Conscientious Objection (Medical Activities) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Friday 26th January 2018 Lords Chamber

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

My Lords, I am always sorry to disagree with my noble friend Lady O’Loan but I fear that I cannot support this Bill.

Of course, all of us will agree that proper account should be taken of a person’s conscientious objection to participation in medical treatments which, they believe, offend against the principle of the sanctity of life. But what amounts to participation? How wide should this statutory exemption go? The treatments or non-treatments here under consideration variously relate to the withdrawal of life-sustaining treatment, to fertility treatments and to treatments directed at the termination of pregnancies. It is on the last of these—abortion—that I want to focus principally, in particular on the 2014 unanimous decision of the Supreme Court in the case of Doogan.

In her article in last week’s House magazine, the noble Baroness said of Doogan that the Supreme Court,

“interpreted ‘participation’ in the Abortion Act’s conscience clause to only mean direct performance. All right for surgeons, but this meant that nurses and midwives who conscientiously object to material involvement enabling the procedure were stripped of formal statutory protections”.

A little later in the article, she suggested that her Bill would,

“re-establish legal protections for medical conscientious objectors, and re-affirm the Article 9 rights of healthcare workers”.

I profoundly disagree with that analysis of the Doogan case and I want to make three basic points.

First, there is simply no question of Doogan having in any way changed the law on the rights of conscientious objection in this context, and no question therefore of today’s Bill “re-establishing” or “re-affirming” anything. The Supreme Court was simply construing Section 4(1), the conscience clause, in the Abortion Act 1967 on the ordinary principles of construction, declining to give it either a particularly wide or a particularly narrow meaning. On this construction they held that the two practitioners—experienced midwives employed as labour ward co-ordinators—were exempted by the conscience clause from many of the tasks involved in that role, including any medical and nursing care connected with the purpose of undergoing labour and giving birth; but they are not exempted from the managerial and supervisory tasks carried out by ward co-ordinators, such as booking patients into the ward, allocating staff to patients and communicating with other professionals—for example, paging anaesthetists.

The full, careful and compelling judgment of the noble and learned Baroness, Lady Hale, considered how the conscience clause applies to each of an agreed list of 13 specified tasks, which are all set out in the judgment. The Library Note is good but it is not the same as reading the judgment. This Bill is designed to overturn that judgment—see the end of Clause 1(2). Parliament is entitled to change the law to widen considerably, as this would, the definition of and approach to participation—but change it would be, not a restoration of Parliament’s original decision.

The second point arising from Doogan concerns Article 9 of the Human Rights Convention, which also was dealt with by the Supreme Court, as was the Equality Act 2010, with regard to discrimination on the grounds of religion or belief. On these principles the court recognised an employer’s duty to make reasonable adjustments to the requirements of a job to cater to religious beliefs. However, it pointed out that the extent of the duty is context specific. It added that this would, to some extent at least, depend on issues of practicability. The court said it would be much better to resolve those in employment tribunal proceedings in the context of a particular case than by an overall declaration of the law in either a judicial review or, as I would suggest, in the present Bill.

The third point is this. The Royal College of Midwives and the British Pregnancy Advisory Service both intervened in the Supreme Court proceedings and argued against the petitioners that to give a broad scope to the right of conscientious objection would put at risk the provision of a safe and accessible abortion service and, furthermore, might encourage other employers to adopt a policy of refusing to employ anyone who has any conscientious objection to abortion. This would reduce the job opportunities available to highly skilled and experienced midwives, perhaps with less extensive objections than these particular petitioners. In short, the Bill takes altogether too absolute and extreme a position and it would be unwise to adopt it.

I add, finally, this. To invoke in support of this Bill, as the noble Baroness did in her House magazine article and has again done today, the appalling treatment of conscientious objectors who resisted fighting in the First World War, is over the top. Rather like the Bill itself, it lacks the balanced approach that these present issues deserve. I am against this Bill.