Conscientious Objection (Medical Activities) Bill [HL]

Viscount Craigavon Excerpts

2nd reading (Hansard): House of Lords
Friday 26th January 2018 Lords Chamber

[Viscount Craigavon (CB)]

My Lords, I oppose this Bill, but I was grateful to have the article, which has been referred to, in the House magazine by the noble Baroness, Lady O’Loan, to provide some sort of background to how she got to this point, as well as the excellent Lords Library Note, which expanded on some of the references that the article mentioned, in particular the Supreme Court judgment, all of which I will come to shortly.

One might ask, as they do more robustly in the House of Commons on Private Members’ Bills, what is the need for this particular Bill? Given that we saw the first appearance of a Bill very similar to this one from the noble Baroness in our House in June 2015, when it had time only for a First Reading, I was initially wondering whether the need for this legislation had arisen to meet popular demand and discontent at the present law, or whether it might have been created by a small group of the well-intentioned for their betterment of mankind. I hope what I can show here is that the direction is from the top down and that there may not be the popular clamour for more statute law to deal with what is before us.

As we have been made aware in the briefings we have received, the four councils referred to with their registers in Clause 1(2) all have their own procedures for dealing with conscientious objection when it is not covered by statute law. I was not sure that the noble and learned Lord, Lord Mackay of Clashfern, was fully aware of that. I will mention that in more detail. These have slight variations but cover broadly the same ground, particularly in passing on to others responsibilities that one individual can reject for reasons of conscience, and are framed to suit the particular needs of each of these four councils.

I noticed that the one major change to the earlier 2015 Bill was the addition, in Clause 1(2)(d), of the General Pharmaceutical Council. That adds to the numbers who could be directly or indirectly affected by this Bill—about 53,000 members who are on its register. I therefore would have thought that at least some sort of proper consultation with the council should have taken place before incorporating it in this Bill, but I understand that that has not happened. That is very much from the top down.

It also may have been thought that pharmacists could become a major channel for the distribution of medical abortion pills. The noble Baroness made that connection in her speech. But, as I explained, without any further statute law, the General Pharmaceutical Council already has a perfectly good provision in place for conscientious objection by its members, framed for their particular professional circumstances.

To try to put all these councils in a common straitjacket of general and far-reaching statute provisions would be counterproductive and require extensive continuing legal dispute and interpretation.

The Supreme Court judgment of the noble and learned Baroness, Lady Hale, particularly in paragraph 38 and her interpretation of “participate”, is a very good division of the existing position between what is suitable for statute law and what can be fairly achieved by individual guidelines, which, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, can be context specific or decided in employment tribunals.

From a practical point of view, we have learned from the various submissions that we have received on this Bill, from organisations with complex medical procedures and specialised manpower, how much uncertainty this Bill would cause in day-to-day running, mainly in one never being quite sure what staff would be available to meet ever-changing needs and circumstances, with the patients being the ones to suffer.

In the article that I mentioned at the beginning, the apparently simple phrases,

“the taking of human life”,

and,

“to take a human life”,

occur. Most of us here know that they are the beginning of divergent views in the fields we are addressing today—the noble Baroness, Lady O’Loan, used the same phrases. For example, when exactly does human life start? When is withdrawing life-sustaining treatment or turning off a machine justifiable? Many more questions are begged by those simple phrases, which might give us a false sense of a shared starting point. I hope that I have highlighted some of the potential difficulties with this Bill, which I oppose.

Conscientious Objection (Medical Activities) Bill [HL]

Viscount Craigavon Excerpts

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

[Lord Turnberg]

I can. Clause 1(1)(c) refers to:

“No medical practitioner with a conscientious objection to participating in … any activity … required to prepare for, support or perform termination of pregnancy”,


in this instance.

[Viscount Craigavon (CB)]

My Lords, I spoke at Second Reading against this Bill, very much in support of the result of the judgment of the noble and learned Baroness, Lady Hale. From what she says towards the end of her judgment, we are not tied to the literal meaning of “hands on”. I also refer to the article on this Bill in the House magazine by the noble Baroness, Lady O’Loan, in the week of the Second Reading, where she employed the apparently simple phrase the “taking of human life”. In terms of realising that we all do not share our definitions of the same starting point and end point of life, I believe that in this field we do not all have the same premises to anchor our consciences. To the extent that this Bill is built upon a particular version of what is meant by “human life”, we are bound to end up with differing conclusions and disagreements.

