ward, including taking telephone calls from the Fetal Medicine Unit to arrange medical terminations of pregnancy; this is not covered by the conscience clause as interpreted above”.

The sixth task referred to is,

“responding to requests for assistance, including responding to the nurse call system and the emergency pull; responding by itself is not covered; it would depend upon the assistance requested whether it was part of the treatment for a termination”.

Finally, there is sub-paragraph 11—no, perhaps sub-paragraph 10, as it is shorter. It refers to:

“communicating with other professionals, eg paging anaesthetists; this is a managerial task which is not covered by the conscience clause as interpreted above”.

If it is unamended, the Bill would provide exemption from all these tasks by those in the position of the two Doogan petitioners.

[Lord Alton of Liverpool (CB)]

I wonder whether I may press the noble and learned Lord on the specific question of exemption. While I share some of his concerns that a list that included hospital porters and so on would be exhaustive, was never envisaged and is not what I think the sponsor of the Bill would wish to see, where does the noble and learned Lord stand on the question of Mary Doogan and whether she should have the right to opt out of participating, even through facilitation through lists rather than in a hands-on way as the amendment states? Where would he stand on something as specific as that case? Notwithstanding whether it was lawful or not, does he think that the law should be changed to provide reasonable accommodation for someone such as Mary Doogan?

--- Later in debate ---

[Lord Mackay of Clashfern]

I am not saying that this is right; I am trying to describe what I believe to be the conscientious objection. I am not saying that it is proper. I have not applied for the health service, unfortunately, so I do not need to say what the extent of my conscientious objection would be, but there is no doubt in my mind that that is the nature of the conscientious objection, although people may have slightly different views about how far it extends. That is why the suggestion of the noble Lord, Lord Winston—I acknowledge his wisdom—is the best way forward, subject of course to making sure that it was used not in a discriminatory way but in trying to accommodate the full extent of the objection within the framework of the administration of the health service.

[Lord Alton of Liverpool]

Does the noble and learned Lord accept, though, that the narrow case of Mary Doogan and the midwives in Scotland—she had after all been involved in more than 5,000 live births, bringing children into the world—illustrates what could never have been in the minds of legislators in 1967, as one can see in the Hansard of that period, and how much things have changed in the intervening years? That is not just about changes in attitude and culture; to pick up the point that the noble Baroness just made to the noble and learned Lord, there are those among us who believe that life begins at conception and that the science is right, and therefore that the law is right in saying that, for instance, as he referred to earlier, only for the first 14 days can experiments take place on the human embryo. That must be 14 days after something, and the law states that explicitly. That is not an unreasonable position, although I accept that these are contested positions. How therefore do we find, in a society where we respect difference, that there can be contested positions without discrimination falling on those who carry out those contests?

[Lord Mackay of Clashfern]

That is why probably the best solution that I have seen so far is to try to accommodate a contract on which you enter such conscientious objections as you have. I can see that that may limit the opportunities within the health service that a person with a conscientious objection has, but then that may be part of what you have to do.

[Lord Alton of Liverpool]

Does the noble and learned Lord therefore think it is a good situation for us to be in that, for instance, people who have religious views or who are atheists and are opposed to taking the life of an unborn child in the womb are by and large pretty well excluded now from gynaecology and obstetrics? The noble Lord, Lord Winston, says from a sedentary position that that is not true. If he can give an example to me of, for instance, people who hold deeply committed Christian evangelical views or who are committed Roman Catholics or, for instance, Orthodox Jews who would support, for instance, the taking of life up to birth, as the law now allows since 1990 in the case of Down’s syndrome, I would be surprised, but I would be interested to hear those names.

[Lord Winston]

I would like to correct that impression, if I may. I hope it might be useful if I might still be able to speak in due course about the amendments that I tabled, but not at this stage.

I cite as an example my own unit, and this situation was not because I was the head of it. There were a number of people with very orthodox religious views from three or four different faiths, including Jews and Catholics, some of whom were involved with in vitro fertilisation at different levels. We could accommodate those because we had the staff to do so. I am not convinced that, in the field of obstetrics and gynaecology, the health service has been inimical to people who are orthodox Catholics.

--- Later in debate ---

[Lord Alton of Liverpool]

The noble Lord makes a very good point. Indeed, a case was referred to earlier in Committee concerning Barbara Janaway, who was exactly what the noble Baroness, Lady Tonge, described, a medical secretary. She said she would not, “set the ball in motion”, as a result of which she lost her job and the courts upheld that she should not be able to continue in that post. The debates in 1967 in the House of Commons did not consider cases such as that, because it was not envisaged that that might be a problem. That is surely why the noble Lord is right in saying that although the Supreme Court may rule in a particular way and say that that is where the law now stands, it is the job of Parliament to say that perhaps the law now needs to be changed.

[Baroness Thornton]

Or not.

[Lord Alton of Liverpool]

Or not.

[Lord McColl of Dulwich]

Thank you—that is very helpful.

Somebody did suggest that there was not a great number of people with a conscientious objection. The NHS employs 1,200,000 people. Surely they can find enough people who would not be offended to be asked to do abortions. Has anyone thought about that? No. Surely it is possible for the NHS, with such a large workforce.

