HC Deb 14 March 1980 vol 980 cc1745-813
Mr. David Ennals (Norwich, North)

On a point of order, Mr. Speaker, I had understood that this morning we would be considering the final stages of the Child Maintenance Orders (Annual up—rating and exemption) Bill, as amended in Standing Committee C. The House knows that that is an important Bill. It is not surprising that I have raised this point of order. The Bill concerns the responsibility of the Secretary of State for single—parent families. It ensures that liable relatives fulfil their responsibilities.

No statement has been made by the Minister, the Leader of the House or the hon. Member responsible for the Bill. I do not understand why we are not discussing it—

Mr. Speaker

Order. I am sorry to interrupt the right hon. Gentleman. The truth is that the hon. Member responsible, is not moving his motion on the Bill today. There is business before the House, and we should consider that.

Mr. Ennals

Further to that point of order, Mr. Speaker. Once a Bill has passed through the Committee stage, is it not the property of the House? Can one hon. Member decide to withdraw that Bill? I do not wish to quote from rumours, but rumour has it that the Leader of the House has referred the Bill to the Law Commissioners. If that is true, is it not a breach of his responsibility? Surely this issue concerns the Secretary of State for Social Services. Is it not permissible for another member of the Standing Committee to move a motion on the Bill? The Bill has been given a Second Reading and has passed through its Committee stage. It has been laid before the House for Report and Third Reading. Is it not true that an unpleasant trick has been cooked up at the expense of the tens of thousands of people who will benefit if the Bill is enacted?

Mr. Speaker

Right hon. and hon. Members will have studied the Votes and Proceedings. The hon. Member responsible for the Bill has a right to set the date at which he wishes it to be considered. That date has been made known to the House. The Bill is to be considered upon Friday 4 July. It is as simple as that. The business of the day is now before us.

Mr. J. W. Rooker (Birmingham, Perry Barr)

On a point of order, Mr. Speaker. Having listened to your remarks, my point of order has become slightly different. I was responsible for ensuring that the Opposition Front Bench kept a brief on the Bill during Second Reading and in Committee. The Government consistently voted against the Bill in Committee. Until your statement, Mr. Speaker we had understood that the Bill had been withdrawn and referred to the Law Commission, not by the Secretary of State but by the Leader of the House. However, you have said that the hon. Member responsible for the Bill has the right to name the date upon which the Bill will be considered, and that he has named 4 July.

Will the Government make a statement indicating whether the Bill has been referred to the Law Commission, or whether it will come back to the House? One cannot have both at the same time. The House will not know what to do. Tens of thousands of individuals will be affected by the Bill. They want to know its status. May we ask you to ensure that the Leader of the House will make a statement on this issue?

Mr. Speaker

I cannot do that. The Votes and Proceedings have been published, and were dated Thursday 13 March. They state quite clearly that the Bill is to be considered on Friday 4 July. The hon. Member is therefore within his rights. The hon. Member who wished to set a date for his Bill would be angry if the House attempted to deny him that right.

Mr. Ennals

Further to that point of order. Mr. Speaker—

Mr. Speaker

There is not much that can be further to that point of order.

Mr. Ennals

Further to that point of order, Mr. Speaker. As the Leader of the House has been courteous enough to attend, it would be to the convenience of the House if he gave some explanation, so that the House and the country could understand what has happened.

Mr. Speaker

I have explained to the House what has happened. The date has been changed. The first amendment is No. 98, which I understand is to be moved by the right hon. and learned Member for Dulwich (Mr. Silkin).

Mr. Eric Deakins (Waltham Forest)

The hon. Member in charge of the Bill that is now to be heard on 4 July had originally introduced his Bill for consideration today. Are we to understand that an hon. Member may select as many different dates as he likes for the Second Reading of his Bill, or for its consideration on Report, and may change them as he likes?

Mr. Speaker

If an hon. Gentleman gives notice to the House, he is within his rights, and notice has been given.

Mr. W. Benyon (Buckingham)

I realise, Mr. Speaker, that your discretion in the selection of amendments is absolute. However, amendment No. 98 does not deal with the issue that was decided by the House on the last vote on 29 February. It goes right back to a previous decision of the House in a previous debate. If the amendment had been placed on the Order Paper before 29 February it would without doubt have been grouped with the other amendments that were the subject of discussion at the end of the debate on 29 February.

Surely the whole substance and intent of amendment No. 98 has been thoroughly debated and discussed in the House on a number of previous occasions. I submit that in this instance the Question should be put forthwith and not debated. If that is not done we may be deemed to be disregarding the intention and spirit of Standing Order No. 30(2) and the section of "Erskine May" under which the whole basis of the next group of amendments on the Order Paper was decided. This was shown, Mr. Speaker, by your reply to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) when he raised his point of order on 29 February.

Mr. Speaker

I allowed the hon. Gentleman to make his point of order. The only part that he left out was "With every respect, Mr. Speaker, I am not challenging your ruling."When that is said, I sit up straight, because I realise that a challenge is coming. As the House expected of me. I spent a great deal of time this week considering the amendment. In my judgment the amendment should be called.

Mr. S. C. Silkin (Dulwich)

I beg to move amendment No. 98, in page 2, line 8, after the words last left out insert— '(4) For subsection (4) of that section there shall be substituted the following subsection:— (4) A person forming his opinion for the purpose of paragraph (b) of subsection (1) of this section who relies upon a factor other than or in addition to statistical probability applicable to pregnancies generally shall be entitled to form such opinion as if the word 'substantially' were omitted from the said paragraph.".'. If I may say so, Mr. Speaker, far from challenging your ruling I gratefully accept it. I hope to demonstrate that the amendment is necessary. My reasons for tabling it are twofold. I hope that when the hon. Member for Buckingham (Mr. Benyon) considers the first reason, if not both reasons, he will appreciate that there is a strong case for arguing why the amendment should have been selected and why it should be agreed to by the House.

The last amendment to the Bill, which was carried before the House adjourned its consideration of the Bill, was amendment No. 7, which had the support of the promoter. It had the result of leaving out the whole of clause 1(4). That subsection provided that certain words should be substituted for section 1(4) of the original Act.

9.45 am
Mr. Michael Shersby (Uxbridge)

I cannot hear the right hon. and learned Gentleman.

Mr. Silkin

I am doing my best against conversations on both sides of the House. I am willing to go back to where I started.

Mr. Kenneth Baker (St. Marylebone)


Mr. Silkin

I was saying that the last amendment to which the House agreed before it adjourned its consideration of the Bill was amendment No. 7. That amendment had the effect of leaving out the whole of clause 1(4). That subsection did two things. First, it removed section 1(4) of the Abortion Act 1967—the principal Act. Secondly, it dealt with the statutory instrument procedure. Therefore, by accepting that amendment the House, whether it realised what it was doing or not, not only declined to allow the statutory instrument procedure but decided to leave untouched section 1(4) of the principal Act.

That subsection provides for what might be called the emergency procedure. It provides that section 1(3) and so much of subsection (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to"— for example— save the life … of the pregnant woman. Accordingly, that subsection remains in the Act, and provision remains in that measure for what is to happen in the event of an emergency termination. The next amendment to be considered by the House is No. 90, which seeks to amend clause 2. If we examine clause 2 and amendment No. 90 we find that they both deal with the emergency situation which is already dealt with by section 1(4) of the Abortion Act.

Whether the amendment is carried, whether the Bill remains in its original form with clause 2 as it stands, or whether it is amended by leaving out a substantial part of the clause and inserting the words which, as I understand it, are now accepted by the promoter, the fact is that clause 2 will cover precisely the same subject as is already covered by section 1(4) of the Abortion Act. Therefore, we will have double provision for the same subject. There will be provision in the original Act and again in the Bill as it stands.

If the Bill is passed we shall be sending to another place a measure that is complete nonsense. That is because it will be dealing with emergency termination in a way that appears in section 1 of the principal Act and in the new section that is proposed to be added as a result of clause 2.

That is clearly something that the House could not contemplate. For that reason alone, it would be necessary to pass an amendment which would clear up that matter altogether. That argument could perhaps be described as technical, in the sense that the other place, if the Bill reaches it, could put the matter right. However, it is surely preferable for it to be put right in this place rather than to send to the other place a Bill that is so seriously technically defective.

However, the purpose of the amendment is twofold, and its second purpose is one of substance. The hon. Member for Buckingham, possibly because he did not wait to hear the explanation, did not fully appreciate the substantial purpose of the new subsection. During out last discussion there was a great deal of talk about possible compromise. Indeed, the promoter of the Bill put his name to a number of amendments, indicating that, the House having passed the 24-week amendment, and subject to one or two differences, he would be prepared to jettison the rest of the Bill. Many hon. Members on both sides of the House who oppose a major part of the Bill seemed to be willing to accept that compromise, and expressed themselves in those terms.

