Conscientious Objection (Medical Activities) Bill [HL]

Lord Winston Excerpts

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

[Baroness Thornton (Lab)]

My Lords, my name is added to this group of amendments. I intend to speak very briefly to say that the purpose of the amendments tabled by the noble Lord, Lord Steel, is to redefine in the Bill what constitutes participation in an activity to bring it into line with the existing law. This would mean that healthcare professionals could opt out of hands-on participation, such as performing a surgical abortion or dispensing abortion pills, but not out of things such as organising a staff rota where some of the staff on the rota might be taking part in abortion services. This is because we support the right of healthcare professionals to opt out of participating in a hands-on capacity. The noble Lord explained the history, roots and the discussions that led to this and why it has been maintained for so many years as the acceptable and sensible way forward. It is not just my view or that of these Benches. It is also supported by medical bodies such as the British Medical Association, the Royal College of Obstetricians and Gynaecologists and many other organisations, including the British Pregnancy Advisory Service. I will leave my remarks at that while we have this debate.

[Lord Winston (Lab)]

Does my noble friend not agree that there might be some fellows of the Royal College of Obstetricians and Gynaecologists who do not agree with the briefing material that the council has sent to the House of Lords?

[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.

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[Lord Alton of Liverpool]

Does the noble and learned Lord therefore think it is a good situation for us to be in that, for instance, people who have religious views or who are atheists and are opposed to taking the life of an unborn child in the womb are by and large pretty well excluded now from gynaecology and obstetrics? The noble Lord, Lord Winston, says from a sedentary position that that is not true. If he can give an example to me of, for instance, people who hold deeply committed Christian evangelical views or who are committed Roman Catholics or, for instance, Orthodox Jews who would support, for instance, the taking of life up to birth, as the law now allows since 1990 in the case of Down’s syndrome, I would be surprised, but I would be interested to hear those names.

[Lord Winston]

I would like to correct that impression, if I may. I hope it might be useful if I might still be able to speak in due course about the amendments that I tabled, but not at this stage.

I cite as an example my own unit, and this situation was not because I was the head of it. There were a number of people with very orthodox religious views from three or four different faiths, including Jews and Catholics, some of whom were involved with in vitro fertilisation at different levels. We could accommodate those because we had the staff to do so. I am not convinced that, in the field of obstetrics and gynaecology, the health service has been inimical to people who are orthodox Catholics.

[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?

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[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.

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[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.

[Lord Winston]

As the noble Baroness has mentioned my name, perhaps I might add that there was a case of a president of the Royal College of Obstetricians and Gynaecologists who was absolutely opposed to abortion, so this is not unknown in the profession.

[Baroness Tonge]

The point that I wanted to make is that, as a consequence, in whichever way we now plan, purchase and provide services for patients, if someone in management—the chief executive—is against abortion, could that mean that they would conscientiously object and refuse to have abortion as part of the service in that area? It is extremely complicated.

If in this country abortion is legal, under the parameters set by the Act, then it should be implemented equally for all women in this country. It should not be at the whim of individual practitioners, whether they be doctors, managers or secretaries—whoever is going to affect the service delivery to the women of this country if they are allowed to conscientiously object. If they do so, they should not join the service in the first place. No one is obliging them to. There are plenty of jobs around that do not involve abortion, so why do they not do them?

I have a bit of experience. At one time, I was head of women’s services for a health authority in London, during which I was in charge of family planning and liaising with GPs—and, in fact, of setting up an abortion service because the hospital doctors were finding it difficult to cope. We franchised it out to the BPAS, as I think it was at the time. That was one of the first times that that had happened. It was very well and efficiently run but when I think of the number of people involved in setting up that service, both when it was in the health service and when we franchised it out, if everyone involved had had the ability to conscientiously object, that would have completely upset the service. I do not know how we would have got it going.

To extend it a little more, if you have a certain number of people exercising a conscientious objection in one field, that may put extra strain on people in other fields who are not normally employed in that service to fill in and to do that job for them. You would be setting up a situation that could disrupt all the services in a hospital, not just the obstetric and gynae services.

Finally, I say to the people who oppose abortion that I fully understand their reasons. I understand the religious beliefs behind it in some cases. However, whether a country provides safe abortion or not, the same number of abortions take place because, if a woman cannot access abortion, like the women in Birmingham in the early 1970s, they will go to illegal practitioners, they will endanger their life and often they will die. When people oppose abortion, they are actually providing a route for some women to lose their lives. That is a terrible thing to have to say, but it is true.