--- Later in debate ---

[Lord McColl of Dulwich]

That is exactly right but, as I keep saying, there are hordes of people around—1,200,000 people—so you can surely find somebody who can delegate it. The noble Lord keeps pointing to the Bill, but surely there are so many people around in the clinic that somebody can do the delegation and make the arrangement.

[Lord Alton of Liverpool]

My Lords, I am sure that the noble Lord is right in his interpretation of the Bill. It lays no duty on any other person to carry out that delegation and he is correct that there would be other people working in the service who would doubtless carry on as they do now. One abortion takes place every three minutes in this country, which is 20 every hour, 600 every working day and more than 200,000 every year. There have been more than 8 million abortions since 1967. Clearly, there is no shortage of people willing to participate in such procedures, but this Bill is about those who are unwilling to participate in them.

[Lord Cashman]

Before the noble Lord, Lord McColl, replies, at the moment there is a duty to refer, but that duty would be overruled by Clause 1(2).

--- Later in debate ---

However, our autonomy, as practitioners in the National Health Service, can be threatened as well. If we are going to make any sense of this, we have to do exactly what the right reverend Prelate the Bishop of Peterborough said. We have to look at some of the wording like “hands on”, which is a big problem. We have to be clear that, hands on or not, the autonomy of the individuals working in the service is included. That remains a big problem, but I do not believe that any of these things are insoluble.

[Lord Alton of Liverpool]

My Lords, in his remarks just now the noble Lord invited me to contribute at this point in the Committee’s proceedings. I spoke at Second Reading and I do not intend to repeat what I said then. The noble Lord, Lord Steel, will not be surprised that I oppose his amendment. Nevertheless, over the nearly 50 years that we have known one another, I have always been grateful for the respect he has shown to an alternative view to the one he puts now and has put in the past. I was particularly grateful to him when this became a matter of policy in my former party. The noble Lord, Lord Steel, also resisted it becoming party policy because, as he said, it would polarise attitudes and mean that some people could no longer follow some issues of conscience because of party diktat.

Some 51 years ago, when I was at school, I wrote to the then leader of the noble Lord’s party, the late Jo Grimond, asking whether the Abortion Bill, which the noble Lord had placed before the House of Commons, was a matter of party policy or conscience. I was given the forthright reply: there are different views about this and it is a matter of conscience. It was never a problem for me, as the only new member of the parliamentary Liberal Party in 1979, to serve under the noble Lord, Lord Steel, and, indeed, to be his Chief Whip. Reasonable accommodation—how we accommodate one another—which I mentioned in my earlier intervention, is at the heart of what this debate should be about. The noble Lord, Lord Winston, made some telling and helpful points in his contribution. The noble Lord, Lord Steel, said: “This isn’t the way to go about this”, but he would agree that, 50 years later, many things have come to pass that were never anticipated during the debates in 1967. A proper review—perhaps outside the proceedings of this Chamber—of the legislation, its implications and the ways we can protect people such as Mary Doogan is long overdue.

She spoke in your Lordships’ House and her case goes right to the heart of today’s debate. She is, as the noble Lord, Lord McColl, said, an extraordinary woman who was involved in delivering over 5,000 babies and said in an interview:

“It is not about religion. It’s about conscience”.


She went on:

“It goes against everything we stand for … the women I cared for would never ever have known my views on abortion”.


This is very important. Here is someone who has been driven out of her calling in life. She did not go into midwifery to carry out abortions; she went into midwifery to deliver babies. Although I understand the reasons why the noble and learned Baroness, Lady Hale, found as she did—my noble and learned friend Lord Brown of Eaton-under-Heywood was right to refer to the judgment earlier—it is up to this place, as the noble Lord, Lord Brennan, told us, to then deliberate and decide whether the law should be allowed to continue to stand in that way.

Consider for a moment the changes in the law since 1967 and how they impact on people who may have a profound conscientious objection to the law. One is, for instance, the extension of the Act in cases of disability right up to and even during birth, on the grounds of things such as club foot, hare lip and cleft palate, let alone Down’s syndrome—90% of all babies with Down’s syndrome are now aborted. If I were working as a medic and was told that I had either to participate in—to be hands-on—or to facilitate such things, I would rather lose my job than do that. This is where I disagree with the noble Baroness, Lady Tonge, who said that such people should not join the service. Who do we lose if we take such an attitude to people who, yes, have a different view from the noble Baroness but nevertheless make an extraordinary contribution to the health service?

[Baroness Flather]

This is a very interesting point. Should they leave the service or not? I had a very recent experience when my husband was taken ill; he was dying and was taken to hospital. We had to make a decision about whether to keep his breathing going. My sons and I were there discussing this matter and it was a very difficult time for us. The doctor in charge came and spoke to us and told us what the situation was. We decided it was not the right time to prolong his life. If the doctor had then said, “I’m sorry, I have to get someone else to do this necessary job. I can’t do it because I object to it”, that would have been terrible. You can say that he should have prepared for that in advance, but how can he prepare for everything in advance? You do not know when a dying person will come into hospital.

