Offences Against the Person Act: Section 58

Lord Stewart of Dirleton Excerpts

Thursday 15th June 2023 Lords Chamber

[Baroness Thornton]

To ask His Majesty’s Government what assessment they have made of the recent application of section 58 of the Offences Against the Person Act 1861.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, the Government are committed to ensuring access to safe, regulated abortion for all women in England and Wales on the NHS. It would be inappropriate for me to comment on specific criminal cases, especially those which may—and I understand will—be subject to appeal proceedings, or on prosecution decisions made by the CPS independently of government. Abortion is a contentious issue on which the Government maintain a neutral position. It is, however, open to Parliament to propose changes to the law in this area, which, as a matter of conscience, would normally be subject to a free vote.

[Baroness Thornton (Lab)]

I thank the Minister for that Answer, and I thank the Government for decriminalising abortion in Northern Ireland in 2019 and repealing the effect of Sections 58 and 59 of the Offences Against the Person Act 1861 at that time, which brought Northern Ireland into compliance with our obligations under CEDAW. Like everyone else, I recognise how distressing and troubling the case is which prompted this Question. One of the effects of the changes in Northern Ireland is that since 2019, evidence suggests there has been an increase of 25% in referrals, but many of them from other parts of the United Kingdom, not including Northern Ireland. These are women and girls, particularly those in bad relationships, or young girls, who are unsure of time limits and are anxious about being investigated by the police and prosecuted. Does the Minister agree that this suggests that the issue to be addressed is ensuring a right to abortion advice and lawful treatment?

[Lord Stewart of Dirleton (Con)]

My Lords, the position is that all women have access to safe and legal abortions on the NHS in England and Wales. As I say, it would be inappropriate for me to comment on specific cases. I remind the House that abortion is a matter devolved to Northern Ireland and, indeed, to Scotland.

[Baroness Eaton (Con)]

My Lords, does not my noble and learned friend the Minister agree that, to prevent such tragic offences from occurring in the future, the Government should urgently propose legislation to reinstate the requirement for women to be seen in person at least once before being prescribed abortion pills?

[Lord Stewart of Dirleton (Con)]

My Lords, the current provisions applying in this area were brought in during the Covid pandemic when face-to-face access to medical personnel was restricted. The relevant department keeps the matter under review.

[Baroness Barker (LD)]

My Lords, will Minister confirm that if a woman presents at a hospital and says she has taken abortion pills, there is no legal obligation for any health worker to report her to the police? Given the increasing number of women, including those who have had miscarriages, being reported to the police, will he undertake to work with the royal colleges and the professional bodies as a matter of urgency to review the guidance?

[Lord Stewart of Dirleton (Con)]

I am happy to give an undertaking that the Government will work, as they continue to do, with the relevant professional bodies to which the noble Baroness referred.

[Baroness Blackstone (Lab)]

My Lords, I declare an interest as the chair of the trustees of the Royal College of Obstetricians and Gynaecologists. Healthcare professionals must be able to provide abortion care without the threat of criminal sanctions, which do not apply to any other healthcare professionals. Increasing the role of qualified nurses and midwives is extremely important, as well as removing the chilling effect caused by criminal law intervention that means that many doctors fear getting involved in abortion care due to the specific threat of criminalisation. What are the Government doing to address this?

[Lord Stewart of Dirleton (Con)]

My Lords, the professional body which the noble Baroness chairs will no doubt promulgate correct information to its members as to their standing in law in relation to these complex and sensitive matters. As I said in answer to the previous question, the Government will work with the relevant professional bodies in relation to this.

[Baroness Sugg (Con)]

My Lords, the facts of this case are extremely distressing and highlight the need to continue to work to ensure that women, particularly vulnerable women, can access abortion as early and safely as possible. We have made recent progress in this area, ensuring the introduction of safe-access zones, which was supported by your Lordships in the Public Order Act. I appreciate that their implementation may be complicated, and I am grateful to the Government and civil servants for their work on this, but can my noble and learned friend the Minister tell me when they will be introduced?

[Lord Stewart of Dirleton (Con)]

First, I am grateful to my noble friend for her courtesy in giving me advance notice of the point she wished to raise. It is completely unacceptable that anyone should feel harassed or intimidated. The police and local authorities have powers to restrict harmful protests and we expect them to take action in such cases. I cannot answer her with a specific date, but I can tell her that we are working through the complexities of implementing border zones, and that my right honourable friend the Home Secretary, speaking yesterday to the Home Affairs Select Committee, undertook to write to them to bring them fully up to date on the point raised.

[Baroness Northover (LD)]

My Lords, yesterday the noble Baroness, Lady Deech, questioned the justice in retaining a statute of 1861—before women had the vote—whereby a mother could be sent to prison for an abortion, describing this as

“an outdated and barbaric method of punishment”,

and there was widespread agreement in this House. Can the Minister go back and consider both his reply and that of the noble and learned Lord, Lord Bellamy, who said yesterday:

“This is a contentious issue and the Government maintain a neutral position”.—[Official Report, 14/6/23; col. 1992.]


Does this not lack courage and is this approach itself not seriously outdated, failing to protect women and girls? In our development programme, we have led the way; why are we being so timid in the United Kingdom?

[Lord Stewart of Dirleton (Con)]

My Lords, the criminal offences in the main exist to address the harm caused by those who force or coerce someone into terminating their pregnancy. Cases of this nature brought to the court are extremely rare, and that is reflected in the absence of specific sentencing guidelines relating to this. The rarity of prosecutions reflects the CPS’s approach, independent of government, to bringing cases where they determine that there will, or will not, be a public interest.

[Baroness Gale (Lab)]

My Lords, does the Minister agree that access to abortion advice and lawful treatment should be a right given to women and girls so that they understand that they are entitled to help, advice and support and can confidently seek that help promptly? More information should be available so that situations that happened during Covid lockdown, when women and girls did not have access to face-to-face consultations with their GP, and instances such as happened recently, never happen again. Women should not be jailed and children should not be deprived of their mother. We are in 2023 and we are using a law of 1861. Can he do all he can to try to amend this law?

[Lord Stewart of Dirleton (Con)]

The noble Baroness speaks with compassion on the effects of this. I have to reiterate just a couple of points that I made. The decision to prosecute was one made independently of government. The matter was considered by the sentencing judge. As to the promulgation of advice via the NHS, I would be happy to relay the noble Baroness’s concerns to the Minister in the relevant department.

[Lord Cormack (Con)]

My Lords, my noble and learned friend is entirely and scrupulously right in refusing to comment on the specific case that has occasioned the Question. However, does this not bring into focus the whole issue of custodial and non-custodial sentences? Should we not look at this extremely carefully? Our prisons are too full; sending people to prison obviously often does far more harm than good. I really believe that we should look at things such as community restorative justice in cases like this. Would he care to consider that?

[Lord Stewart of Dirleton (Con)]

My Lords, I agree wholeheartedly with the views expressed by my noble friend. The sentencing process is, of course, one independent of government. The matter is, I understand, is to be brought before the Court of Appeal. In addition to that, there is the possibility that the Criminal Cases Review Commission will take an interest. Ultimately, there is the possibility that the royal prerogative of mercy could be exercised in favour of the woman concerned.