Offences against the Person Act 1861 (Sentencing Guidelines)

Maria Miller Excerpts

1st reading
Wednesday 19th July 2023 Commons Chamber

[Dame Maria Miller (Basingstoke) (Con)]

I beg to move,

That leave be given to bring in a Bill to require the Sentencing Council to issue sentencing guidelines in respect of sections 58 and 59 of the Offences against the Person Act 1861; and for connected purposes.

I will start by saying what the Bill is not doing, to avoid any misunderstandings. It is not removing sections 58 and 59 of the Offences Against the Person Act 1861; it is not changing any of the regulations on abortion set out in the Abortion Act 1967 that allows, in strict and limited circumstances, abortions to take place, including time limits for those procedures.

I make absolutely no secret of wanting to see far more wide-reaching reform than the Bill delivers, taking women seeking abortion away from the sanctions of criminal law, and I believe a great many Members of Parliament agree with me on that too. I had drawn up that Bill and planned to bring it forward today, but that was not possible, despite widespread cross-party support, so that has to wait, yet again.

So what would this Bill do? This Bill relates solely to sentencing under the Offences against the Persons Act 1861, the criminal law underpinning abortion in the UK. The effect of the Bill would be to ensure that there is sentencing guidance in place for judges to use in court. Sentencing guidance from the Sentencing Council is entirely proper for Parliament to legislate on. While I would prefer complete reform, I also believe that, as parliamentarians, we have a duty to scrutinise how the current law is working and to make the changes that are possible when problems emerge. When it comes to abortion, we should not be surprised that having a 160-year-old law underpinning a medical procedure causes problems for the courts. The law has to evolve to better reflect modern-day Britain. It should be compassionate and applied with an understanding of the medical context of today.

At the moment, there is no such sentencing guidance in place, and, with little case law to draw on, we leave judges bearing the brunt of trying to interpret legislation agreed in this place more than 150 years ago, when the world of women’s health was a very different place. Sentencing guidance helps to ensure consistency in how the law is applied today. The council’s founding legislation, the Coroners and Justice Act 2009, is clear that the Sentencing Council must publicly consult on new guidance to ensure that professional and public views are properly taken into account and, where necessary, then adjusted.

We saw in the recent case of Carla Foster that the judge specifically cited the lack of guidance in his sentencing remarks. If sentencing guidance had been in place, perhaps Ms Foster would not have had to endure weeks of prison, away from her children, waiting for the Court of Appeal to decide yesterday that her initial sentence should be halved and that it should be a suspended sentence, meaning that she should not be in prison at all. Dame Victoria Sharp, one of the Appeal Court judges, called in her own words for “compassion not punishment”. If sentencing guidance had been in place for the judge at the initial sentencing, it is possible that this heartbreaking situation could have been avoided altogether.

The measures in the Bill already enjoy widespread support. The shadow Leader of the House, whom I can see in her place and whom I informed that I would be referring to her, called for exactly this change just a few weeks ago and has been clear about the official Opposition’s support for sentencing guidelines. Following the sentencing of Carla Foster, she said:

“In the wake of this awful case, I hope that the Government will be in a position to take action, at least on sentencing guidelines. This is too important an issue to play politics on. Labour is willing to work with the Government.”—[Official Report, 15 June 2023; Vol. 734, c. 438.]

The Government have not brought forward such measures, because—they are absolutely clear on this—any changes on the law relating to abortion must be above party politics and come from the Back Benches. That is why I am standing here today, to get action—such as the action that the hon. Member for Bristol West (Thangam Debbonaire) talked about in her remarks—for women up and down the country who are fearful when they read of the plight of Carla Foster; or who need to consult a doctor about abortion and may have been absolutely unaware of the sentencing guidance gap, or, indeed, of the criminal law that is in place. I hope that the hon. Lady’s support for sentencing guidance extends to my Bill, though of course I understand that it is an issue of conscience.

I am extremely grateful to those right hon. and hon. Members, from across the House, who have indicated their support for the Bill, including the Father of the House. Some have their own experience to draw on, while others have seen at first hand, through their constituents, how the current situation does not work. The hon. Member for Walthamstow (Stella Creasy), who is in her place, and others have shown how distinct and deliberate steps are important in changing attitudes on abortion, and I applaud the work that she does. I believe that this Bill is another distinct step forward from where we are today and would see women given better certainty, while we wait for fuller reform to achieve agreement in the House.

I am also immensely grateful to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Mother of the House, for her full support and expert guidance in how to take forward this Bill with the Sentencing Council. I hope that the Sentencing Council agrees to meet us to consider a way forward with the responsible Minister, who I think may be the Minister sitting on the Front Bench.

It is worth dwelling on the context of the 1861 Act for a moment. The reason that law was passed in the first place was to protect women—women who were far more likely to die as a result of a barbaric abortion than during childbirth—at a time when women were forbidden by law from even taking part in that debate in Parliament. Today, things could not be more different: women can debate, and regularly do debate, women’s health issues. What is even more important is that we now live in a time when abortion is far less dangerous for women than giving birth, so there has been a complete change.

The Bill matters because the fair and equal treatment of women matters. Abortion is the only medical procedure in the UK subject to the criminal law. Women who find themselves having an abortion outside the law, for whatever reason, deserve our “compassion not punishment”—to quote the words of that Appeal Court judge—and it is difficult to understand how society would ever be best served by placing a woman in prison after she had experienced a pregnancy loss for whatever reason. She deserves our support and compassion, not imprisonment. But these are matters for the Sentencing Council to consult and decide on based on expert knowledge.

The Bill I present to Parliament today is not a panacea for the significant differences between the law and medical opinion on abortion, and it does not pretend to be. But the Bill does demonstrate to those whom we expect to interpret the law that we understand that we make it very difficult for them. The Bill is a small step in the right direction to get a better balance between public opinion, medical opinion and the law. I hope that the House will unite to agree that it should proceed.

Our job as parliamentarians is to find solutions, not to define problems. It is to find common ground and to work together to establish consensus where it may not be obvious and easy to find. In the words of the prayers with which we start every session:

“laying aside all private interests and prejudices keep in mind”

our responsibility to

“seek to improve the condition of all mankind”—

and indeed of all womankind, too. Thank you.