Abortion Act

Robert Flello Excerpts

Wednesday 9th October 2013 Westminster Hall

[Mr Burrowes]

My hon. Friend makes a good point. A wider issue is transparency and honesty around definitions and assessments. It is an issue because 99.6% of the 98% who relied on the grounds of mental health risk are those that this applies to. The investigation and the reasoning have highlighted the lack of guidance and how it is disparate across the country. We need further information. We are in the unknowns, because there is a lack of data and proper information. We do not know enough about the assessments in relation to mental health grounds. Perhaps the doctor is not even present to make the assessment.

[Robert Flello (Stoke-on-Trent South) (Lab)]

I am grateful to the hon. Gentleman—I shall call him my hon. Friend this afternoon—for securing this debate. Following on from the previous intervention—I think he is starting to allude to it—if the doctors concerned are not even meeting the woman who is presenting and requiring an abortion, how are they to judge whether the barrier is met?

[Mr Burrowes]

My hon. Friend—he is very much my hon. Friend in these matters—is right. In the case that brought about the investigation, both GPs failed to carry out an in-depth mental or physical assessment of the patient. One GP even claimed that he thought the patient was lying. Instead of taking it a stage further and delving further, they agreed to authorise the abortion. In one of the cases that have been reported, one of the GPs brazenly said that it was “like female infanticide”.

We need to get to the bottom of what the law is for, and that is the focus of this debate. We will then draw attention to the issue of appropriate guidance. So what is the law on gender selection abortion? My hon. Friend the Member for Broxtowe (Anna Soubry), the outgoing public health Minister—I welcome the new Minister, the Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), who is here—wrote to me on 3 October; it was one of her last letters as public health Minister. She wrote to say unequivocally, and it has been repeated by the Secretary of State for Health, that abortion on the grounds of gender alone is unacceptable and illegal. This has not changed. I therefore look forward to the Attorney-General making the obvious point and confirming the policy position. However, there is some doubt, because Ann Furedi, the BPAS chief executive, says that the law is “silent” on the question. Indeed, the DPP in his letter on 7 October said quite properly that the law does not expressly prohibit gender-specific abortions. Rather, it prohibits any abortion carried out without two medical practitioners having formed a view in good faith that the health risks of continuing with the pregnancy outweigh those of termination.

The public might be surprised that such a prohibition is not expressed and that it is not clear. The British Medical Association takes it a stage further, aside from the issue of whether there is an express prohibition. In the BMA’s words,

“there may be circumstances, in which termination of pregnancy on grounds of fetal sex would be lawful”.

That is in the BMA’s handbook of ethics and law and the guidance that goes to GPs. The concern about policy—this is my question to the Attorney-General—is whether the law is clear or silent. In particular, we are concerned about the practice emanating from the policy, which in effect is to turn a blind eye to contraventions of the Abortion Act.

[Robert Flello]

I am listening carefully to a well-measured and thoughtful speech. Perhaps Members will forgive my simplicity in such things, but is it not the starting point for any position that any termination of an unborn child is infanticide, and that the 1967 Act gives specific situations in which it is not? Therefore, surely the default position must be the original position, as it was before the 1967 Act.

[Mr Burrowes]

That is the position in principle: the Abortion Act provides effective safeguard and defence against the Offences Against the Person Act 1861. We have a gap, therefore, and the issue is, where it has been exposed—rarely do such cases see the light of day—why, when the evidential threshold has been reached, is it not considered in the public interest to take things a stage further, into court?

In the particular cases brought to light by The Daily Telegraph investigation, the DPP and the CPS give much weight to the law giving

“a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists”.

The CPS stated that it was up to doctors “to interpret the law” and, flowing from that, that the cases were

“better dealt with by the GMC rather than by prosecution.”

The gap I referred to is, therefore, in effect being determined by doctors, with their wide discretion to interpret the law—if a problem is exposed, it is for the professional body to investigate. As a politician, to me that seems to be passing the buck—the responsibility for enforcing the law—from the courts to doctors, thereby second-guessing the intentions of Parliament on enforcement.

As a criminal defence lawyer, I looked more deeply into that decision. The reasoning seems to be for an evidential rather than a public interest factor against prosecution—the public interest factor was the focus of the review. The CPS statement seemed to be going into what the DPP himself admits were the overlapping considerations of the evidential and public interest tests. The main basis of the DPP’s reasoning for not supporting a prosecution—which went a stage further and, with great respect, I suggest perhaps moved the goalposts towards the evidential side of things—was the evidential difficulties arising in the case, which I think can be applied generally and are of general concern in all such cases. Although the evidential test in that particular case had been passed, my concern is that the wider public interest appears to have been sidelined. That is not only my view, although I have 20 or so years of experience in the criminal law and in dealing with cases where it is difficult to detect a crime.

What is the public interest factor in such cases? The former DPP, Lord Macdonald, drew attention to that point, saying that there is “strong public interest” in prosecuting crimes that are hard to detect, such as sex-selection abortion. The onus is therefore much more on looking into what is in the public interest when so few cases are exposed and where we recognise that there are evidential difficulties—perhaps inherent—in the current system, given the lack of guidance. Does that not make the case even more strongly for a prosecution being in the public interest?

Kevin Williams

Robert Flello Excerpts

Wednesday 22nd February 2012 Westminster Hall

[Robert Flello (Stoke-on-Trent South) (Lab)]

If I may, I will break with convention by starting my comments by paying tribute to Mrs Anne Williams for the determined campaign that she has undertaken to seek justice for her son, Kevin. The tireless work that she has put in and the unwavering love of a mother that she has shown for her young son who was tragically robbed of his life, must serve as a reminder to us all of why we are in Parliament—to serve our constituents and our nation.