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[Baroness Finlay of Llandaff]

I am sorry, but I have to intervene again. I should have declared my interest as palliative care lead for Wales, as vice-president of Hospice UK and of Marie Curie, and as having set up a lot of hospices. Symptom control is not life-prolonging treatment; it is about keeping people comfortable during the time they are dying of their disease. It may run in parallel with other treatments and it may be provided when other treatments are withdrawn, but it certainly does not prolong life per se. There is evidence that if you leave people in pain, it is a powerful drive to respiration. When you make people comfortable and relieve their pain, they can let go of life and die, but it is not the morphine that has killed them, it is the disease. Symptom control does not force people to stay alive.

[Lord Winston]

My Lords, sometimes groupings in our debates make things difficult for people who are trying to table amendments, and I have been trying hard to be relevant to the amendments but at several points in the debate over the past hour and three-quarters, reference has been made to things in the amendments which I tried to table.

I want to say one thing at the start. There are two things that I find very difficult in this House. First, there is the issue of sometimes filibusters occurring during debate—and I am very pleased that there has not been a filibuster this afternoon although, sadly, there was this morning. It is very unfortunate. I am well aware that we have just seen Old Father Time come into the Chamber; he has not actually got a scythe yet, but I suspect that he is about to cut us short at the appointed time.

That is one thing. The other issue is the question of declaration of interest. It is very difficult, but I make it clear that in these ethical and moral debates, of which this House is justifiably very proud, we do not always declare where we might actually have a conflict of interest. For example, I make it very clear that I am declaring a conflict of interest as an orthodox Jew who will have certain limitations on how I would do termination of pregnancy. But I respect absolutely the autonomy of the patient in front of me, and one amendment that I have put down later on would argue that in fact you have a duty to ensure the autonomy of that patient, as your autonomy, is equally respected, and to find some solution. In practice, that means consulting colleagues and trying to work that out.

I have a regard for the noble Baroness, Lady O’Loan, and her Bill, but I think that we should be prepared to explain where we are coming from during these debates, and so often we do not. I remember some time a few years ago on assisted dying that I spoke passionately against a particular amendment which would have allowed some assisted dying. At the end of that debate, after I had spoken, people on my Benches said, “Why aren’t you coming through and voting with us?”. I said that I had said what I had to say but that I felt, as an orthodox Jew who would not assist an assisted dying, that I did not think that I could go through the voting Lobby. That sounds to me the appropriate way.

Having said all that, I do not want to hold up this debate—but I fear that we are getting very close to the end. I want to make a few points on points that have been raised so far. My Amendment 2 would allow the recognition that, most of the time, in spite of what the noble Lord, Lord McColl of Dulwich, said, it is not the medical practitioners in my experience who have a conscientious objection but a whole range of other people—the operating department assistants and the porters, for example. Again and again, I have seen porters in hospitals where I have worked who have felt that they would not want to wheel a trolley into the room where a patient is going to have a termination of pregnancy. Sometimes one has been able to accommodate that. However, as we all know, the NHS is under massive strain with resources, and that becomes difficult.

I believe absolutely, and in all conscience, that the amendments that I have tabled would make this Bill workable; I think that that is possible. There is a way through this. The noble and learned Lord, Lord Mackay of Clashfern, kindly referred to one of the amendments that I tabled, Amendment 25. One point of that amendment is that it shows that the Bill covers not just obstetrics, gynaecology and termination of life but pretty well every medical area that we have specialities in, where we really have to reflect on these issues of conscience. That has been spelled out in that amendment—although it is an open question as to whether it is well written or not—to make it very clear that this affects the health service to a very great extent, and this is an issue for this Bill.

At the moment, I think that the only other fellow of the Royal College of Obstetricians in the Chamber is the noble and learned Lord, Lord Mackay. In the debate in 1989, his speech introducing the Human Fertilisation and Embryology Bill was the most amazing speech. In 20 minutes, he did what nobody has been able to do in the journal Nature, in my profession. It was a brilliant exposition of where we are, and I am hoping that I might persuade him, as one of the two fellows in this Chamber, to set up in private practice when this is over, doing in vitro fertilisation.

The difficulty has become the definition of what conscientious objection involves, as my noble friend Lord Brennan, said, and that is something that we should look at. We cannot simply have the narrow view of a few professionals who would be affected by this measure. It has to cover the whole service, as it does, for example, with in vitro fertilisation.

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I want to make one final point. The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Winston, said that they are fellows of the Royal College of Obstetricians and Gynaecologists—and so am I.

[Lord Winston]

The noble Lord can join our private practice if he wishes.

[Lord Steel of Aikwood]

Perhaps we should get together outside of this House and work out a framework that is workable. I do not believe that this Bill does it. I was right to put forward this amendment. It has been a first-class debate, but I now beg leave to withdraw the amendment.