Conscientious Objection (Medical Activities) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

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

[Baroness Thornton]

That is the point, in a way, of the current situation: it allows people to disagree and to not have to participate in hands-on terminations.

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

My Lords, I too support the amendment and the obvious corollary amendments later, which are designed to confine the conscience exemption to hands-on participation, as explained in the Supreme Court decision to which the noble Lord, Lord Steel of Aikwood, referred—the Doogan case, which came from Scotland. As amended in the proposed way, the Bill would precisely give effect to that unanimous decision of the Supreme Court. It was a single, convincing judgment from the noble and learned Baroness, Lady Hale, who is now, of course, the President of that court. That decision is the last and most authoritative word on the true interpretation of Section 4 of the 1967 Act, the conscientious objection clause, which has now stood for half a century.

Although an article by the noble Baroness, Lady O’Loan, in The House magazine published shortly before Second Reading suggested that the Doogan decision had in fact narrowed that statutory exemption and that therefore there should now be a wider interpretation in order to “re-establish” or “reaffirm” what Parliament enacted 50 years ago, that is not so. As I have no doubt the noble and learned Lord, Lord Mackay of Clashfern, would confirm, Doogan, on the law as it currently stands, was correctly decided and what this Bill now seeks to do, therefore, is to persuade Parliament to change the law and to give an altogether wider reach to the previous conscience clause than has hitherto been thought appropriate.

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[Baroness O’Loan (CB)]

I hesitate to interrupt the noble and learned Lord, but will he confirm that abortion is not always lawful? Abortion is lawful only in those situations in which it was decriminalised under the Abortion Act 1967.

[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?

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[Lord Brown of Eaton-under-Heywood]

With respect, I stand precisely with the Supreme Court. I think those 13 tasks were analysed and responded to by the court in precisely the right place. Of course these borderlines are not easy to draw, but the court went to infinite pains to draw them as precisely as possible, consistent with the proper exercise of conscience if you are what was there described as involved in a hands-on participatory role, but not otherwise. It is simply an ever-widening sphere of activity ever further from the actual direct termination if you simply throw the exemption open to anybody on an administrative or managerial basis. I stand with the Supreme Court; it is a decision to which I would happily have subscribed.

What is now sought by this Bill is a significant, if necessarily worryingly imprecise, enlargement of the scope of the conscience clause. I shall add only this. As I observed at Second Reading, two responsible and respected bodies, the Royal College of Midwives and the British Pregnancy Advisory Service intervened in the Supreme Court proceedings in the Doogan case, opposed the petitioners and supported the opposite view. They opposed giving a broader scope to the right of conscientious objection. They suggested that to do so put at risk the provision of a safe and accessible abortion service and could put at risk the employment of those with less extreme conscientious objections than the two petitioners. Be that as it may, it certainly must not be assumed that the existing law risks a diminution of the obviously necessary workforce involved in giving effect to lawful abortion rights.

I concentrated my observations on Clause 1(1)(c), on termination, but in truth they apply similarly across the entire scope of the Bill. I therefore strongly urge the Committee to accept Amendment 1.

[Lord Turnberg (Lab)]

My Lords, I strongly support the amendments in the name of the noble Lord, Lord Steel, and others. I apologise to the Committee for not being here for Second Reading for various reasons. I was almost prevented from coming today, but I managed to struggle here. I have the utmost respect for the noble Baroness, Lady O’Loan, and for the reasons behind her Bill, but when I examined it I was immediately struck by what seems to be a conflict between, on the one hand, putting a patient’s best interests first and, on the other, the doctor’s conscientious objection to providing certain treatments. I should perhaps explain how I came to that concern and why I support these amendments by expressing my interests.

I was in the distant past dean of the faculty of medicine in Manchester—a faculty, incidentally, that included nursing and dentistry as well as medicine—and then president of the Royal College of Physicians. In both roles, I was at pains to instil high standards of care in our students and trainees, but I must say that I was brought up short later when I became president of the Medical Protection Society. In that role, I had to face doctors who had failed their patients in one way or another—quite a shock to the system after what I had been trying to do until then to ensure ethical and moral behaviour, focusing heavily on putting the patient at the centre of everything that we do as doctors.

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[Lord Brennan (Lab)]

The present Bill seeks to introduce a restatement of the law concerning conscientious objection. As far as I am aware, there has been no specific Bill in Parliament with a title such as this, even though it is restricted to medical practice. Conscientious objection springs from conscience—the moral sense of right and wrong—and it is a principle of human rights recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the European Charter of Fundamental Rights. For 70-odd years, we have regarded this as a basic human right, not an excepted privilege from the norm.

The question for the Committee is whether it is appropriate in principle to treat conscientious objection in a narrow test or in a wider test. The Bill advocates a wider test than that which has gone before. However, because it does so and because what went before has been said to be a narrow test, the Committee has to decide what the present principles should be in terms of tests. We are here not to vindicate the judgment of the Supreme Court but to exercise legislative judgment about what is fair and reasonable in applying human rights in our society.

Doogan was specifically about the relationship between Sections 1 and 4 of the Abortion Act 1967. Was the conscientious objection provision in Section 4 consistent in its scope with what was envisaged in Section 1? This Bill puts that aside. It effectively replaces Section 4 of the Abortion Act and, if necessary, on Report that section can be repealed by an amendment to this Bill. So we are not rehearsing history here; we are establishing what is right for the future.

In the judgment of the noble and learned Baroness, Lady Hale, agreed to by the other judges, Doogan expressly declined to look in detail at the Human Rights Act. It was a decision based on the co-extensiveness of parts of the statute. It does not dictate what this House should or should not do.