Unfortunately, a difficulty arose, because when the House debated the grouped amendments it voted for the word "substantially" by a majority of three votes, at the very last minute after it had heard the views of the Attorney-General as expressed by the Minister. I believe that it voted for that word on the basis that all the Minister and the Attorney-General had meant was that the use of the word "substantially" was a way of avoiding the difficulty in the minds of some Conservative Members—

Mr. Leo Abse (Pontypool)

And on this side.

Mr. Silkin

Indeed, I must not forget my hon. Friend. That difficulty was created by what is known as the statistical argument. As I understand it, the argument means that there are doctors who say that statistically there is a substantial chance of any woman who undergoes a pregnancy suffering serious injury as a result, or even dying as a result. It is suggested—I do not know with what proof, but for the moment I am prepared to assume that it is so—that some doctors are prepared to sign a certificate on nothing other than the bare statistical proposition.

Dr. Alan Glyn (Windsor and Maidenhead)

That was the point that I raised during our last debate. Does the right hon. and learned Member agree that, although the majority of the House is perfectly happy with 24 weeks, the word "substantially" is extremely difficult to define? I asked that before we voted on the matter we should have the opinion of the Attorney-General on the Floor of the House rather than upstairs in Committee. That opinion may have been given upstairs by the Minister, but it is the sticking point of the whole Bill. As a former Law Officer, will the right hon. and learned Gentleman give his view about the word "substantially" and how it would affect the decision of a jury with regard to a doctor's conduct?

Mr. Silkin

I agree with the hon. Gentleman, and I am obliged to him for putting that point so clearly, because it is one of very great importance.

Dr. M. S. Miller (East Kilbride)

Does my right hon. and learned Friend accept that the word "substantially" as it relates to the statistical argument applies only to terminations that are carried out at a very early stage? Before making up his mind, the doctor could not use the statistical argument if the termination were being carried out at a later stage. In other words, it would be wrong to accuse doctors of using the statistical argument in respect of all terminations that were carried out later than about 12 weeks, because the statistics would not bear out what the opponents of abortion feel is being done in the name of the statistical argument.

Mr. Silkin

In relation to technical medical matters, especially those relating to statistics, I am entirely in the hands of my medical colleagues and I must accept what they say. But speaking as a layman, the important point—I can see the argument that is put forward by those who support the Bill—is that if a doctor bases his decision on nothing more than a statistical argument that applies to pregnancies generally and that has nothing to do with the circumstances of the particular patient, I believe that he is breaking the law. However, I can understand that supporters of the Bill may feel that there is a danger in that regard, and I can understand their wish to try to safeguard against that danger.

Mr. Ennals

It was extremely helpful of my right hon. and learned Friend to give his own interpretation of the word "substantially" and its implications. He will recall, as I do, that in a very short intervention, and without giving any reasons, the Minister said: I have discussed this with my right hon. and learned Friend the Attorney-General and this is also his view."—[Official Report. 29 February 1980; Vol. 979, c. 1726.] We have not heard that view. Does not my right hon. and learned Friend agree that before we reach a conclusion this morning we should have the view of the Attorney-General? After all, the Attorney-General is a member of the Government, and unfortunately, my right hon. and learned Friend is not. Before reaching a conclusion on this debate should not we have the views of the learned Attorney-General?

Mr. Silkin

For the last six years I have always been of the opinion that the views of the Attorney-General are of assistance to the House in many circumstances where they are not called for. I certainly agree that they would be of assistance in this instance, where his views have been called for. They have been called for not only by my right hon. Friend today, but also on the last occasion, as the hon. Member for Windsor and Maidenhead (Dr. Glyn) pointed out. This is a matter of great difficulty.

10 am

If I may be allowed for a moment to be a substitute Attorney-General, I shall give my view on the effect of what we did on the previous occasion, not to go back on it but to explain the second purpose of the amendment. I have no doubt that a court, reading the principal Act and the Bill with the word "substantially" inserted, would take the view that the word does not mean merely minimal but something wide and considerable. If that is right, in failing to remove the word "substantially" in relation to the danger to a pregnant woman we produce the situation in which, in order for an abortion to be lawful, apart from the time limitation, there must be a considerably greater risk to the life of the pregnant mother than would be the case if the abortion did not take place. If there were some greater risk to the life of the mother, but not so much greater, the requirement for the preservation of the foetus in law would be higher than that for the preservation of the life of the pregnant woman.

I do not believe that the House wanted to do that, but it reached that position because of the way matters turned out. The last minute, secondhand advice from the Attorney-General was directed not to that point but to a totally different one. Unfortunately, because of the closure, that point was not sufficiently forcefully made in the minds of right hon. and hon. Members.

Mr. Shersby

Is the right hon. and learned Gentleman saying that the difficulty occurs where the decision is marginal?

Mr. Silkin

It is not even necessarily in a marginal case. It depends on the precise weight that the court would give to the word "substantially". It seems to me that, construing the two pieces of legislation together—the principal Act and the Bill, if it ever becomes law—the court would be bound to construe "substantially" as meaning a considerably greater risk. Anything between "greater risk" and "a considerably greater risk" would be something that the mother would have to bear. It would be unlawful for the doctor to carry out an abortion if that were so.

In my view, it is not merely a marginal case. Even if it were purely marginal and there were a marginally greater risk to the life of the mother, I and the vast majority of people, including right hon. and hon. Members, would instinctively say that the life of the mother must come first and the preservation of the foetus must come second.

Mr. Alexander W. Lyon (York)

I agree with every word that my right hon. and learned Friend, says, but surely the situation is even worse. He is right to stress the extent to which the mother's life may be in danger by an increase in the risk that she has to bear, but the fact that she has to bear an increased risk means that there is a proportionately lower risk to the life of the foetus. In a situation where this is a balance between the two, the margin widens. There may be a substantial risk to the mother, which would not allow for an abortion of the foetus, even though the risk would otherwise have been inconsiderable to the foetus.

Mr. Sakkin

That may well be right. I agree with my hon. Friend.

The House has carried amendment No. 7. We can now do two things. First, we can mitigate the effect of something that I believe the House would not have done had it been fully conscious of what it was doing, any more than it would had it been conscious that it was creating the extraordinary situation of a double provision in the legislation. Secondly, I assume that the House would still be minded—as, indeed, would the proposer—if it were possible, even at this late stage, to accept a compromise to remove the possibility referred to again and again on the previous occasions of the subject coming up year after year, with fresh attempts to alter the existing law.

Mr. Abse

My right hon. and learned Friend is making a convincing case. Provided that he can, with the authority that he possesses as a previous Attorney-General, reassure the House that the amendment in no way detracts from the thrust against the statistical argument, I hope that the promoter of the Bill, in a spirit of compromise and to bring the matter to a conclusion, will accept the amendment.

Mr. Silkin

I am grateful to my hon. Friend for expressing that early view. I hope that the promoter will take full account of that expression of opinion.

Turning directly to the point that my hon. Friend makes, as I said earlier, the vice that has been attributed to the present situation is the vice that doctors may make their minds up on a general statistical argument totally unrelated to the case physically in front of them. That is what worries certain hon. Members, including my hon. Friend and the promoter. It is to that, therefore, that I have directed the form of the amendment, which would make it quite clear that the phrase "substantially greater risk" would remain binding in law if the only consideration were statistical probability applicable to pregnancies generally. If that were the only consideration in the mind of the doctor, he would have to be satisfied by the statistical argument—and it is difficult to see how he could be—that there would be substantially greater risk to the life of the mother.

If there were some other factor that applied specifically to the physical characteristics of the mother, something that the doctor had found on examination over and above, or in lieu of, the statistical argument, something specific to the mother or the child—and we are dealing here also with the provision that applies to existing children——the word "substantially" would be excluded from consideration and it would be a pure balance of risk. Would the risk to the mother or the risk in the case of the child be greater—not substantially greater, but greater—if the abortion were not carried out than if it were carried out?

I would never dare to suggest that the wording of the amendment is technically perfect. It can no doubt be improved, if necessary, in another place. But the idea behind the amendment and the intention of the wording that I have used is that which I have described. Given a physical or mental factor that affects the mother or the child specifically, "substantially" would be removed. Without such a factor, and with the general statistical argument affecting pregnancies alone, "substantially" would remain in. I would have thought that this would deal precisely with the difficulty that the promoter and my hon. Friend feel about the law as it stands. I would hope that it would also deal with the grave doubts that my hon. Friends and I, and those who oppose the Bill generally, have felt about the narrow victory that left "substantially" in.

Mr. John Fraser (Norwood)

Is it not the case that the opinion would have to be formed in good faith and not merely capriciously?

