Crime and Policing Bill

Viscount Hailsham Excerpts

Monday 2nd February 2026 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I will speak to my Amendment 461J. I thank my noble friend Lady Goudie, the noble Lord, Lord Patel, and the noble Baroness, Lady Miller of Chilthorne Domer, for supporting it.

The amendment seeks to add a new clause after Clause 191 that would pardon women who have had a conviction or caution for an offence abolished by Clause 191. Because of the existing 1861 legislation, abortion is classified as a violent crime. The record means that these women will permanently have to declare it as part of a DBS check, thus continuing the damage caused by this offence. It would ensure the removal of women’s details from police systems.

Like Amendment 459C, Amendment 461J seeks to right a wrong and an injustice. Of course, it is not the first time your Lordships have sought to do this, when something which has been unlawful and unjust is abolished. I am referring to the changes of the law on homosexuality and what followed.

The amendments in this very large group that seek to amend or get rid of this clause—passed as it was by a vote of 137 to 379 on a free vote in the Commons—will form the debate this afternoon. For example, Amendment 455, moved by the noble Baroness, Lady Meyer, seems to profoundly misunderstand what it means, because if abortion remains criminalised after 24 weeks of gestation then, under the current law, only women who have an abortion after 24 weeks of gestation are targeted by the police, even when, in most cases, they have had a spontaneous miscarriage or a stillbirth. That amendment would make no difference to the current cruel situation, but the noble Baroness actually says she wants to get rid of the whole clause anyway.

Amendments 456 and 456A, introduced by the noble Lord, Lord Verdirame, would, essentially, reverse the change agreed in the Commons and mean that abortion would remain criminalised. But I am aware that some noble Lords who are very concerned about this clause also support reproductive rights for women. We have already had many meetings about this, with the royal colleges and others. I ask that, between now and the next stage, those of us who take the view that reproductive rights are important but have concerns should continue those discussions.

Unlike what the noble Baroness, Lady Monckton, said in her speech on the clause standing part, this clause was not plucked out of thin air in the Commons. It is the product of years and years of trying to mitigate the criminalisation of women under cruel and awful circumstances. There have been entreaties to the DPP, discussions with the policing bodies and discussions with our legal systems, and every single one of them—I could bore the Committee by giving dates and facts—has taken the view that Parliament has to take a view on this matter. This is not something that can be mitigated by changing guidelines or rules. Indeed, Parliament took a view on this and decriminalised abortion in Northern Ireland a few years ago. As I said, this had no detrimental effect.

This clause seeks to ensure that women in England and Wales are no longer subject to year-long investigations and criminal charges—the kind of situation that the noble Lord just explained. Since 2020, around 100 women have faced police investigations. Six have gone to court; one has been sent to prison. The clause will not change the wider abortion law, or the existing time limits of the 1967 Act. It is supported by 50 organisations, including the medical royal colleges, violence against women and girls groups, every group that represents abortion providers in the UK and other women’s organisations. We should discuss our concerns about the clause and whether it does the job we want it to do, but there is support for it. Fifty countries in the world have not criminalised abortion. Why on earth should we in England and Wales?

[Viscount Hailsham (Con)]

My Lords, I speak to Amendment 456C, but I support Amendment 456, which was spoken to by the noble Lord, Lord Verdirame. The purpose of tabling Amendment 456C is to see if a compromise can be achieved between those who favour Clause 191 in its present form and those who are strongly opposed to it.

Late-term abortions are, of course, already lawful if they fall within the permissive provisions of Section 1(1)(b) to (d) of the Abortion Act 1967. Those paragraphs, of course, permit late-term abortions if there is a serious risk to the health of the mother or a serious risk of abnormalities in the unborn child. But Clause 191 goes very much wider than that. It would permit a mother, without any restriction in law, to abort a child right up to the moment of birth. I find it very difficult to make an ethical or moral distinction between killing a child immediately after birth and killing a child immediately before birth. One has been born, the other has not, but I cannot discern any difference in principle.

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[Lord Patel (CB)]

My Lords, can the noble Viscount please assist me? I understand all the legal reasoning that he has put forward. I am not a lawyer, so I cannot challenge any of it. But I ask for his assistance on what actually happens in reality. In reality, lots of mothers lose their baby as a stillbirth. It happens at all periods of pregnancy. A lot of those losses are unexplained, and every health professional has a real concern when it happens, but for decades we have not been able to find reasons for unexplained stillbirths. If a mother, after 36 weeks of pregnancy, has unexpectedly lost her baby and she delivers a stillbirth, under this amendment, if I have interpreted it correctly, if she is reported to have interfered with that pregnancy—even if she did not—she would be made to prove that she was mentally unstable or financially handicapped. In the circumstance that she was neither of those things but had lost her baby naturally and inexplicably, how would the noble Viscount’s amendment work?

