Conscientious Objection (Medical Activities) Bill [HL]

Lord Cashman Excerpts

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

[Viscount Craigavon (CB)]

My Lords, I spoke at Second Reading against this Bill, very much in support of the result of the judgment of the noble and learned Baroness, Lady Hale. From what she says towards the end of her judgment, we are not tied to the literal meaning of “hands on”. I also refer to the article on this Bill in the House magazine by the noble Baroness, Lady O’Loan, in the week of the Second Reading, where she employed the apparently simple phrase the “taking of human life”. In terms of realising that we all do not share our definitions of the same starting point and end point of life, I believe that in this field we do not all have the same premises to anchor our consciences. To the extent that this Bill is built upon a particular version of what is meant by “human life”, we are bound to end up with differing conclusions and disagreements.

As has been made clear by the noble and learned Baroness, Lady Hale, at the end she enlarged on her “hands on” phrase with her examination and analysis of the 13 tasks of the petitioners’ role. I believe that is the best definition of the phrase that we need, which has been very fully covered by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He, like me, regards that as an anchor for interpreting the current law.

To go back to a much earlier part of the noble and learned Baroness’s judgment, to paragraph 11, she went back in time to help to show how the law had arrived at the present situation, and how “participation” had come to be defined. The noble and learned Lord, Lord Brown, gave details of the case that I was going to mention—the 1989 case, in the House of Lords. The noble and learned Baroness interestingly said that it was,

“a case which all parties accept was rightly decided”,

the “all parties” being the parties before her in that case.

I shall not give the details of the Janaway occupation, which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave, but it was decided then that participating meant actually taking part in the process of terminating the pregnancy. The noble and learned Baroness, Lady Hale, added that it did not have the extended meaning given to participation in the criminal law, as the noble and learned Lord, Lord Brown, again enlarged on. So that submission failed and, apparently, all parties to the present case agreed it was rightly decided, as I said.

I mention all this detail in order to ask whether we are in danger, by this Bill, of having to reverse what was decided in 1989, or even earlier. The Bill is trying to solve very complex problems by the very heavy imposition of a statute law that is quite unsuitable and insensitive for what it is trying to achieve. When we come to Amendment 15 it will be seen how much the weight of this statute law proposal would need to be softened by a more balanced and humane approach. For the moment, I fully support Amendments 1 and 3.

[Lord Cashman (Lab)]

My Lords, I support Amendment 1, in the name of the noble Lord, Lord Steel, and the other amendments in the group. I will restate what I said at Second Reading, so that there is absolutely no doubt. I completely respect conscientious objection—religious and non-religious. I respect and defend the right to freedom of religion and belief, but not the right to impose them upon others who do not share them and, by so doing, diminish the rights and legal choices of others. It is always a joy to refer to the comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whom I absolutely agree. This is an attempt to rewrite the law in the light of the Supreme Court judgment delivered by the noble and learned Baroness, Lady Hale, in the Greater Glasgow Health Board v Doogan.

If the Bill were to become law unamended, we would see conscientious objection so widened beyond the wise judgment of the noble and learned Baroness as to make certain services, such as IVF treatment, end-of-life care and abortions, difficult to access and sustain nationally. We would witness the imposition of belief to curtail the legal choices and options of others. I support these amendments because they would reinforce existing law. As has already been said, conscientious objection is clearly laid out in statute, and has a clear interpretation in law. This is that no person shall be under a duty to participate in a “hands-on” capacity in the termination of pregnancy, except in a clinical emergency. This definition is long established, supported by medical colleges and professional organisations as well as organisations such as the British Pregnancy Advisory Service. There is no convincing, independent, impartial evidence to indicate that it is operating poorly.

Therefore, these amendments seek to retain the existing scope of conscientious objection, which is already in legislation. It is in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1980. It is worth restating that the Abortion Act 1967 says that,

“no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection”,

but provides an exception for termination,

“to save the life or to prevent grave permanent injury to the physical or mental health”,

of the woman. The interpretation of this provision is found in the 2014 Supreme Court judgment in Doogan. That judgment absolutely upholds the concept of “hands on”. The noble and learned Lord, Lord Brown, has already gone into the details of that judgment.