As has been made clear by the noble and learned Baroness, Lady Hale, at the end she enlarged on her “hands on” phrase with her examination and analysis of the 13 tasks of the petitioners’ role. I believe that is the best definition of the phrase that we need, which has been very fully covered by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He, like me, regards that as an anchor for interpreting the current law.

To go back to a much earlier part of the noble and learned Baroness’s judgment, to paragraph 11, she went back in time to help to show how the law had arrived at the present situation, and how “participation” had come to be defined. The noble and learned Lord, Lord Brown, gave details of the case that I was going to mention—the 1989 case, in the House of Lords. The noble and learned Baroness interestingly said that it was,

“a case which all parties accept was rightly decided”,

the “all parties” being the parties before her in that case.

I shall not give the details of the Janaway occupation, which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave, but it was decided then that participating meant actually taking part in the process of terminating the pregnancy. The noble and learned Baroness, Lady Hale, added that it did not have the extended meaning given to participation in the criminal law, as the noble and learned Lord, Lord Brown, again enlarged on. So that submission failed and, apparently, all parties to the present case agreed it was rightly decided, as I said.

I mention all this detail in order to ask whether we are in danger, by this Bill, of having to reverse what was decided in 1989, or even earlier. The Bill is trying to solve very complex problems by the very heavy imposition of a statute law that is quite unsuitable and insensitive for what it is trying to achieve. When we come to Amendment 15 it will be seen how much the weight of this statute law proposal would need to be softened by a more balanced and humane approach. For the moment, I fully support Amendments 1 and 3.

[Lord Cashman (Lab)]

My Lords, I support Amendment 1, in the name of the noble Lord, Lord Steel, and the other amendments in the group. I will restate what I said at Second Reading, so that there is absolutely no doubt. I completely respect conscientious objection—religious and non-religious. I respect and defend the right to freedom of religion and belief, but not the right to impose them upon others who do not share them and, by so doing, diminish the rights and legal choices of others. It is always a joy to refer to the comments of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whom I absolutely agree. This is an attempt to rewrite the law in the light of the Supreme Court judgment delivered by the noble and learned Baroness, Lady Hale, in the Greater Glasgow Health Board v Doogan.

If the Bill were to become law unamended, we would see conscientious objection so widened beyond the wise judgment of the noble and learned Baroness as to make certain services, such as IVF treatment, end-of-life care and abortions, difficult to access and sustain nationally. We would witness the imposition of belief to curtail the legal choices and options of others. I support these amendments because they would reinforce existing law. As has already been said, conscientious objection is clearly laid out in statute, and has a clear interpretation in law. This is that no person shall be under a duty to participate in a “hands-on” capacity in the termination of pregnancy, except in a clinical emergency. This definition is long established, supported by medical colleges and professional organisations as well as organisations such as the British Pregnancy Advisory Service. There is no convincing, independent, impartial evidence to indicate that it is operating poorly.

Therefore, these amendments seek to retain the existing scope of conscientious objection, which is already in legislation. It is in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1980. It is worth restating that the Abortion Act 1967 says that,

“no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection”,

but provides an exception for termination,

“to save the life or to prevent grave permanent injury to the physical or mental health”,

of the woman. The interpretation of this provision is found in the 2014 Supreme Court judgment in Doogan. That judgment absolutely upholds the concept of “hands on”. The noble and learned Lord, Lord Brown, has already gone into the details of that judgment.

In conclusion, the current law effectively balances rights. Conscientious objection must seek to balance the rights of healthcare professionals to act within their own ethical principles and the rights of patients to access legal medical care. The support of professional bodies and organisations for the principle of conscientious objection makes it clear that healthcare professionals are not expected to take a hands-on role in terminations of pregnancy, IVF or end-of-life care, which I will come on to when we debate later amendments. At the same time, patients must have the ability to exercise their rights to access legal healthcare. Conscientious objection cannot be allowed to undermine the rights of women, and others, to access services.