Mr. Silkin

Yes, of course. It runs through the whole of both the original Act and the amendments to it that any opinion must be formed in good faith. We are dealing with the situation in clause 1. Perhaps the same point will apply later in relation to the emergency situation. The doctors concerned have to form the opinion in good faith, first, that there is a factor other than statistical probability applicable to pregnancies generally and, secondly, that the factor is one that creates greater danger to the life of the mother if the pregnancy is not terminated than if it is.

Mr. W. Benyon

When I first read the right hon. and learned Gentleman's amendment it seemed to me that it completely negatived what was decided in the previous debate. This is a matter on which a number of hon. Members representing one side of the argument feel strongly. I have listened carefully to the right hon. and learned Gentleman. He must be more specific. What cases would fall within his amendment that do not fall within the amendment passed on 29 February? For instance, the handicapped child is dealt with. The social clause remains in the Bill. I understand that we are talking about a condition in the mother alone. What condition could exist that does not give rise to the substantially greater risk, in the terms of the amendment that was passed on 29 February, that would be covered by his amendment? I am still trying to sort that out in my mind.

Mr. Silkin

It deals with the provision that was made. One of the difficulties is that one has to turn back to amendments already carried and incorporated into clause 1 and therefore carried back into section 1 of the Act. That section deals with all the matters that stood there originally, except those matters that the promoter of the Bill has taken out and put into a separate clause.

10.15 am
Dr. M. S. Miller

I should like to refer to a case, or series of cases, by no means uncommon, that would fit the category that the hon. Member for Buckingham (Mr. Benyon) has mentioned. If a woman were suffering relatively high blood pressure, which is not uncommon in pregnancy, and it was necessary to carry out a termination at 16 weeks, I can assure my right hon. and learned Friend that a doctor would be hard put to say categorically that the extent of the patient's high blood pressure was such as substantially to increase the risk. He could say that it would increase the risk. I can assure my right hon. and learned Friend that it would take a bold doctor to add the word "substantially" in such cases. These cases are by no means uncommon.

Mr. Silkin

I am grateful to my hon. Friend. On matters of technical merit or knowledge, I bow to the greater knowledge and experience of my medical colleagues. I hope that this deals with the difficulty that the hon. Member for Buckingham raised originally in his point of order. I hope that the hon. Gentleman, having heard what I said, understands that the intention was to deal with two real difficulties, one of substance and one technical. I understand fully that the amendment does not easily explain itself. It has to be explained, so that one understands what it is about. I fully understand that it could be thought to be simply going back on a decision that the House has already made. I hope that the hon. Gentleman understands that it is not put forward with that intention.

The amendment is put forward on what may be the last possible chance for the House to agree to a compromise that in my view would satisfy the majority on both sides of the argument and enable the Bill to proceed in what I agree would be a severely truncated form but a form that the promoter of the Bill expressed himself as willing to accept when we were dealing with the matter on the last occasion.

Mr. Peter Archer (Warley, West)

Will my right hon. and learned Friend address himself to one possible objection to this amendment which, I confess, has troubled me although I supported it? Those who have addressed their minds to the question of the statistical argument agree that it would be a misreading of the 1967 Act, and that if any doctor relies on that argument he has misconstrued the Act. What is my right hon. and learned Friend's reply to the suggestion that the wording of the amendment might entail giving statutory recognition to the possibility that, but for the amendment, a doctor might form his view without considering any factor other than the factor outside the statistical argument?

Mr. Silkin

I am grateful to my right hon. and learned Friend. Despite what I said earlier about the views of Attorneys-General and substitute Attorneys-General it is also of great value to have the views of former Solicitors-General. I gave close consideration to the point that he makes. I tried to allow for it in the amendment, although I have already accepted that I should be the last person to suggest that any amendment drafted by myself is necessarily technically perfect or necessarily anywhere near as good an amendment as the parliamentary draftsman, looking at it again, if necessary, could produce.

The amendment contains the words relies upon a factor other than or in addition to statistical probability". I have sought to recognise that it is proper to regard statistical probability as a factor, provided that if the doctor relies upon the wording of the rule without the word "substantially" he must consider a factor that goes beyond mere statistical pobability. Medical hon. Members may wish to comment on that. It is unrealistic to expect that a doctor would exclude from his mind real evidence relating to statistical possibilities. The danger arises when a doctor fastens on that and that alone. By the use of the words other than or in addition to". I hope that I have dealt with the difficulty raised by my right hon. and learned Friend the Member for Warley, West (Mr. Archer). I hope that the promoters will accept the amendment in the spirit in which it is intended. I move the amendment in the spirit of correcting what is clearly wrong, technically. I seek to further a compromise that is in the general interests of the House and is wanted by the House and the country. The country does not want this subject to be considered again and again, year after year. It does not want the subject to take up the time of the House for day after day, to the exclusion of other more important business.

Mr. Ennals

I do not wish to make a long intervention. As one of the sponsors of the amendment, I thank my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) for the way in which he moved the amendment. I hope that his arguments will convince the promoters of the Bill that they should support the amendment.

I have made many interventions during the passage of the Bill because I believe that it is in the interests of the House and the country for a decision to be taken. I say that partly because of my personal interests, and partly because of the responsibilities that I had as Secretary of State in the previous Government. A decision should be taken because I believe that the House would be held in disrepute if we were not able, after so many months of debate, to reach a conclusion. I believe that a decision should be taken because the House would be held in further disrepute if the issue were raised again next year or the year after.

I wish that the Bill had never been presented. I believe that we should be satisfied with the 1967 Act and the way in which it is operated. However, the will of the House is expressed clearly. It wishes to make one change—from a 28-week limit to a 24-week limit. Having expressed that view the House should be able to take a decision without the problems and complications that would exist if the "substantially" amendment, having been defeated last time, were not accepted today.

The argument deeply involves the medical profession. Even more, it affects mothers. People say, not "Please do not change the Bill", but "Please let us know clearly what the law says". It is important to pass a Bill today. The attitude of many hon. Members, including myself, will be much affected if the amendment is carried. If it is carried, we shall have a Bill of which the House will have reason to be proud and which will not do any damage.

I do not claim to have medical knowledge. I have never performed an operation and, thank heaven, I shall never have to do so. However, I know the anxiety of the medical profession about the problems that it will experience when having to make swift decisions. A doctor cannot consult his lawyers before taking a quick decision. I am convinced that unless the amendment is carried doctors will be excessively cautious. Once a doctor decides that he dare not, because of the law, do what he believes in his clinical judgment should be done, women will suffer. Hundreds of women could die as a result of a doctor not doing his medical duty because of his fear of what the word "substantially" means. The BMA has made its views clear. I hope that the amendment will be carried.

If the amendment is not carried, many women will still have abortions, but they will not be legal. Once again we are attempting to ensure not only that doctors are able to make clinical judgments, as they should, but that we do not push women into the black market and illegal activities.

10.30 am
Mr. Charles Morrison (Devizes)

I shall be brief. I support the amendment. It is important that the House should do its utmost to ensure that the legislation makes sense. The reality is that often we are not very good at making sense, hence the importance of the other place as a revising Chamber. On the other hand, in spite of the fact that I suspect that the other place is this morning the most popular institution in the land, I do not believe that it is right and proper that this House should pass the buck continually and leave it to the other place to make sense of the nonsenses that we produce in this House.

I believe that the first purpose of the amendment moved by the right hon. and learned Member for Dulwich (Mr. Silkin) is of considerable importance. However, it is the second purpose of the amendment that demonstrates the considerable service that the right hon. and learned Gentleman has done to the House. I shall not attempt to go over his arguments, but the effect of the word "substantially", which was left in as a result of our decision on the last occasion on which we debated the Bill, is that there is continuing opposition to the measure.

As was pointed out by the right hon. Member for Norwich, North (Mr. Ennals), the vast majority of people would like to see the Bill enacted on the basis of lowering the upper limit for abortion to 24 weeks and leaving it at that. On the other hand, those of us who have had doubts about the Bill from the beginning must accept that the supporters of the Bill wish to go further.

The right hon. and learned Gentleman seems to be providing the House with a reasonable second attempt to find a compromise between those who support and those who oppose provisions in the Bill other than the 24-weeks issue. It must be accepted that were it not for the advice given by my hon. Friend the Minister for Health in respect of the word "substantially" in all likelihood the House would have come to a different conclusion.

I think that on that occasion the advice that my hon. Friend gave may have been perfectly reasonable and sensible from the legal point of view, but perhaps it was not very wise from the political point of view, having regard to the wider implications of the passage of the Bill.

Dr. M. S. Miller

Will the hon. Member accept that that would not have been very wise from a medical point of view either? It would appear that if the original wording is carried the decision to carry out a termination will be not a medical decision but a legal one. The doctor would have to obtain a legal opinion at the beginning.

