Abortion (Disability Equality) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Friday 24th February 2017 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I pay tribute to the noble Lord, Lord Shinkwin, for bringing the Bill before your Lordships’ House. It is very important that we come back to what the Bill deals with and possibly leave behind some of what I might regard as the slightly unwarranted assertions that we are in danger of reintroducing back-street abortions wholesale as a consequence of this Bill. What it actually does is give us the opportunity to remove the right to abort after 24 weeks an unborn baby which has a disability unless there is a risk of serious permanent damage to the mother or her life is at risk. I say with the greatest respect that it is, therefore, perhaps a rather more modest proposal than was described by the noble Lords, Lord Winston and Lord Lester.

Amendment 1 deals with the situation in which the foetus will die at or shortly after delivery due to serious foetal abnormality. I absolutely oppose this amendment. The noble Lord, Lord Alton, has very competently articulated some of the problems with the amendment, and I am not going to rehearse all the arguments against it. I will simply tell another little story. I have a friend: her name is Tracy Harkin. Tom and Tracy have a little daughter. When Kathleen Rose was born in November 2006, she had trisomy 13, which is one of the conditions that is generally regarded as what is loosely described as a fatal foetal abnormality. Kathleen Rose is now 10 years old. I want to quote her parents: “She has a beautiful, distinct personality. She is known for her mischievous laughter and her enormous hugs. Last year, she was the angel in the school nativity play, and to all of us, of course, she was the star of the show”.

I have another concern. The amendment in the name of the noble Lord, Lord Winston, would extend the provisions of this Bill to Northern Ireland. As noble Lords will know, Northern Ireland is currently in the midst of a very fraught election campaign. I know that in Northern Ireland the tabling of Amendment 1 and Amendment 8 has caused considerable anger and concern. Both justice and health are devolved to Northern Ireland. Therefore, the law on abortion in Northern Ireland—undoubtedly a sensitive and very controversial topic—should be dealt with only by the people of Northern Ireland through their constitutional processes. And my goodness, the right to do business in Northern Ireland through constitutional process has been very hard won. The Abortion Act does not extend to Northern Ireland. That is a position which, despite consideration, has not changed since 1967. It is therefore entirely inappropriate for this House to be considering introducing a change to an Act that does not apply in Northern Ireland and making that change apply in Northern Ireland.

As noble Lords may be aware, only last February, the Northern Ireland Assembly considered the question of whether abortion should be legal in Northern Ireland on the grounds of what is described as “fatal foetal abnormality”—a term which even the noble Lord, Lord Winston, explained to us lacks clarity. For a disability to be fatal, when does it have to be fatal—within hours, days, weeks, months or years? What of Kathleen Rose, heading for her 11th birthday? After a lengthy debate, the Assembly decisively rejected this move by 59 votes to 40. Following last May’s election, an MLA brought forward a Private Member’s Bill to allow for abortion on these grounds. The Northern Ireland Assembly had plenty of time to consider this Bill—in the nine months since the last election, the Assembly passed one Bill: the Finance Act. However, the Private Member’s Bill was not dealt with and it fell. The Northern Ireland Assembly is the place where this issue should be developed and debated, as it affects the people of Northern Ireland.

I know that some noble Lords do not accept the law on abortion in Northern Ireland, but when Parliament accepted the principle of devolution, we accepted that devolved parliaments have a right to make decisions about their own law, whether we like them or not. Reversing that principle and bringing the powers back to Westminster would be a major constitutional change, which Parliament would have to consider very seriously in the light of all the implications of such an action. It is fundamentally wrong for this House to seek to make a decision in this area and we should not, therefore, support these amendments.

Equally importantly, the sensitivities which surround this amendment are greatly compounded by the fact that they are proposed within five days of the elections in the Northern Ireland Assembly. Those elections are unlikely to result in a devolved Assembly because the two parties having the greatest number of seats currently have indicated that they will not go into government together unless significant preconditions are met. In those circumstances we are moving rapidly towards direct rule, with all the political sensitivities attaching thereto, including the threat to our fragile peace process. Only yesterday there was an attempt to murder a police officer. A bomb was placed under his car; that bomb exploded and in all probability it would have killed him. These are fragile days in Northern Ireland and noble colleagues who are supportive of this Bill are understandably there today and unable to address your Lordships’ House.

Whatever happens, there will eventually be a devolved Assembly which has a mandate to uphold or change Northern Ireland abortion law, and that is where this debate should take place. I hope, therefore, that other noble Lords will join me in rejecting Amendment 1 because of the effect of it on the Bill of the noble Lord, Lord Shinkwin, and in rejecting Amendment 8 because it is repugnant.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my position on the Bill is rather less in favour of the noble Lord, Lord Winston, than it is against the Bill as a whole. I come to the Bill with no pretence to any medical expertise or direct experience in this field but, alas, as an arid lawyer. As such, I seek to stand aside from the huge emotional weight which always attaches to debates on abortion and on disability—as here, where both those emotive topics come together, there is much to be disregarded.

The Bill is concerned with cases where there is a substantial risk, recognised by two doctors, of a child being born with a serious handicap. As the noble Lord, Lord Shinkwin, for whom I have the most profound regard, recognised at Second Reading, at column 2546 of Hansard, if that risk comes to light within the first 24 weeks it is highly likely that, if the mother so wishes, she may be aborted under Section 1(1)(a) of the Act. However, if it is discovered later, the question arises—and this is the crunch question—should the mother be compelled to carry that child to birth or should she be allowed a later abortion?

According to the statistics given at Second Reading by the noble Baroness, Lady Chisholm, at column 2560 of Hansard, in 2015 there were some 230 abortions carried out under the Section 1(1)(d) provision after the 24-week initial period. That squares with the figure given by the noble Baroness, Lady Hayter, of some 200 to 300 women.

The noble Lord, Lord Alton, for whom I have the greatest respect, as I have for all who have taken part on both sides of this debate, referred at Second Reading—as he has again today—to terminations on grounds of “rectifiable disabilities”, and mentioned cleft palate and hare-lip, and in Committee he added club foot. I find it difficult to suppose there have been Section 1(1)(d) cases after 24 weeks on those grounds, and that two registered medical practitioners have certified in the terms of that provision. If they have, that seems to be a matter for the proper policing of this legislation. It is not the altar on which should be sacrificed the interests of those 200 or 300 women a year whom this Bill is otherwise condemning to be required to bear that child, whatever feelings they may develop, and however justifiable that it is a disability which only came to light after 24 weeks. For my part, I would not wish that they be so condemned.