In conclusion, the current law effectively balances rights. Conscientious objection must seek to balance the rights of healthcare professionals to act within their own ethical principles and the rights of patients to access legal medical care. The support of professional bodies and organisations for the principle of conscientious objection makes it clear that healthcare professionals are not expected to take a hands-on role in terminations of pregnancy, IVF or end-of-life care, which I will come on to when we debate later amendments. At the same time, patients must have the ability to exercise their rights to access legal healthcare. Conscientious objection cannot be allowed to undermine the rights of women, and others, to access services.

[Lord Mackay of Clashfern (Con)]

My Lords, I want to speak in very general terms in relation to Amendment 1 by the noble Lord, Lord Steel. As the noble Lord explained, in the Act that he ultimately had the responsibility for leading, it is quite plain that conscientious objection in the area of abortion is recognised and protected. The question really is: what is the extent to which that should be recognised? I should perhaps say that I am an honorary fellow of the Royal College of Obstetricians and Gynaecologists—though, needless to say, I have not sought to put it into practice in any sense.

I have of course been in this area of responsibility for statutory provision, in particular in relation to the Human Fertilisation and Embryology Act 1990. Your Lordships who are old enough to remember those proceedings will also remember that the Government decided that, for most of the issues that were of significance under that Bill, there should be a free vote. The Bill started in the House of Lords. One key question that needed to be decided, in an open vote—not compulsory, not whipped or anything of that sort—was to what extent research on embryos should be allowed. There was general agreement that, at least up to the first 14 days after conception, matters were not such that there was really a human life involved. It was certainly possible to take the view that, from 14 days onwards, a human life was involved and that, as life developed, ultimately there was hope that there would be a fully developed, healthy child. The dispute, which was very lively in this House, was whether research should be allowed on embryos before that happened. Ultimately, the vote was in favour of allowing research on embryos. The Bill started, as I said, in the House of Lords, and I was extremely glad the vote went that way, and with a fairly substantial majority.

However, the Bill of course had to go through the House of Commons—again with a free vote, naturally—and I had to hold my breath as to what might happen when the Bill arrived there. There was a strong lobby against any kind of embryonic research; indeed, I know some people who are still of that point of view. Anyway, it went to the House of Commons and the thing that frightened me very much was that it was agreed by parliamentary counsel that the scope of the Bill allowed debate on abortion. With free votes around, noble Lords can understand my anticipation that matters might have become extremely difficult. The debates turned out much better in their result than I had feared. I did not really know what the attitude in the Commons would be, but I was afraid that they might diverge from that of the House of Lords. Fortunately, on both matters, these votes produced the same result. Therefore, I do not come to this Bill without experience of trying to deal with this matter.

On another aspect of this matter, I had the honour of originally nominating as a judge the noble and learned Baroness, Lady Hale, as she now is. I regard the point of view which I advocated as fully vindicated by what has happened. It has to be said that the Supreme Court interpreted the law that had been laid down by statute. That is the job of the courts, not to make new law where there is a clear statutory law binding the situation. Its judgment is a clear and emphatic interpretation of the law as it has been.

The difficulty for me—I make it clear that it is a difficulty—is the nature of the objection that most people who have conscientious objection have to the activity of abortion. I contacted one of the authorities that have been in touch with us on the Bill and I have the impression that the number of practitioners who have conscientious objection is not huge. There is not too much in the way of statistics to back up one view or the other, but that is the impression I have in trying to understand what the position is. I do not want to take up too much time looking at the other areas where this Bill deals with conscientious objection, but in relation to abortion the conscientious objection is that the abortion operation destroys a human life. If you really believe that and if that is your conscientious objection, it is difficult to be involved in anything which promotes that. You do not want to kill people. That is the sort of point that the noble Lord, Lord Alton, made at Second Reading, to which my noble and learned friend—he is certainly my noble and learned friend—Lord Brown of Eaton-under-Heywood referred. However, that is the difficulty I have: recognising what the real conscientious objection is and giving effect to it.