[Viscount Hailsham (Con)]

My Lords, I agree that all investigations in this matter should be conducted with great sensitivity. I take the noble Lord’s points, but at the end of the day you have to establish a principle. May I complete my point before the noble Lord intervenes further? If there is powerful evidence that the mother has wilfully terminated the birth of a child immediately up to the moment of birth, it is right that Parliament should set out a process whereby she has to be investigated. If she falls within the defence, she will have a defence. I admit that that would not prevent an investigation, but at the end of the day you have to determine where you stand on whether or not this House is really going to guard human life.

[Baroness Thornton (Lab)]

How will we know? The noble Viscount needs to tell us how you would know that it was not the loss of a baby through natural circumstances? Who will decide?

[Viscount Hailsham (Con)]

It would be part of the process of investigation. In that context, I sympathise very much with the amendment from the noble Lord, Lord Verdirame, which would provide a further filter. There should be a prosecution only in cases where there has been a clear breach of the law. These are very sensitive matters and need to be conducted sensibly. But we have to stand on principle here.

[Lord Winston (Lab)]

My Lords, I have the greatest respect for the noble Viscount, but I fear there is a difference between speaking in theory and practical reality. I want to point out that I have certainly killed at least one baby at term myself; possibly two.

There is a condition called ectopic pregnancy. Very occasionally, pregnancies grow outside the womb or motor outside the womb during the course of the pregnancy. They are left outside the uterus, where they leave a huge hole in the abdomen, placing the bleeding mother at grave risk when the placenta is removed. In this situation, without any alternative, I did what I thought was a caesarean section in both cases to find that once I had opened the abdomen, the uterus was not in fact pregnant, but I was faced with a baby outside the uterus with a placenta. One baby was clearly very abnormal, with various limb abnormalities; the other baby looked completely normal. Both babies were delivered and—thank goodness, with the help of my colleagues—we were able to save both mothers’ lives. As the noble Lord, Lord Patel, will agree, the bleeding is a very frightening situation in the operating theatre.

If I may, I will tell the Committee the story of someone who was a patient of mine for about seven or eight years. Laura had a very rare condition—there are many rare genetic conditions—in her case, Lesch-Nyhan syndrome. This is a curious disease which tends to affect only boys but can occasionally affect any foetus. Laura had a series of pregnancies. About four of them ended in miscarriage. She desperately wanted a baby. Eventually, she conceived successfully, although she was often infertile, and finally had a baby. She gave birth to a baby rather prematurely, about four weeks before term, who had Lesch-Nyhan syndrome.

Peter was seriously abnormal. He had all sorts of neurological problems. He was unable to eat properly. He was unable to move properly. As a teenager, he had to be strapped in his wheelchair to prevent him mutilating himself. That did not stop him mutilating himself and eventually he started to bite off his lips and his tongue, so he had to have his teeth extracted, and that was not sufficient. He could not be moved around in his wheelchair, because if he was upstairs he would want to tilt himself downstairs. Peter continued to live a very long time; I do not know exactly when he died, but I think he was about 18.

We could do nothing about this lady, but we realised she had this genetic defect. For a long time, we tried to work out the mechanics of it. We eventually sourced the DNA. It was a particular mutation which occurs in very few families in this country. Mutations such as this occur in different ways in different pregnancies, not infrequently; in this case, her mutation was very difficult to deal with. After eight years of trying, she attempted to have more pregnancies because she desperately wanted to have a baby who was free of disease. The risk to her, of course, would be having another baby who might be handicapped and that, of course, would be an immense hardship for that family. That is often one of the big problems for people who try to terminate or deal with these sorts of conditions. Anyway, she had about a dozen pregnancies and eventually we put back into her uterus an embryo which we thought was normal—there was a great deal of resistance in Parliament at the time to this kind of procedure—but she had a live baby, who fortunately was well and was a boy.

That is another example, but it is also fair to say that there are many situations where you have obstetric abnormalities; for example, a baby born with very severe skeletal abnormalities. That could sometimes be unknown. A woman may not report to have her baby for whatever reason during pregnancy until screening is too late and she has not had ultrasound or any other care. That happens in poor families generally. It is inevitable in any society, however good your medical practice might be.