[Lord Alton of Liverpool]

The noble Baroness is of course right; you cannot ever say with any certainty what will happen and how long someone will live. My noble friend Lady Finlay intervened on that point earlier and, at Second Reading, my noble friend Lady Richardson gave another good example, which I can come back to.

[Baroness Flather]

My noble friend Lady Finlay’s example is perfectly correct but it is not the same as my example. My example is that my husband had got to a stage where he really did not know what was going on. My noble friend’s example is of course totally different—and it is a very good thing that people have hospices to go to.

[Lord Alton of Liverpool]

We are agreed about that. The point I made at Second Reading when my noble friend Lady Richardson intervened on a similar point is that we do not need to go to heroic lengths—that is the phrase people often use—to keep alive someone who would otherwise be dying. I think we sometimes confuse these two things. Let me return, if I may, to the particular point about abortion.

[Baroness Tonge]

Very briefly, by way of personal explanation, I hope I did not imply that people should leave the service if they were required to perform an abortion. I was saying that there are many specialties to go into in medicine. My goodness, you can do anything in medicine, from management and pen-pushing right down to—well, I will not say “down to” because it would demean whoever I got down to. There are many branches of the medical profession; there is no need to go into obstetrics and gynaecology in the knowledge that you will have to do things totally against your conscience.

[Lord Alton of Liverpool]

‘I was very grateful that the gynaecologist who saw my own children into the world did not support abortion. That gave my wife and I great confidence in the lady who was our gynaecologist. I think there should be scope within the service for people to have alternative views. If the phrase “don’t join the service” that the noble Baroness used were to apply, it would mean that people like that would not be able to join the service in the first place.

Another change that has taken place in these years is that it was never envisaged in 1967 that abortion would happen on a regular day-by-day basis on the scale on which it is taking place. In fact, the noble Lord, Lord Steel, often said that it would occur only in rare and exceptional circumstances. There are now examples of some people who have had eight abortions under the National Health Service. You have to ask the question the noble Baroness often asks: “Why is not more done earlier to find alternatives to this?” That too should be in the scope of an inquiry into the workings of the 1967 Act, and so too should be the issue of gender abortions. If I was working in the National Health Service and was told that I had to facilitate the ending of the life of a little girl merely because she was a little girl, I would say no. The 1967 Act surely does not allow for that, and yet we know that there have been such cases and that the authorities decided not to take any legal action. Indeed, there was a vote in another place on a Bill to outlaw such gender abortions. It was lost by 201 votes to 292, so this is not the realms of fantasy. Noble Lords have to ask themselves precisely what their red line would be in regard to questions such as this.

I conclude by giving two opinions from people who have thought about these things in great detail. One is from Professor Andrew Tettenborn, who said:

“The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern … and so organisation rather than participation is increasingly what will be demanded from … unwilling staff”.


I also refer the Committee to the review of Dr Mary Neal, senior lecturer in law at Strathclyde University, who said:

“The core purpose of any conscience provision is to protect individuals from having to share in moral responsibility for something they consider to be seriously wrong. Since the current law leaves some of those who would share in responsibility unprotected, it fails to fulfil this core purpose”.


So when the noble Lord, Lord Steel, said in 1967:

“The Bill imposes no obligation on anyone to participate in an operation”,


I believe he was sincere. When he also said that the “conscience” clause,

“also gives nurses and hospital employees a clear right to opt out”—[Official Report, Commons, 13/7/1967; col. 1318.],

I believe that is what he intended. I do not believe he intended that people such as Mary Doogan should lose their job. That is why my noble friend’s Bill is so important.

[Baroness O'Loan]

My Lords, I have listened with great care to the various speakers who have articulated their views on this group of amendments. It has been a very profound and interesting debate and I thank all contributors.

As I said at Second Reading, the Bill does not seek to limit access to abortion. It could never result in a patient who had expressed a wish not to be resuscitated in an advance decision being forcibly treated. It would not result in treatment, hydration or nutrition being withdrawn from someone who wanted to live. For the avoidance of doubt, it is only about enabling medical practitioners to withdraw from treatment which they perceive for moral or philosophical reasons, or for reasons of belief, to lead inevitably to death, whether of a living person or of an unborn child. It is not about doing things to patients; it is about some medical practitioners not having to do some things.

I want to allude for a moment to the various contributions on the subject of what the noble and learned Baroness, Lady Hale, said. I endorse what the noble Lord, Lord Alton, said—that Parliament could not have envisaged the way in which the abortion law would develop. The noble and learned Baroness, Lady Hale, chose the narrow meaning on the basis that it was more likely to have been in the contemplation of Parliament when the Act was passed. She acknowledged the existence of a broader interpretation. As the noble Lord, Lord McColl, very clearly said, we have the right, as a Parliament, to change things. I am suggesting that we need now to contemplate the situation in 2018, not the situation in 1967, so it is not about refusing people access to treatment. There have been suggestions that it is about denying patient autonomy. A patient does not have and never has had the right to compel a particular practitioner to do a particular medical procedure. However, they have the right to a service and the right, if they want it, to a second opinion, and that must continue.