Does the hon. Member accept that the doctor could find himself in an invidious position? He would have to obtain legal advice, because it is possible that he would face litigation if he did not perform the abortion. If he did not perform the abortion—or recommend it—there could be litigation against him if the mother were in some danger, which he was unable to prove beforehand. In other words, he would have to obtain qualified legal advice on whether to perform the abortion. He would be told by the lawyer which was the lesser of the legal risks, not the lesser of the medical risks.

Mr. Morrison

I entirely accept what the hon. Member for East Kilbride (Dr. Miller) says. I was trying to describe what I understood had happened the last time that we debated this issue.

As a result of the House not agreeing to the amendment that has been referred to, those who oppose the Bill remain extremely unhappy. It is helpful that the right hon. and learned Gentleman has proposed a further compromise which for me, as an opponent of the Bill—except for the question of the 24 weeks —makes the measure acceptable, subject to the acceptance of the other amendments relating to the dropping of later clauses. I hope therefore, that the supporters of the Bill will be prepared to accept the amendment.

It is a matter for regret that the Attorney-General is not here today. It is difficult for the layman to understand the legal language of any Attorney-General when he is advising the House, but it is better to have the advice of the Attorney-General than not to have it. Having said that, I must go on to say that we have had the benefit of the advice of a former Attorney-General and that that was of considerable importance. I support the amendment and hope that the House will accept it.

Mr. W. Benyon

rose in his place and claimed to move, That the Question be now put.

Hon. Members


Mr. Speaker

Order. I shall consider that request when I have heard something in reply, even if it is only a few words.

Mr. Alexander W. Lyon

The hon. Member for Devizes (Mr. Morrison) suggested that the advice of the Minister on the last occasion when he intervened to say why the Government would not oppose the word "substantially" was legally correct. That may or may not be true but the Minister did not give any reason for that advice. He pointed out that the Attorney-General had not explained the significance of the word "substantially". Some of the Bill's opponents felt strongly that the advice given to the House on that occasion was legally incorrect.

I cannot pretend that this amendment corrects the wrong done by leaving the word "substantially" in the Bill. This is simply an ameliorative provision that does not correct the wrong done by leaving in "substantially". I signed the amendment in that spirit, but I cannot pretend that if it were passed that would mean that all my doubts and reservations about the Bill would be removed. That would not be the case, and I wish to explain why.

The reason why I supported the 1967 Act was that it struck a proper balance between the interests of the mother and the other children of the family and the interests of the foetus. I thought that the preservation of a proper balance was morally correct. I do not see that it is right to destroy the life of the foetus at the will of the mother. Equally, I do not see that it is right to put at risk the health of the mother and the other children without serious consideration being given to their interests.

It seems to me that a proper balance is one of probabilities between those interests. We left that balance in the 1967 Act. When we included the word "substantially" in the Bill we moved sharply towards the interests of the foetus and against the interests of the mother and the other children being considered. That is why I do not feel that I can allow the Bill to go through without expressing the strongest opposition to it.

In this clause it seems to me that we are trying to go back a little way only. It is ludicrous to assert, as some hon. Members have, that because doctors are saying that the pattern of pregnancies in the past has shown that there is a 51–49 chance that the presence of a particular rubella will lead to deformity in the child or that a blockage of the passage may cause the death of the mother, it is necessary for us to include the word "substantially". I do not believe that that is how doctors work. To meet that fear, the amendment seeks to provide that even though that was the pattern of past events, the presence of a rubella or a blockage in the passage would provide a supervening factor.

It would not be enough in such a case for the prosecution in an action against a consultant to call a doctor to give evidence to the effect that on past records the foetus or the mother were all right in 51 per cent of the cases, or even in 60 per cent. of the cases. The consultant who was on trial would be able to say that the clinical indications were that the life of the mother was in danger or that there was a risk to the health of the unborn child.

Dr. M. S. Miller

In any case, the statistics would not apply in the way that my hon. Friend is suggesting that the sponsors of the Bill would make them apply. The statistics would not generalise. They would have to apply under a whole series of conditions in respect of each mother—how many children she had had, any physical or mental conditions from which she might be suffering, and so on. There would be a balancing of the dangers of these conditions one against the other. In other words, every time a doctor made his decision he would do so not on the basis of general statistics, but on the basis of the mother whom he was attending.

Mr. Lyon

I think that that is right. I have already explained that I believe that allowing "substantially" to remain in the Bill has probably done irremedial damage. I am sure that when doctors make their decision they do so on the basis of the facts of the individual patient. I am sure that they do not consider the statistical balance, as some hon. Members fear. The mere fact that one propagandist for abortion has said that he does consider the statistical balance does not mean that that is what doctors generally do.

Mr. Archer

Does my hon. Friend agree that the fallacy of that approach is analogous to arguing that most people die in bed, and that therefore is it safer to climb Mount Everest than to go to bed?

Mr. Lyon

I agree with my right hon. and learned Friend, but I also agree with my right hon. and learned Friend the Member for Dulwich (Mr. Silkin), that if a consultant carried out an abortion on the basis of a statistical balance he would be legally in the wrong and could be prosecuted. The mere fact that there have been very few prosecutions since 1967 does not mean that that approach is not wrong. Some doctors have asserted that the right of the mother to claim an abortion is pre-eminent, but that does not mean that that is the law. Any medical practitioner who conducted an abortion on that basis would be in breach of the 1967 Act and would therefore be guilty of an offence under the 1861 Act. The mere fact that people make these assertions does not mean that they are in accordance with the law. We ought to consider what the law was and what it will be if we pass the Bill in this form.

I therefore come back to the argument for the amendment. It would get rid of any suggestion that mere statistical balance is the only factor that is required. It would not get away from the argument that the judgment exercised by consultants involves a statistical balance. The last time that we discussed the Bill on Report the Minister argued that leaving in "substantially" would mean abandoning the statistical balance argument completely. That is nonsense. There must be some judgment of the risk to the life or health of the mother or the children of the family, and that involves, to some extent, such a balance.

No doctor of integrity will carry out an abortion if the risk to the life of the mother is 1 per cent., because that would be a minimal risk. That balance will be present in the doctor's mind when he forms his judgment. The statistical balance is therefore present.

10.45 am
Dr. M. S. Miller

My hon. Friend has already put his finger on the point of contention between us. He believes that a risk of 1:99 is not substantial. I would consider that risk to be very great from the mother's point of view.

Mr. Lyon

I do not know how my hon. Friend can suggest that a risk of 1:99 is substantial. There must be a serious risk before the abortion can go ahead, and that must involve some statistical balance. The point is that, if the word "substantially" is included, the seriousness of the risk goes up proportionately. Everyone is agreed about that. There is no point in putting the word in unless it means something, and the courts would say that it meant something and that Parliament had put it in for that reason.

I should like the Attorney-General to come to the House and deny that there is a statistical balance. It would be flying in the face of English law to say that, and I do not believe that he has said it. I think that the Minister came to the House the last time the Bill was on Report with a view to securing a little compromise and giving the sponsors something more than the 24 weeks' provision. He believes that if the Bill becomes law with the word "substantially" retained, it would not do much harm, but he fails to recognise that it will do a considerable amount of harm because it will put more women's lives at risk. I do not believe that it is morally right that, to satisfy the body of opinion that is sponsoring the Bill, more women's lives ought to be put at risk.

Mr. Ian Mikardo (Bethnal Green and Bow)

Of course that is a great risk and a terribly serious one. However, there is a second risk which, though less serious, is still significant. It is the risk to the careers of many doctors.

Mr. Lyon

I was going to end on that. All the arguments that I and my right hon. and learned Friend have put presuppose that we are standing in a criminal court, that we are arguing before a jury. We are presupposing that men of integrity who carried out their duty as they saw it under the Hippocratic oath have been brought into a criminal court to defend their integrity. We are saying that when they are in that position they may or may not have such-and-such a defence. However, it seems to be insufferable that they should be put in that position. It is absurd for us to adopt that approach on the basis that we are trying to protect ourselves against a doctor who likes to appear on television and talk about the statistical balance. We should not prejudice the future reputation and integrity of doctors in that way.

Of course that is not what the sponsor of the Bill intends. He does not intend that more doctors should end up in court; he intends that there should be fewer abortions. However, doctors will be frightened of the possibility of ending up in court, so they will sheer off from giving abortions. That is intolerably immoral. If, on the impartial and unbiased assessment of a woman's condition, a doctor thinks that it is right for her to have an abortion under the 1967 Act, he should not be frightened off because he thinks that he might find himself in court. That is an intolerable situation, and I am surprised that there should be a body of moral opinion in favour of it. I do think that the theology of St. Thomas Aquinas calls for that interpretation of the moral code.

I do not like the Bill, and even if the amendment is passed I shall not like it, but at least the amendment will make it a bit better than it is at present.

