Conscientious Objection (Medical Activities) Bill [HL]

Lord McColl of Dulwich Excerpts

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

[Lord McColl of Dulwich (Con)]

My Lords, I am pleased to speak in support of the Bill. The issue that it raises is simple: if someone objects to abortion or assisted dying on grounds of conscience, how far should they be entitled to opt out? The issue is simple but the solution is difficult.

The Supreme Court held that, as a matter of construction, the conscience clause provisions of the Abortion Act 1967 should be interpreted narrowly so that Mary Doogan was not entitled to refuse to help facilitate abortions by organising other nurses for the purpose of providing abortions. The aim of this Bill is to change the wording so that freedom of conscience can be invoked as a ground for refusing to do acts which are less directly connected to the abortion than is presently the case. I think that that is a good thing and I shall endeavour to explain why.

The first reason is that a significant number of dedicated healthcare professionals have profound moral objections to both abortion and assisted suicide. The role of the state is not to sit in judgment on those moral objections: it is not the state’s role to coerce people into acting against their conscience. Therefore, it is a good and reasonable thing that the state should make the conscientious objection provision sufficiently broad to excuse acts which genuinely offend the conscience. The state should err on the side of respecting conscience, rather than placing valuable medical and nursing staff in a position where they have to choose between their vocation and their conscience.

I had a number of friends who, when applying for consultant posts in obstetrics, would be asked, “Are you prepared to take your share of the abortions?”. If they said yes, they were considered for the appointment. If, on the other hand, they said, “Yes, I’m prepared to take my share of the abortions within the 1967 Act”, they were not considered for the consultant post and many of them had to emigrate. They were very good clinicians and it was a great loss.

The second reason I support the Bill is that there is no evidence whatever that, if the Bill is passed, it will detrimentally affect anyone seeking an abortion.

The third reason I support it is that it is both unwise and unnecessary to force medics and nurses to act against their conscience in any sphere whatever. If we train them to do that in one sphere of work, we have only ourselves to blame if they do it in other aspects of their work. For those reasons, I support the Bill.

Conscientious Objection (Medical Activities) Bill [HL]

Lord McColl of Dulwich Excerpts

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

[The Lord Bishop of Peterborough]

I am aware of what the noble Baroness is saying. I am using the example of supervision because it shows some of the complications in the phrase “hands on”. It is clear that supervision can mean a whole variety of different things—more remote or more proximate, so it is a difficult issue. I would strongly oppose Amendment 20 because in practice the word “supervision”, in practice, can mean helping the practitioner to do the job. It can mean ensuring that the job is done. It can mean without being strictly hands on but enabling the person to do something. That clearly will go against conscience in the way that the noble Lord, Lord Brennan, and others have made clear. The definition is difficult because “supervision” can mean different things. For me it is a matter of great concern about what is before us.

[Lord McColl of Dulwich (Con)]

My Lords, the thing that all the amendments in this group hold in common is the belief that conscientious objection should be provided only in relation to hands-on activity; that is, of actually performing the abortion. They suggest that other facilitating activities on which the performance of an abortion depend should not be included within the scope of the conscientious objection.

If we are serious about conscientious objection, this simply does not make sense. If we recognise that different people have different views about the morality of abortion and that while some of us regard abortion as perfectly moral and acceptable, others find it difficult to distinguish it morally from the taking of life of someone who has been born, we have to accept that the moral difficulty lies not just in the act of the abortion but also in the act of facilitating it, as has been mentioned. It seems to me that when we are clear that something is wrong, we are also clear that facilitating that thing, whatever it may be, is also wrong. We understand that if anyone who facilitates becomes complicit in the act in question, a moral responsibility is thus engaged. In this context, these amendments simply do not make sense.

If we were to accept the logic on which they rest, we would have to expunge from our law any recognition that someone who helps to facilitate an illegal act has any kind of culpability. Culpability should rest only with the person who does the act. Mindful of these considerations, it is difficult to see these amendments as anything other than an attempt to undermine and weaken conscientious objection. If someone genuinely believes that an act is wrong, the provision of a legal assurance that they do not have to do the act but only facilitate it makes the profession in question no longer open to them. It is as if they have been required to actually carry out the act itself. Anyone in this situation with a sense of integrity and wholeness that requires consistency across their moral life would have to leave the profession in that context.