I thank the hon. Member for City of Chester (Stephen Mosley) for securing this debate, all those who have signed the petition and indeed all right hon. and hon. Members who have supported the call over many years—too many years—for justice for the 96 who died and the 766 who were injured as a result of events at Hillsborough on that sad day, 15 April 1989. My heartfelt sympathies are with all the families who were affected.

I also put on record my thanks to those who were with Kevin in his final moments, who revived him, carried him and cradled him. Even just reading what happened to Kevin, and to so many others, profoundly moves me, but I cannot begin to comprehend the pain that losing a child such as Kevin—a 15-year-old lad who was just out to watch a footy match on an afternoon—must be like.

That pain was made so much worse by an inquest that was plainly wrong. The evidence that Anne Williams has uncovered and that we have heard today demonstrates clearly that Kevin was indeed alive after 3.15 pm on that day, and it shows just how unsound the original inquests were.

Quite reasonably, there has been a great deal of criticism about how the coroner conducted those original inquests and about how the 3.15 pm time limit has stopped important evidence being brought forward. Our outdated coroner system needs the reforms that were legislated for in 2009, and more reform. If inquests had been properly conducted in the past, justice could have been achieved years ago and decades of pain could have been tempered.

May I gently suggest to the Attorney-General that he speaks to his colleagues at the Ministry of Justice? That is because the need for a chief coroner, with appropriate powers and an appeals system, was one of the lessons learned from terrible events such as Hillsborough. The Government need to rethink the implications of stripping away the powers of the chief coroner from the Coroners and Justice Act 2009.

As we have heard this afternoon and on other occasions, mistakes—some of them genuine errors, others examples of incompetence and even worse behaviour—led to the tragic events at Hillsborough. However, we have also heard that mistakes, incompetence and even worse behaviour happened after the 3.15 pm cut-off time, which have never been examined at inquests. The cover-up that then took place was, to say the least, shameful.

I am pleased that the Attorney-General has said that he will look again at Kevin’s case and I look forward to hearing what he intends to do, as people’s expectations are rightly and understandably high. I hope that he will set out what he can do and, just as importantly, what he feels he is unable to do. If he feels bound by legal constraints, he needs to make those constraints clear and then explain what—if anything—can be done to change those legal barriers. After all, that is what this House is here for; it is here to change legislation if that is what is needed.

I conclude my remarks to give the Attorney-General plenty of time to respond to the debate and if I may I will again break the normal conventions by turning to the Public Gallery and saying that Anne, her family and so many other families need full answers, and inquests that can properly hear testimony about what happened on that profoundly sad day are an important part of getting those answers. I hope that before the 25th painful anniversary of Hillsborough we will have had a proper inquest into the tragic death of Kevin Williams and that Anne—through her mother’s love—can get justice for her son.

--- Later in debate ---

[Robert Flello]

We have only eight minutes left, but will the Attorney-General consider making a statement to the House once he has had a chance to look at further evidence and what has come from the panel, and will he have discussions with Mrs Williams and others? Will he come to the House and present his thoughts?

[The Attorney-General]

I will certainly consider doing so, as I have done in the past. If I come to a conclusion, I would certainly want the House to know what that conclusion is, and I would want the House to understand the reasonings. If it were indeed to be the case that I was going to make an application to the High Court, my reasonings would probably be very brief. If for any reason it were to be the case that I was not to be making an application to the High Court, I would want the House to understand, and indeed the public to understand, why I had come to that conclusion. The reality is that I think it would be inescapable, and indeed proper, that the House would require my attendance to answer questions whether I wished to make a statement or not. For that reason, without anticipating where I will be in respect of this matter, I would be rather surprised if I were not coming to make an oral statement to the House. History has shown that it is a better way of proceeding, particularly in terms of giving adequate notice to the Opposition of what I am going to say beforehand so that we can have a reasoned exchange of views based upon it. I promise that I will keep the hon. Gentleman, and indeed my shadow in this matter, informed of how I am proceeding in respect of it.

It seems to me at least that the Hillsborough panel’s work provides an opportunity to allow for a more informed examination of the evidence. That is going to be very important. My understanding is that not only will it sift through material and make sure that it is presented, but that there will be an ability to direct attention to areas of material that might be seen to be relevant if there is to be further consideration. For that reason, to explain further my rationale behind wishing to wait for the panel’s report rather than just plunging into this material myself, it seems sensible for me to be informed by the panel’s own deliberations.

I will make another point about my work. It is probably not greatly understood, but my office is a very small one. I have a small and dedicated team of lawyers working with me, and I have one deputy Minister, the Solicitor-General. I am afraid it is not the case in matters of this sort that suddenly dozens of people can be let loose on material and we rapidly come to conclusions. That said, I am perfectly aware that after the length of time that has elapsed, there is a real need to try to bring this matter, if I am reconsidering it, to a conclusion. I will be mindful of that, but I will have to ask hon. Members to bear with my office in terms of our ability to manage our workload in what I anticipate is likely to be the sifting of substantial quantities of material. I think quite a lot will be in existence.

[Robert Flello]

I understand the constraints that the Attorney-General’s office has upon it, but given the importance of this matter not only to the House but to the nation, if he finds that he is in a position in which he needs more resources to undertake that work, will he come to the House and ask for that provision?