Mrs. Jill Knight (Birmingham, Edgbaston)

I shall comment on the amendment very briefly. I remind the House that one of the reasons why we are so often attacked by people outside is that we produce legislation that is virtual gobbledegook to the man in the street. This House, after clear and lengthy debates, decided that the word "substantially" should be left in the Bill. That was not a position arrived at purely to please the body of opinion that has sponsored the Bill. It was the decision of the House itself, which voted for the inclusion of the word.

I believe that the House voted in that way because at the time of the passage of the 1967 Act it was made clear to us that we should not have abortion on demand or request if the Bill were passed. In fact, that was the only reason why that Bill reached the statute book.

Mr. Ennals


Mrs. Knight

No, I am sorry, I have no intention of giving way. May I point out that on this subject, more than on any other, it is important that Parliament should make its will absolutely clear.

Mr. John Morris (Aberavon)


Mrs. Knight

No I shall not give way.

Mr. Morris


Mr. Speaker

Order. It is clear that the hon. Lady is not giving way. The right hon. and learned Member for Aberavon (Mr. Morris) must resume his seat.

Mrs. Knight

On this subject, above all others, it is important that Parliament should make its will clear to the doctors who will have to implement the Bill.

Mr. Archer


Mrs. Knight

No, I will not give way, and I wish to make it amply clear that I shall not give way to anyone in the course of my speech. I intended to be brief, and I shall be.

The word "substantially" was included in the Bill after a great deal of debate and after weighing up all the questions involved. Those who accuse the Solicitor-General of not giving his advice to the House should realise that he did give it at great length in Committee. They have only to read Hansard for our Committee proceedings on 4 December last.

Subsection (1)(b) says: (b) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of serious injury to the physical or mental health of the pregnant woman or any existing children of her family, substantially greater than if the pregnancy were terminated.". If someone reading the Bill then moves on to another part of it and finds that in certain circumstances doctors can make a decision as if the word "substantially" had been omitted earlier, that is pure gobbledegook gone mad. There is no doubt that the House was quite clear about the inclusion of the word "substantially" in subsection (1)(b).

Mr. W. Benyon

rose in his place, and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The House proceeded to a division

Mr. John Morris

(seated and covered): On a point of order Mr. Speaker. On the last occasion on which the issue of the word "substantial" arose, the Attorney-General was in his place when the motion for the closure was put. The closure has been moved again by the hon. Member for Buckingham (Mr. Benyon) and there has been no opportunity for the Attorney-General to give advice to the House. On this occasion no Law Officer has been present. Is not this a disgrace to the traditions of the House? Should not we be allowed to have legal advice on this question?

Mr. Speaker

That is a matter for the Attorney-General, not for me.

Dr. M. S. Miller

(seated and covered): On a point of order, Mr. Speaker. You indicated 20 minutes ago that you would not accept a closure until you heard a reply to the debate from the other side. Do I take it that the reply from the hon. Member for Birmingham, Edgbaston (Mrs. Knight) is regarded by you as being a true reflection of a reply to the debate itself? It certainly does not satisfy us. We do not feel that there has been an adequate reply. Is it your opinion, Mr. Speaker, that a speech such as that, lasting only two or three minutes from an hon. Member who did not permit any relevant intervention, was enough to satisfy us? I know that the hon. Lady is not necessarily obliged to give way, but surely during a reply to a serious debate we were entitled to put searching questions so that the hon. Lady could elaborate the points that she was making.

In addition, are we now departing from the tradition of allowing a debate of this importance to last for about two hours? This debate has lasted only one hour and five minutes.

Mr. Speaker

I shall deal with the last point first. There is no special time allotted to each different amendment. We have been discussing this amendment for

Division No. 222] AYES [10.55 am
Abse, Leo Fell, Anthony Morris, Rt Hon Alfred (Wythenshawe)
Alexander, Richard Fenner, Mrs Peggy Morrison, Hon Peter (City of Chester)
Alton, David Finsberg, Geoffrey Murphy, Christopher
Ancram, Michael Fisher, Sir Nigel Neubert, Michael
Atkins, Robert (Preston North) Fitt, Gerard Newton, Tony
Atkinson, David (B'mouth, East) Fletcher-Cooke, Charles Normanton, Tom
Baker, Nicholas (North Dorset) Fookes, Miss Janet Page, Rt Hon Sir R. Graham
Bennett, Sir Frederic (Torbay) Fraser, Peter (South Angus) Parry, Robert
Benyon, Thomas (Abingdon) Galbraith, Hon T. G. D. Patten, Christopher (Bath)
Benyon, W. (Buckingham) Gardner, Edward (South Fylde) Patten, John (Oxford)
Berry, Hon Anthony Garel-Jones, Tristan Pawsey, James
Bevan, David Gilroy Goodhart, Philip Percival, Sir Ian
Biggs-Davison, John Greenway, Harry Pollock, Alexander
Blackburn, John Griffiths, Peter (Portsmouth N) Powell, Rt Hon J. Enoch (S Down)
Boscawen, Hon Robert Hamilton, James (Bothwell) Proctor, K. Harvey
Boyson, Dr Rhodes Harrison, Rt Hon Walter Rathbone, Tim
Braine, Sir Bernard Hawksley, Warren Rees, Peter (Dover and Deal)
Bray, Dr Jeremy Hayhoe, Barney Rhys Williams, Sir Brandon
Brlnton, Tim Henderson, Barry Ross, Wm. (Londonderry)
Brotherton, Michael Hogg, Hon Douglas (Grantham) St. John-Stevas, Rt Hon Normar,
Bruce-Gardyne, John Hunt, David (Wirral) Shersby, Michael
Cadbury, Jocelyn Johnson Smith, Geoffrey Silvester, Fred
Campbell-Savours, Dale Jopling, Rt Hon Michael Smith, Cyril (Rochdale)
Canavan, Dennis Knight, Mrs Jill Speed, Keith
Carlisle, Kenneth (Lincoln) Lambie, David Stainton, Keith
Churchill, W. S. Lang, Ian Stanbrook, Ivor
Clark, Hon Alan (Plymouth, Sutton) Langford-Holt, Sir John Steel, Rt Hon David
Clark, Sir William (Croydon South) Lloyd, Peter (Fareham) Steen, Anthony
Clegg, Sir Walter Loveridge, John Stewart, John (East Renfrewshire;
Cohen, Stanley Mabon, Rt Hon Dr J. Dickson Tebbit, Norman
Cope, John McCartney, Hugh Thomas, Rt Hon Peter (Hendon S)
Cormack, Patrick McCrindle, Robert Thorne, Neil (llford South)
Corrie, John McCusker, H. Tinn, James
Costain, A. P. McElhone, Frank Trippler, David
Cralgen. J. M. (Glasgow, Maryhill) McGuire, Michael (Ince) Urwin, Rt Hon Tom
Dalyell, Tam McKelvey. William van Straubenzee, W. R.
Dempsey, James MacKenzie, Rt Hon Gregor Wakeham, John
Dewar, Donald McQuarrie, Albert Waller, Gary
Dixon, Donald Maguire, Frank (Fermanagh) White, James (Glasgow, Pollock)
Douglas, Dick Marlow, Tony Whitney, Raymond
Dover, Denshore Marshall, David (Gl'sgow,Shettles'n) Wickenden, Keith
Eadie, Alex Marshall, Dr Edmund (Goole) Willey, Rt Hon Frederick
Eggar, Timothy Marten, Neil (Banbury) Winterton, Nicholas
Elliott, Sir William Martin, Michael (Gl'gow Springb'rn) Young, Sir George (Acton)
English, Michael Mates, Michael
Ewing, Harry Mellor, David TELLERS FOR THE AYES:
Eyre, Reginald Moate, Roger Mr. Vivian Bendall and Mr. Ian Campbell.
Fairgrieve, Russell Montgomery, Fergus
Allaun, Frank Conlan, Bernard Field, Frank
Archer, Rt Hon Peter Cook, Robin F. Flannery, Martin
Atkinson, Norman (H'gey, Tott'ham) Cowans, Harry Fletcher, L. R. (Ilkeston)
Bagier, Gordon A. T. Crowther. J. S. Fletcher, Ted (Darlington)
Barnett, Guy (Greenwich) Cryer, Bob Foot, Rt Hon Michael
Benn, Rt Hon Anthony Wedgwood Cunningham, George (Islington S) Forman, Nlgei
Bennett, Andrew (Stockport N) Davis, Clinton (Hackney Central) Forrester, John
Booth, Rt Hon Albert Davis, Terry (B'rm'ham, Stechford) Fraser, John (Lambeth, Norwood)
Boothroyd, Miss Betty Deakins, Eric Freeson, Rt Hon Reginald
Bottomley, Rt Hon Arthur (M'brough) Dean, Joseph (Leeds West) Freud, Clement
Brocklebank-Fowler, Christopher Dobson, Frank Gardiner, George (Reigate)
Brown, Hugh D. (Provan) Dormand, Jack Garrett, John (Norwich S)
Brown, Ronald W. (Hackney S) Dubs, Alfred George, Bruce
Brown, Ron (Edinburgh, Leith) Dunwoody, Mrs Gwyneth Glyn, Dr Alan
Buchan, Norman Dykes, Hugh Graham, Ted
Budgen, Nick Eastham, Ken Grant, John (Islington C)
Callaghan, Jim (Middleton & F) Edwards, Robert (Wolv SE) Hamilton, Hon Archie (Eps'm&Ew'll)
Carmichael, Neil Ennals, Rt Hon David Hardy, Peter
Carter-Jones, Lewis Evans, loan (Aberdare) Hart, Rt Hon Dame Judith
Cartwright, John Evans, John (Newton) Heffer, Eric S.
Cocks, Rt Hon Michael (Bristol S) Farr, John Holland, Stuart (L'bath, Vauxhall)

one and a quarter hours. The hon. Lady took six minutes to reply, and her reply was given on behalf of the sponsor of the Bill. I then accepted the closure.