I have friends who, when they went up for a consultant post in obstetrics, were asked the question, “Are you prepared to take your share of abortions?” If they said yes they were considered for the appointment. If, on the other hand, they said, “Yes, I am quite prepared to take my share of the abortions within the Act of 1967”, they were not considered for the appointment and they had to emigrate. I have many friends who had to do that.

[Lord Winston]

The Committee deserves clarity on that statement, if the noble Lord, Lord McColl, does not mind. I have huge respect for the amazing work that the noble Lord has done in surgery over very many years, but I have been in obstetric and gynaecological practice as a consultant for quite a long time and I have been on many interview bodies looking at staff who will be working in obstetrics and gynaecology. Sadly, I was not here for Second Reading, but I read the noble Lord’s Second Reading speech where he made that point very clearly. I do not recognise that happening in the services in which I have worked. In fact, that discrimination is exceptionally uncommon. I am very surprised that he said he found that a number of people have needed to go overseas. That seems rather an unusual situation. I would like some clarity on that. It is an important point because it affects the amendment I have tabled for later in the discussion.

[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.

[Baroness Tonge (Non-Afl)]

Will the noble Lord define what he means by “facilitate”? The amendment refers to someone “participating in a hands-on capacity”—that is the person who is actually going to do the abortion. The secretary who makes the appointment facilitates the abortion.

[Lord McColl of Dulwich]

Facilitate means a great number of different things, but the 1967 Act did provide—

[Baroness Tonge]

My point is that if a secretary in a hospital or a clerk who was involved in this service had a conscientious objection to abortion, would he or she see it as facilitating the abortion? Is that what the noble Lord is referring to? Because it applies to everybody.

[Lord McColl of Dulwich]

If she has a conscientious objection to it, then she should not be obliged to do it, because the 1967 Act specifically said that people did not need to do it. Acts of Parliament should not force people into doing things against their conscience—that is not the function of Parliament.

--- Later in debate ---

[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.

[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.

[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.

[Lord McColl of Dulwich]

I am delighted to be interrupted. A debate is about toing and froing, and there is not enough of that.

If we use the law to impose an approach that is intolerant of conscience, forcing some people out of the medical profession and, effectively, dissuading others from joining it—that is an important point—many people will suffer as a result. We are already short in recruiting new doctors and these amendments are the last thing that we need. In the medical profession, the greater our overall capacity, the greater the capacity to provide abortions and, as we are trying to say, there are plenty of people without conscientious objections.

On the suggestion that we should adopt the amendments because they reflect what the noble and learned Baroness, Lady Hale, suggested in the Doogan judgment, we have mentioned, first, that we do not have to be constrained by her judgment; we are at liberty to come back and change the law, if it is the will of Parliament. Secondly, in the noble and learned Baroness’s judgment, she recognised that there are two potential ways of interpreting the intention of Parliament with respect to conscientious objection: a broad way and a narrow way. She said that,

“a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to ‘actually taking part’, that is actually performing the tasks involved in the course of treatment”.

She concluded that,

“the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed”.

We are trying to change the law so that it is quite clear that that is not so, and we have every right so to do.

This Bill is timely and it is a liberal measure that should get the support that it needs. By contrast, the amendments are deeply mistaken, for three reasons. First, they will hurt the service providers by imposing an ugly uniformity that will result in many more cases of people such as Mary Doogan losing their job. Does the noble Lord, Lord Steel, whose Bill it was in 1967, agree that the decision in Glasgow to sack Mary Doogan because of her conscientious objection to being involved in an abortion was the right decision? She was a wonderful midwife and had done more than 5,000 deliveries. She was a very valuable member of the team. Does the noble Lord think that was the right decision?

[Baroness Tonge]

My Lords, I was unable to speak at Second Reading and I apologise for that—I was at a family funeral, as it happens—but I feel strongly about this issue. I qualified in 1964. I was a medical student and a junior hospital doctor in the days before the Abortion Act of the noble Lord, Lord Steel. I remember well the gynae wards and the women who had had unsafe, septic abortions. Some of them died. In the early 1970s, I was working in Birmingham in general practice and family planning, when the professor of obstetrics and gynaecology refused to have anything to do with the new Abortion Act. The noble Lord, Lord Winston, might know more about management in those days than I do but, because the professor was in charge of what his department provided, he absolutely forbade abortion to take place in that department. Perhaps the noble Lord remembers him.