I understand the arguments. The noble Lord, Lord Cashman, stated very precisely and correctly what freedom of religion and freedom of conscience in this country are. They include respect for the rights and freedoms of others. Therefore, it is difficult to see how this measure can be introduced in the ordinary administration of the National Health Service. If that is your conscientious objection, it extends beyond having a hands-on interest in the matter. I understand completely that if it extends beyond that, it will have an effect on the administration of the National Health Service.

How do you recognise the real objection, not somebody else’s formulation of it, but the people who have this objection? I think I am right in saying that that is basically what they believe. It is very difficult to see why they should be involved in anything that promotes what they object to. I have thought hard about this issue. The words that are used to expand it are difficult and some of them are stretching. I wonder whether the amendment proposed by the noble Lord, Lord Winston, in that connection might deal with that matter. If you have a very broad objection on the basis that I have said, it may be difficult to fit you into the system. There is a balance in this. If the people making the relevant appointments know what your objection is, they can take account of it in determining whether you are suitable to be fitted into the system to do a particular job. There will be jobs that are very close to the killing that they think is happening, and those that are more remote from it. It is difficult to draw that line exactly.

That is why a solution may be Amendment 25, in the name of the noble Lord, Lord Winston, which would mean that when you are seeking a job you would tell people what your conscientious objection is and what it extends to. An objection to that is that it discriminates against people who have a conscientious objection, and I can quite understand that too. But on the other hand, it seems that some way of limiting the interference with the administration is required to be found. That is what this Committee may be able to do. I have thought myself about what amendment I might put down, but I fear that I am not wise enough to have thought exactly about how you would frame it. Therefore I was comforted by the way the noble Lord, Lord Winston, would do it, finding out when you make an appointment whether the person with this kind of objection can be fitted into that appointment. I have not so far thought of anything better than that, and I will be glad in due course to hear what the noble Lord, Lord Winston, has to say about that. I have had considerable experience of his skills in this area from my history of involvement in this matter.

It is for us to do our best to try to accommodate the real conscientious objection that exists here consistently with proper administration for the health service. That has been well expressed by the noble Lord, Lord Cashman, who I think wants to say something.

[Lord Cashman]

I wanted to develop the noble and learned Lord’s theme of recognising the objection then allowing someone else in the chain—in the pool of services—to take that on. However, Clause 1(2) says that:

“For the purposes of subsection (1) … ‘participating in an activity’ includes any supervision, delegation, planning or supporting of staff”,

so that would prohibit the very approach the noble and learned Lord has outlined. In addition, not that I belong to any religious group at all, but Buddhists approach these issues with the concept of right belief, right livelihood.

[Baroness Thornton]

My Lords, to add to that, in the debate at Second Reading, the noble and learned Lord suggested that there need to be amendments to the Bill, but the movers of the Bill have not brought forward any of those amendments to allow us to have that discussion.

--- Later in debate ---

[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.

[Lord Cashman]

Again, I come back to the provisions in Clause 1(2). The noble Lord says that there are enough people within the National Health Service—for quite a few months I was a porter at the old Westminster Hospital—but his argument, I believe, goes that there will be other people who could do it. For that to happen, you need to delegate and pass it on, but according to Clause 1(2),

“‘participating in an activity’ includes … delegation … or supporting of staff in respect of that activity”.

[Lord McColl of Dulwich]

There are 1,200,000 employees in the NHS. Surely there are people who can do the delegation, so there would not be a problem.

[Lord Cashman]

My Lords, perhaps I have not made myself clear. There would be no duty on the person who did not want to be engaged in the process to delegate it onward to somebody else, according to the provisions of Clause 1(2).

[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).

[Baroness O'Loan]

My Lords, delegation and referral are not the same thing and what is provided for in the Bill is a right to conscientiously object to delegation. I beg the pardon of the noble Lord, Lord McColl—I should not have interrupted.