The House having divided:Ayes140,Noes 147.

Homewood, William Morton, George Spearing, Nigel
Hooley, Frank Moyle, Rt Hon Roland Spriggs, Leslie
Huckfield, Les Needham, Richard Squire, Robin
Hughes, Robert (Aberdeen North) Newens, Stanley Stallard, A. W.
Hunt, John (Ravensbourne) O'Neill, Martin Stoddart, David
John, Brynmor Orme, Rt Hon Stanley Strang, Gavin
Kerr, Russell Owen, Rt Hon Dr David Straw, Jack
Kilroy-Silk, Robert Palmer, Arthur Taylor, Mrs Ann (Bolton West)
Knox, David Park, George Thomas, Dafydd (Merioneth)
Leadbitter, Ted Parker, John Thomas, Mike (Newcastle East)
Leighton, Ronald Powell, Raymond (Ogmore) Thomas, Dr Roger (Carmarthen)
Lestor, Miss Joan (Eton & Slough) Price, Christopher (Lewisham West) Tilley, John
Litherland, Robert Race, Reg Townsend, Cyril D. (Bexleyheath)
Lofthouse, Geoffrey Radice, Giles Viggers, Peter
Lyon, Alexander (York) Rees, Rt Hon Merlyn (Leeds South) Walker-Smith, Rt Hon Sir Derek
McDonald, Dr Oonagh Rhodes James, Robert Ward, John
McKay, Allen (Penistone) Richardson, Jo Weetch, Ken
McWilliam, John Roberts, Gwilym (Cannock) Wells, Bowen (Hert'rd & Stev'nage)
Magee, Bryan Rooker, J. W. Welsh, Michael
Marland, Paul Ross, Stephen (Isle of Wight) Wheeler, John
Marshall, Jim (Leicester South) Ryman, John Whitlock, William
Mason, Rt Hon Roy Sever, John Winnick, David
Maxton, John Sheerman, Barry Woolmer, Kenneth
Maynard, Miss Joan Shore, Rt Hon Peter (Step and Pop) Wrigglesworth, Ian
Mikardo, Ian Short, Mrs Renée Wright, Sheila
Miller, Dr M. S. (East Kilbride) Silkin, Rt Hon John (Deptford)
Mitchell, Austin (Grimsby) Silkin, Rt Hon S.C. (Dulwich) TELLERS FOR THE NOES:
Mitchell, R. C. (Soton, ltchen) Silverman, Julius Mr. William Hamilton and
Morris, Rt Hon John (Aberavon) Soley, Clive Mr. Stan Thorne.
Morrison, Hon Charles (Devizes)

Question accordingly negatived.

Mr. John Morris

By that last vote the House has demonstrated that it will not put up with the intolerant attitude of the hon. Member for Birmingham, Edgbaston (Mrs. Knight), who gave what purported to be a reply to that debate. As a result of the attitude exemplified in her speech and her refusal to give way to hon. Members who wished to intervene, she has jeopardised the whole Bill.

I make that clear because so far I have voted in favour of every closure motion with the exception of the one moved on the last occasion that we discussed the Bill, relating to the amendment to delete the word "substantially". I voted against that closure, as I did against this most recent one, because the Attorney-General was present on that occasion and failed to respond to the wishes expressed to him by hon. Members on both sides that he should give the House the benefit of his advice.

On this occasion there has been no Law Officer here and we have not had the advice to which the House is entitled on such an important matter. The hon. Member for Edgbaston said that Parliament would not wish to foist on the country legislation that amounted to gobbledegook, but that is precisely what we are doing, and that is why we are entitled to have the advice of a Law Officer on the Floor of the House for those of us who have not been taking part in the debate or have not been following the matter as closely as we should. We are entitled to that advice in order to ensure that legislation does not become gobbledegook.

On the last occasion that we discussed the words "serious" and "substantially", the Minister for Health told us—the hon. Member for Edgbaston is wise to leave the Chamber at this point, because her whole attitude has jeopardised the Bill—that: If the House feels that there should be some change to make this clear, my advice is that that would be best achieved by the addition of the word 'substantially' alone. That does not go far in advising the House whether the word should be included. The hon. Gentleman continued: It is not neccssary to include both the word serious' and the word 'substantially'. I have discussed this with my right hon. and learned Friend the Attorney-General and this is also his view. Therefore if hon. Members feel that some change should be made they should support amendment No. 4 and oppose amendment No. 6."—[Official Report, 29 February 1980; Vol. 979, c. 1726.] At that juncture the Attorney-General should have been here. My right hon. and learned Friend the Member for Warley, West (Mr. Archer) said: As I understand it, I was being asked 'If a doctor answered the question honestly, could he be sure that he would not find that he had committed a criminal offence?' I do not believe that there is a lawyer in the House who would confidently advise the doctor that the answer to that question was in the affirmative." —[Official Report, 29 February 1980; Vol. 979. c. 1732.] That is the difficulty and the danger of allowing through legislation that will become gobbledegook.

The hon. Member for Windsor and Maidenhead (Dr. Glyn) made precisely that point on a point of order during a Division. He said: Is it in order for the amendments to go through without the Attorney-General having given us on the Floor of the House, a definition of the word 'substantially' so that we could consider the effects that it would have on the Bill if we voted for them? "—[Official Report, 29 February 1980; Vol. 979. c. 1735.] In those circumstances it is contrary to the traditions of the House that we have not been given advice on how the Bill stands and what would be the effect of the amendment moved by my right hon. and learned Friend the Member for Dulwich (Mr. Silkin).

We are not having an academic discussion in the House or on television; we are concerned with the situation that judges will face in giving their view to a jury on the state of the law. I find it difficult to understand how judges could clarify the situation and make it abundantly clear to a jury, either with or without the amendment—though perhaps the situation would be eased a little if the amendment were passed. The doctor would be facing not a television trial but a real trial, and his professional future would be in jeopardy. The Bill amounts to nothing less than gobbledegook.

Mr. Clinton Davis (Hackney, Central)

I am ad idem with my right hon. and learned Friend on the points that he is making, but is he aware that on other major Bills going through Committees the Law Officers have declined, when requested, to give legal advice on matters of great importance? It is not uncharacteristic of them to refuse to do so in this instance. Does it perhaps reflect on their competence or their confidence in their ability to advise?

Mr. Morris

I am grateful for that intervention. I shall not seek to comment on confidence or competence, but I have noticed the tendency of the Law Officers to refuse to explain to the House the effect of legislation. The House is entitled to the views of the Law Officers so that we do not send legislation from the House that is not comprehensible or fair and that puts the medical profession in grave difficulty. I fully support the comment of my right hon. and learned Friend the Member for Warley, West that it will be difficult to give advice in present circumstances.

A doctor will have to take a professional view, knowing that if he errs, when the law is uncertain, he may face a criminal trial. In those circumstances the House is entitled to have the advice of the Law Officers before it proceeds further.

11.15 am
Mr. Neil Kinnock (Bedwellty)

On a point of order, Mr. Speaker. I hesitate to interrupt this important debate, but we have passed 11 o'clock—the hour that the House has appointed for ministerial statements to be made on Fridays. Have you received any intimation from the Government or the Department of Education and Science that a Minister intends to make a statement today on the conseqences of the spectacular defeat that the Government suffered on an important clause of the Education (No. 2) Bill in another place last night?

Mr. Speaker

I have received no request, otherwise at this stage I would have called a Minister to make a statement.

Mr. Kinnock

Further to that point of Order, Mr. Speaker. I am not seeking to press you, because I know that you have no responsibilities, direct or indirect, in this matter. However, the matter is of immense importance to local education authorities, to parents who may be faced with charges and, obviously, to children trying to get to school.

