Abortion

Lord Wallace of Tankerness Excerpts

Thursday 10th October 2013 Lords Chamber

[Baroness Knight of Collingtree]

To ask Her Majesty’s Government what steps they intend to take to ensure that medical professionals offering to perform abortions on the grounds of gender are prosecuted.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, where it is suspected that abortions are being authorised in circumstances which do not comply with the Abortion Act 1967 and the matter is referred to the police, a full investigation will be carried out. The Crown Prosecution Service will review any cases referred to it by the police in accordance with the two-stage test set out in The Code for Crown Prosecutors. Where there is sufficient evidence for a realistic prospect of conviction and it is in the public interest, such cases will be prosecuted.

[Baroness Knight of Collingtree (Con)]

My Lords, is it not the case that, whatever else can be denied, secondary reasons may come into the decision? However, when the main reason for the terminations about which I am questioning the Government is that the coming child is a female, it seems to me as a human being and a female, as it does to millions of others, that that cannot possibly be right. Does my noble and learned friend accept that those of us who took part in the debates on the Abortion Bill in 1967 did not dream for one moment that it was necessary to put down an amendment to protect girl babies? Had we done so, I do not think that the Bill could ever possibly have been passed. Finally, is it not extremely dangerous that the law of the land should allow killing on gender grounds at any stage?

[Lord Wallace of Tankerness]

My Lords, I know of the long-standing interest that my noble friend has had in this issue, going back, as she indicated, to the passage of the initial legislation. Given the reporting, people might well think that this case was about medical practitioners offering abortion on the basis of the gender of the child. In those circumstances, it would seem incomprehensible that the full force of the criminal law was not being brought to bear on a practice which most of us would consider abhorrent. However, if one reads the full note provided by the Director of Public Prosecutions earlier this week, which I will make available in the Library, one will see that on the facts of the case it would not have been possible to prove that either doctor authorised an abortion on gender-specific grounds alone. It is a far more complex case than that. Indeed, the criteria used were those set out in Section 1 of the Abortion Act 1967.

[Lord Morris of Aberavon (Lab)]

My Lords, first, there have been differing reports as to whether there was a realistic prospect of prosecution, and I wonder whether the Minister could clarify that again. Secondly, on the public interest point, did the director consult the Attorney-General on this very issue, and what exactly were the public interest points against prosecution in the case which has been very much in the newspapers?

[Lord Wallace of Tankerness]

My Lords, with regard to the first point that the noble and learned Lord raises, the note that the Director of Public Prosecutions has set out indicates that the evidence was not strong and that the prospects of conviction would not have been high but that, on balance, there was just sufficient prosecution to provide a realistic prospect of a conviction. As the noble and learned Lord well knows, there is a second test—the public interest test. The view taken by the Crown Prosecution Service was that the jury would have had no independent yardstick of professional practice by which to assess the facts of the case—hence the need for the greater clarity which is now being sought. On the other question that he asked, the Director of Public Prosecutions did not consult the Attorney-General before the decision was made not to prosecute. My right honourable friend the Attorney-General has obviously had subsequent discussions with the Director of Public Prosecutions in the context of the review and, without in any way wishing to infringe on the independence of the prosecutor, he believes that the decision was taken in a proper and conscientious way.

[Lord Walton of Detchant (CB)]

My Lords, does the noble and learned Lord accept that there are a number of potentially lethal genetically determined diseases which are transmitted by an X-linked recessive mechanism and hence affect only boys? Does he therefore accept that, unless the availability of pre-implantation diagnosis were available, a female carrier of such a potentially lethal gene would be fully entitled to abort an affected male foetus?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I certainly bow to the medical knowledge of the noble Lord—I do not pretend to come anywhere near it. However, there is reference in the BMA’s code of ethics and law regarding this factor, where there may be issues that could relate to gender and a medical condition. Indeed, my understanding is that in the two cases that have given rise to the current controversy, the patient concerned indicated that she had had previous serious difficulties in a female pregnancy due to genetic abnormalities. That is why it was not possible, in the view of the Crown Prosecution Service, to prove that the procedure was conducted purely on the grounds of gender selection.

[The Lord Bishop of Chester]

My Lords, does not this case, and in particular the letter from the Director of Public Prosecutions, taken together with the overall fact that, I believe, nearly a quarter of recognised pregnancies are deliberately ended in the womb, call for a comprehensive review of the operation of the Act in its entirety?

[Lord Wallace of Tankerness]

My Lords, I am certainly cognisant of the strong views that are held about this Act and its operation. One of the clear things emerging from this case is the great need to have clearer guidance for doctors on how to carry out their functions and the tests that are set down in Section 1 of the Abortion Act. I am confident that that will now be addressed. Certainly, the Crown Prosecution Service stands ready to assist in any way to provide that clarity.

[Lord Steel of Aikwood (LD)]

Does my noble friend agree that it is very difficult to see how any prosecution under the Abortion Act could take place if no abortion has taken place? Does he accept that gender selection by abortion is wholly repugnant and that therefore we must hope that the General Medical Council will issue ethical guidance on this important matter as soon as possible?

[Lord Wallace of Tankerness]

My Lords, I entirely agree with my noble friend that gender selection as a ground for abortion is wholly repugnant. It is quite clear that that is the very strong view of Members of your Lordships’ House. While abortions did not take place in this particular case, attempting to commit a criminal offence—that is, doing something that goes further than just preparing to commit it—is a crime in its own right and it is on that basis that the Crown Prosecution Service looked at the facts of this case. I do not know yet when the General Medical Council will come forward with any revised guidance; I have indicated that I think that it is necessary. However, the Chief Medical Officer will be writing again very shortly to all doctors involved in abortion provision, setting out the Department of Health’s views on sex-selection abortions—making it clear that sex-selection abortions are not acceptable—as well as pre-signing of certificate forms and other relevant issues, highlighting the need for doctors to keep up to date with legal provisions in the Act.