What should we do? First, Article 9 of the Human Rights Act, which is now part of our legislative framework, applies to our deliberations. Article 9 expressly enacts a freedom of belief, religion and conscience. It is not a sideline addition; it figures in all these declarations. What is meant by conscience?

[Lord Brown of Eaton-under-Heywood]

Does the noble Lord, whom I would be happy to call my noble friend, agree that in the case of Doogan the court looked at the Article 9 point? It dealt with that. Alas, I have given my copy of the law report to Hansard, but I am sure that he is aware of the decision and accepts that the court looked at Article 9.

[Lord Brennan]

I read the Doogan judgment with equal care to my noble and learned friend Lord Brown, but the fact is that here we are considering a test which was not considered in Doogan. It is different wording and a different context of statue. The point that I was making a moment ago was that Article 9 creates a right to exercise conscience.

Article 9.2—I invite your Lordships to listen carefully—says that that right prevails unless it is,

“necessary in a democratic society”,

to introduce limitations for specific reasons, one of which is the protection of the rights of others. I heard nothing in the Second Reading debate to evidence the fact that it is “necessary” to limit this test for conscientious objection. We are dealing with evidence, not policy opinion.

Let us compare the House of Lords exercising its legislative function with the Supreme Court. It specifically declined to decide between wider and narrower tests on the basis of societal interest and the supposed threat of one side or the other, because, it said, it would be speculation. The amendments, in effect, invite us to speculate that, without them, the rights of others would suffer to such an extent that we would have to change the law. That is a very tough hurdle to overcome. If there is no evidence before the House of Lords, and in the debate so far there has not been—

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[The Lord Bishop of Peterborough]

My Lords, I also spoke at Second Reading. I spoke then in fairly general terms about conscience and the importance of conscience. I may be expected now to speak from a specifically religious point of view, but I do not want to do that; I want to speak more broadly again about conscience and human rights, but specifically in the areas of these amendments. I am very grateful for what I have just heard from the noble Lord, Lord Brennan, who I believe puts some of the conscience questions very clearly and helpfully and in a new way for this House to hear. That eloquence is appreciated.

I specifically want to question Amendments 1 and 20. I would not want to question all the amendments that are here, but Amendments 1 and 20 bother me in various ways. Amendment 1 bothers me because this phrase “hands on” is very difficult to grasp hold of. I know that it was part of Doogan. It is there, and we have to take account of it in a serious way. But what does it exactly mean? I will use as an example Amendment 20, which talks about supervision. Supervision can be more or less hands on. It works in different ways. If you are supervising a relatively junior member of staff or someone inexperienced in a particular procedure, supervision may be very active and very proximate. It would be quite hands on—showing somebody how to do something and how to do it well and properly. That sort of supervision surely cannot be excluded. If we allow the conscience opt-out for hands-on reasons, “hands on” is very hard to define.

If we mean literally touching the patient, that would exclude quite a number of things. If we touch the drip that will adjust the rate at which drugs flow, is that hands on? Yes, it almost certainly is. But step back a little bit: if you are passing something to the clinician, is that hands on or not? It gets a little harder to define at every remove from the immediate practitioner. “Hands on” is a difficult phrase to use, and to put it into law in this way would worry me. I would like to have a clear way of defining who the practitioners are—the practitioners in a medical sense.

[Lord Brown of Eaton-under-Heywood]

I thank the right reverend Prelate for giving way. I have never intervened to interrupt somebody from that Bench before, but I just wanted to point out that “hands on” is explored and explained in very full detail. It means 13 different tasks; it is applied and very clearly spelled out. If we amend the Bill to use this phrase, everybody will then look at Doogan—there is about a page of text—and know exactly where they are. I do not know whether the right reverend Prelate had realised that.

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[Lord McColl of Dulwich]

I thank the noble Lord for his intervention. I am not saying that it happens now; I am saying what I found in my experience. They were my friends, and I can give the noble Lord their names and addresses. They were extremely good obstetricians practising in Australasia.

It seems to me an important part of the British liberal constitutional tradition that we place a lot of emphasis on freedom. This freedom has many aspects, but central to it is the opportunity to work in one’s chosen profession without being required to act in a way that violates one’s own identity. Ours is not a constitutional tradition in which we use the law to compel people to decide between acting against their deepest moral convictions and losing their livelihood. The hounding of people out of their jobs on this basis is deeply illiberal. Although our constitutional tradition is closely associated with liberty, there are moments in our history when we have failed in this regard. I fear that historians looking back on this set of amendments in a hundred years’ time might recoil from them and wonder how on earth we came so close to stepping away from our historic British commitment to liberty.

I am of course aware that beneath these amendments rests what some would purport to be a respectable argument. It goes something like this: women have a right to have an abortion. People who conscientiously object effectively have the temerity to suggest that their rights as a service provider are more important than the rights of the service user. In this context, we need to rein in our conscientious objection so that it applies only to the doing of the act, not to facilitating it. This logic is deeply flawed for two reasons. First, workers have rights and consumers have rights too.

[Lord Brown of Eaton-under-Heywood]

Does the noble Lord accept that the Doogan case correctly decided and accurately states the law as it has been for the last 50 years under the 1967 Act and that these amendments do no more and no less than state the position as it is now authoritatively decided by the Supreme Court in Doogan?

[Lord McColl of Dulwich]

Yes, I accept that entirely, but we do not necessarily have to abide by that decision. If people feel strongly that it was the wrong decision, they have the right to come to Parliament to produce legislation and try to get it through to change that. That is the right of Parliament. Parliament decides, not the courts. The courts have to interpret what Parliament has said. Sometimes Parliament rushes legislation through so quickly that there are loopholes and problems that need to be corrected. It is not the job of the courts to produce the law.