We are near the end of the financial year and therefore it is a matter of considerable urgency. The proceedings of the House on a Friday deny us the opportunity, for reasons of which we are all aware, to raise the matter under Standing Order No. 9, and therefore I hope that a statement will be forthcoming; otherwise we shall have no alternative but to seek to raise the matter, even after the passage of three days, under Standing Order No. 9 on Monday.

Mr. Speaker

I have allowed the hon. Gentleman to make his point, which was at least an interlude in the rest of the business.

Dr. Glyn

I shall be brief. I raised the whole question of the word "substantially" on the last occasion that we debated the Bill and I shall base my remarks on that point.

I supported the Second Reading, and it was the will of the House that we should have a compromise at 24 weeks. The House has been brought into disrepute by continual long debates and I should like to see a compromise on 24 weeks, and machinery to put on the statute book the clear will of the House.

I regret that the Law Officers have not come to the House to explain the implications of the amendment moved by the right hon and learned Member for Dulwich (Mr. Silkin), who is a former Law Officer.

I make no apology for having resisted the closure. I considered that the amendment was so fundamental to the Bill that we needed at least a Minister to explain to us the consequences of the amendment. That is not an unreasonable request.

Mr. Ennals

The hon. Gentleman and I have taken similar points of view in several respects. Does he agree that in the absence of a Law Officer—and since the statement of the Minister of Health in the last debate was very brief and did not explain the matter fully—it would be helpful if perhaps the Under-Secretary of State for Health and Social Security were to give a more detailed explanation?

Dr. Glyn

I am grateful to the right hon. Gentleman for that intervention. The closure was moved without the House having had the benefit of an explanation, either from the Government or from the Law Officers, of the effect of the amendment. I listened to the debate with considerable interest. The right hon. and learned Member for Dulwich was very generous in giving way, but I was still not entirely convinced that his amendment would have the effect of removing the word "substantially".

The arguments on this matter are fundamental to the whole Bill. I do not want to go over the ground that has been covered by opponents of the Bill, or to mention the difficulties in which a doctor could be placed, but it was because of those difficulties that I voted against the inclusion of the word "substantially". The question is of great importance to the medical profession, to patients, and to the public. I therefore took the view that it would be better to truncate the Bill in order to allow it to proceed, with the change to a period of 24 weeks, accepting that parliamentary time is limited and that we cannot go on discussing the Bill week after week.

If the Bill does not get through we shall be faced with yet another abortion Bill. That is bound to happen. Since it is quite clear that the House is prepared to compromise, I should have thought that the right thing to do was to accept the Bill in a truncated form. My hon. Friend the Member for Buckingham (Mr. Benyon), if I may say so with great respect, moved the closure a little too early—

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

Order. The right thing to do is to address remarks to the amendment that is now under discussion.

Dr. Glyn

I am trying, Mr. Deputy Speaker, to say that I should like to hear the views of one of the Law Officers of the Crown on the amendment, before voting on it. If we pass the amendment and the Bill later becomes nonsense, we shall look rather foolish. That is why I want to hear the views of a Law Officer. We must have a proper opinion on it. If we were to be given information that was sufficient to allay the fears that many hon. Members have about the word "substantially" I should be perfectly happy to let the amendment go through and to proceed as rapidly as possible with the passage of the Bill, but until we have had that advice we cannot possibly come to a proper decision.

I raised the matter, on a point of order, early in the previous debate, because I realised that this would be the main stumbling block in the whole Bill. I believe that most of us, whatever our views, would prefer to see the Bill passed in a truncated form. There is a consensus that the period of 24 weeks is right; indeed, we compromised on that issue. Some hon. Members preferred a period of 20 weeks and others 28 weeks, but in the end we came to a sensible conclusion. I cannot understand why we cannot also come to a sensible conclusion on the word "substantially". Possibly the word could be removed in another place.

The right hon. and learned Gentleman's amendment is complicated. I am not a practising barrister and it is difficult for me to understand the effect of it. I hope, therefore, that before we vote on it we shall have the advice of the Law Officers.

Mr. S. C. Silkin

I agree with the hon. Gentleman that we should have the advice of the Law Officers. I suggest that we want advice not merely on the point that he has raised but on the state of the Bill, in relation to the point that I raised earlier about the law covering the same subject twice in two different places.

Dr. Glyn

I am very grateful to the right hon. and learned Gentleman for his intervention. He has reinforced the point that I wanted to make. I want to know what would be the courts' interpretation of the word "substantially". I also want to know how the Bill would be affected if the amendment were passed. Although the right hon. and learned Gentleman was gracious enough to spend a considerable amount of time in explaining the consequences of it, I am still not satisfied, without an assurance from the Government and from the Law Officers, as to the exact effect it would have. That is why I repeat that the House is entitled to know what the effect would be before being asked to vote on the amendment.

For those reasons, I hope that the House will be sensible and try to bring the matter to a conclusion today, so that we may have the Bill on the statute book in a truncated form, in the way that I have already explained. I believe that that would be to the satisfaction of the House and of the country, and would avoid bringing the House into disrepute. We cannot go on arguing about a matter that is of fundamental importance. Whatever our personal views may be, we have shown that we are prepared to compromise. We should abide by the will of the majority of the House on this matter.

Mr. Archer

I confess that I am deeply disappointed by the reaction of the sponsors of the Bill to the amendment moved by my right hon. and learned Friend the Member for Dulwich (Mr. Silkin). In the course of our debate, the opinions of hon. Members have differed very substantially, but they have listened to the various arguments and shown the tolerance that is customary in this House. I felt, therefore, that the Bill might have reached the stage at which there almost began to be a meeting of minds.

My right hon. and learned Friend put forward his arguments for the amendment with great clarity. I do not think that anyone who heard him would suggest that he did not make a clear and convincing case. He may not have said all that there is to be said on the subject, and there may be arguments in the other direction, but surely the House was entitled to hear those arguments. Out of courtesy not only to my right hon. and learned Friend but to the House, one would expect those arguments to be presented, but the only hon. Member who rose to argue against the amendment was the hon. Member for Birmingham, Edgbaston (Mrs. Knight).

If I may say so without offence, she never for a moment directed her mind to the arguments that had been advanced. It was a profound disappointment to some of us. We had hoped, as my right hon. and learned Friend the Member for Aberavon (Mr. Morris) said, that we could have had the benefit of the advice of a Law Officer. At the very least, as the hon. Member for Windsor and Maidenhead (Dr. Glyn) suggested, we might have had the intervention of a Minister to give us some advice. But all that happened was that those sponsoring the Bill attempted to steamroller it through the House, irrespective of the arguments in favour of the amendment.

11.30 am
Mr. Abse

I am a sponsor of the Bill and I have given a clear indication, so my right hon. and learned Friend is being extravagant in suggesting that there are not responses to the amendment likely to come and still able to come.

Mr. Archer

I was about to exempt my hon. Friend from those censures, but if he says that responses may still come I can only say that the ground has not been well prepared by the reactions of the sponsors up to this point.

Mr. William Hamilton (Fife, Central)

Is my right hon. and learned Friend aware that my hon. Friend the Member for Pontypool (Mr. Abse) voted for the closure without attempting to take part in the debate?

Mr. Archer

I think that is right, but at least my hon. Friend the Member for Pontypool (Mr. Abse) suggested that there was a possibility of a compromise. If he had backed that statement with his vote, we might have been even more impressed, but I exempt him from what I said in general—that he had not directed his mind to what was said by my right hon. and learned Friend the Member for Dulwich.

Mr. S. C. Silkin

If my hon. Friend the Member for Pontypool (Mr. Abse) catches your eye, Mr. Deputy Speaker and puts into words the thoughts that he uttered during my remarks, I am sure that my right hon. and learned Friend will agree that nothing would please the House more.

Mr. Archer

Indeed, if between us we could coax our hon. Friend to his feet later, we should be delighted. For that reason, I would not want to say anything now that might exacerbate the element of bitterness that has arisen because of the reaction of the sponsors of the Bill.

Mr. W. Benyon

I approach the matter in exactly the same spirit as the hon. Member for Pontypool (Mr. Abse)—that we would need to hear the views, which we have not heard up to now, of those who have opposed the Bill from the word go. Their reaction to the amendment is vital.

Mr. Archer

I should have thought that the hon. Member would be the last to make such an intervention.

Sir Bernard Braine (Essex, South-East)

The right hon. and learned Gentleman is a fair man, and I was astonished to hear him say that the sponsors of the Bill are seeking to steamroller it through the House. He and the House know that the truth is that we have been prepared to sacrifice a substantial part of the Bill in order to protect the gains that we have already made in respect of the upper limit and strengthening the criteria —the two principles that have already been decided. The sponsors of the Bill were anxious—in the interests of reaching a satisfactory solution for all concerned—to proceed to a conclusion. It is the extremist opponents of the Bill who are not satisfied with that. Therefore, would the right hon. and learned Gentleman please allow that the sponsors have been ready for some time to accept a compromise in the spirit in which he himself is trying to address the House?