Sometimes, when close to term, a woman is suddenly found to have an abnormal pregnancy in her uterus, which would prevent labour being successful. A caesarean section would probably result in a dead baby but, alternatively, sometimes these babies have been what we call morcellated: you actually try to disintegrate them because it is the only way you can save the mother’s life, if she is critically ill at that stage.

This is a very serious issue and unless one fully understands that these things are possible, one has to recognise that you cannot—

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[Lord Pannick (CB)]

My Lords, this is an exceptionally difficult issue because of the conflicting interests, which cannot, in my view, be balanced.

The first is that under existing law, many women who have recently suffered miscarriages are subject to distressing and intrusive investigations when they have not acted unlawfully. However sensitive the investigation carried out by the police, it will inevitably be intrusive and distressing to the woman concerned. That is the first interest. On the other hand, we have to recognise that there will be women who terminate their pregnancies at a late stage for impermissible reasons, such as was mentioned by the noble Viscount, Lord Hailsham. We have to recognise that, if Clause 191 is enacted, there may well be more such cases. These are two conflicting interests, and I am very doubtful that either of the proposed compromises is a solution to this problem—that is, the identification by the noble Viscount, Lord Hailsham, of further defences, or the proposal of the noble Lord, Lord Verdirame, of a requirement for the consent of the Attorney-General.

The reason why neither of these compromises works is that they will not prevent the investigations of women who have recently suffered the loss of their child. No view can be taken on whether the defences identified by the noble Viscount, Lord Hailsham, apply or whether it is right and proper for the Attorney-General to give his consent to a prosecution, unless the facts and circumstances of the case are known; so the investigation has to take place, and it will inevitably be distressing to the woman concerned.

Therefore, it seems to me that we simply have to make a policy choice here, and it is a choice between two evils: the evil of the investigation of many, many women in very distressing and sensitive circumstances when they have acted perfectly lawfully, or the evil of allowing the women who have acted improperly not to be prosecuted. We will each have our own view on which is the greater evil.

[Viscount Hailsham (Con)]

There is a further consideration that the noble Lord should perhaps address, and that is the value that Parliament should place on human life.

[Lord Pannick (CB)]

Of course Parliament should place a value on human life, but it should also, should it not, place a value on the interests of the unfortunate women who have, in the most distressing of circumstances, lost the child they are carrying. Therefore, to talk about the value of human life does not answer the profound dilemma which Parliament faces in addressing Clause 191. There are two evils here and the question is how we best address the problem.

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[Baroness Ludford (LD)]

My Lords, I will be brief—I would just be grateful for a clarification. I strongly believe in women’s rights, including reproductive rights, and I do not want women in distress subjected to criminal investigation, if at all avoidable. But I am struggling to understand why Clause 191 is considered not to amend the Abortion Act, as the noble Baroness, Lady Thornton, among others, asserts. I noted that the noble Baroness, Lady Foster, said it would be “toothless” if Clause 191 is agreed.

If I have understood it properly, people other than the pregnant woman concerned would still be committing a criminal offence if they gave any kind of assistance. That is why it is considered that the Abortion Act 1967 is not in fact amended. The noble Baroness, Lady Hazarika, referred to repealed abortion offences, so we seem to be relying on the fact that only the woman herself would be regarded as decriminalised. I am not generally happy about decriminalisation, such as in relation to drugs. I prefer dotting the “i”s and crossing the “t”s and having legalisation—or not.

Have I understood that correctly? Maybe it is only when we come to the Minister that I will get full clarification as to whether or not we are amending the Abortion Act 1967, which I broadly support, even though it is a compromise. I have never supported the simple but simplistic “a woman’s right to choose”, because there are other considerations. I support the Abortion Act as a compromise on a difficult subject, as I think many people do, but I seek clarification that the Abortion Act is not being amended and that we would simply decriminalise the woman concerned while supposedly leaving the rest of the Abortion Act as it is.

[Viscount Hailsham (Con)]

What our amendment does is disapply the Abortion Act so far as the mother and late-term abortions are concerned.

[Baroness Ludford (LD)]

Then I am not terribly attracted by the amendment of the noble Viscount, Lord Hailsham. I am rather more attracted by that of the noble Lord, Lord Verdirame, although I have heard the criticisms of the noble Lord, Lord Pannick, about that.