Mr. Archer

There are two comments —I hope that the hon. Gentleman will forgive me for making them—to which his intervention is open. First, an attempt at compromise by the sponsors would have been more convincing had it happened earlier, when it did not seem unlikely that the Bill would reach the statute book. Secondly, it would have been more convincing had the sponsors addressed their minds to the genuine problem that the amendment seeks to meet. It does not appear convincing when their reaction to that problem is simply to move the closure and seek to steamroller the Bill through, irrespective of the argument. I shall not labour the point, but if ever sponsors deserved to lose their Bill it is the sponsors of this Bill, after the way in which they have behaved this morning.

I shall not seek to repeat at length the arguments put forward by my right hon. and learned Friend the Member for Dulwich—he made them perfectly clear—but I wonder whether the hon. Member for Edgbaston was listening to him. She said that she was anxious that the House should not seek to put gobbledegook on the statute book. My right hon. and learned Friend explained that that is precisely what would happen if the Bill went forward in its present form. If that happens, the same problem will be dealt with on the statute book in two different places, with provisions that may be held to be inconsistent.

I was one of those who, with my right hon. and learned Friend the Member for Dulwich, had responsibility for five years for the condition of the statute book. We know that for one reason or another—because there was a late amendment, because there was not sufficient time, because someone perhaps wanted to use the statute book for cosmetic purposes—from time to time something reaches the statute book which later causes litigants a great deal of trouble. I must not complain—the legal profession does very well out of it—but it presents the courts with a real problem of construction.

The House is normally responsible enough, wherever possible, to try to ensure that that does not happen, but if the Bill proceeds unamended that is precisely what will happen. If the hon. Member for Edgbaston is anxious for us not to put gobbledegook on the statute book I hope that she will vote for the amendment, because that is the first thing that it seeks to achieve.

The second and quite independent reason for the amendment is to try to remedy the problem that I thought most hon. Members recognised when we debated the matter a fortnight ago. Like my right hon. and learned Friend the Member for Aberavon, I am still puzzled by the reasoning behind the insertion of the word "substantially". I am puzzled, first, because I do not think that there is a problem that it is designed to meet. Virtually every lawyer in the House who has spoken on this subject has agreed that if it is designed to meet what is called the statistical argument applied by a doctor, that argument in any event rests upon a misconstruction of the 1967 Act.

It represents in the first place a sheer error of logic, I should have thought, on any showing, because to apply statistics relating to a substantial undifferentiated group of things or people to a particular individual situation that we know is distinguished by certain factors is simply a fallacious approach. As I suggested earlier, it would be like arguing that since most people die in bed it is safer to climb Mount Everest than to go to bed. It would therefore be a logical fallacy. But we also know that it would be a misconstruction of the Act. If there were ever any doubt of that, we may be encouraged by the fact that the Lane committee came down clearly in favour of that construction.

It was therefore difficult to know to what it was that the insertion of the word was directed. For that reason, some of us would have welcomed the views of the Attorney-General, so that we could have known whether he thought that there was genuinely a problem.

Some hon. Members have done less than justice to what the Minister for Health said in the last debate. I have looked particularly carefully at his advice. He said: some hon. Members are anxious that the wording of the criteria should not be capable of a purely statistical interpretation". He did not say that in his view they were capable of that interpretation, still less that that was the correct interpretation. He went on: If the House feels that there should be some change to make this clear…it would be best achieved…"—[Official Report, 29 February 1980; Vol. 979, c. 1726.] So, in fairness, the Minister was not purporting to advise the House that that was the correct interpretation, or that there was a genuine problem.

Mr. Alexander W. Lyon

The Minister for Health gave direct advice that that problem could be overcome by leaving "substantially" in the Bill. Surely that advice was legally incorrect.

Mr. Archer

I agree with my hon. Friend. He put the proposition conditionally, but in a form that persuaded some hon. Members to vote in a different way.

Mr. S. C. Silkin

Is it not true that the unfortunate result of that advice is that he failed to draw to our attention the graver danger created by inserting that word?

Mr. Archer

I am sure that my right hon and learned Friend is right. His advice was not balanced advice. Even if one assumes that the statistical construction is possible and that it is adopted by a substantial number of doctors, I do not see how that deals with the problem. If it were to transpire, statistically that a substantially greater number of women incurred injury by continuing the pregnancy the word "substantially" would still not meet the problem. If there were a genuine problem—I do not believe that there is—that would not solve it.

But the matter was debated and the House decided that the word "substantially" should remain in the Bill. However, I am sure that those hon. Members who listened to that debate feel that a problem remains. My right hon. and learned Friend the Member for Aberavon referred to the risk involved. A doctor may arrive at a bona fide conclusion, but he runs the risk that it will be reconsidered by a jury. If that jury arrives at a different conclusion in good faith, he may find that he has committed a criminal offence. Doctors will therefore be reluctant to carry out abortions.

My right hon. and learned Friend has corrected the gobbledegook in the Bill. In addition, he has found a method of alleviating that problem. He has said that if the justification for keeping "substantially" in the Bill is to deal with the statistical approach it follows that if a doctor does not use that approach the word "substantially" is not needed. In those circumstances the word "substantially" should be taken out.

The hon. Member for Edgbaston seems to find this subject funny. Every hon. Member is entitled to his or her brand of humour, some of us believe that a problem exists. That problem could spell out tragedy for many people. We have not heard why my right hon. and learned Friend's solution to that difficulty is not viable. My hon. Friend the member for Pontypool said that this might form the basis of a compromise.

I was a little troubled about the drafting of the amendment. As I said earlier, it might give statutory recognition to the suggestion that the statistical approach was a proper construction of the 1967 Act, but having listened to my right hon. and learned Friend's explanation, I conclude that that is not a serious risk. Any court would understand that that is not what the House is saying. We have a responsibility to ensure that the Bill proceeds in a manner that is technically correct. There should be no obvious technical defects, and we have tried hard to meet the genuine problems that have arisen as a result of the last debate.

At the beginning of the debate I thought that in a spirit of tolerance we might have had a meeting of minds. However, I no longer believe that that is likely. The sponsors have made no move towards such a compromise. The House can only try to improve the Bill.

Mr. John Corrie (Bute and North Ayrshire)


Mrs. Renée Short (Wolverhampton, North-East)

Fancy that.

Hon. Members


Mr. Corrie

Opposition Members continually say that if we compromise we might get the Bill through. However, judging from the previous debate on this subject I am sure that if the word "substantially" remains in the Bill, there can be no compromise. The right hon. and learned Gentleman said that if we compromise and accept this amendment we shall reach an agreement. Perhaps that is so. However, the word "substantially" will still be left in the Bill and certain hon. Members are determined not to allow the rest of the Bill to be enacted. If I had an indication that there was some agreement between us, a compromise might be reached. However, it is obvious that certain Opposition Members do not wish to compromise on the rest of the Bill. There is therefore no point in compromising about this amendment. That is sad.

11.45 am
Mr. Archer

The amendment has been on the Notice Paper for some time. If the hon. Gentleman felt that there was room for compromise he should have said so earlier. We should ensure that if the Bill reaches the statute book it will include this amendment. In that way, some of the danger might be mitigated. But it would be better to ensure that it does not reach the statute book.

Sir Bernard Braine

I was puzzled by the remarks of the right hon. and learned Member for Warley, West (Mr. Archer) about the statistical argument. I listened to his remarks, just as I listened to those of the former Attorney-General, the right hon. and lerned Member for Dulwich (Mr. Silkin). His argument was well reasoned. The fact is, however, that it was not intended that the 1967 Act should provide abortion on demand. The principal author of that Act has said that on more than one occasion.

Mrs. Short

We do not have abortion on demand.

Sir B. Braine

I hope that the hon. Lady will do me the courtesy of listening to my argument. I have listened to every word that has been uttered. I wish to address my remarks to the former Solicitor-General.

Mr. Russell Kerr (Feltham and Heston)


Sir B. Braine

I repeat, it was never intended that there should be abortion on demand. The Lane committee examined the workings of the Act. It concluded that the Act was generally working satisfactorily, but it pointed out a number of serious abuses. Some doctors used the statistical argument in order to allow abortion on demand. Briefly the statistical argument is that it is marginally more dangerous for a woman to give birth than to have an abortion. However, one is not comparing like with like.

Mr. Archer


Sir B. Braine

During the debate it has not yet been pointed out that the statistical argument is phoney. It compares relatively healthy women who have abortions in the first trimester with those who are ill at the time of birth. Serious ill-effect from giving birth triggers off an existing maternal disease. The statistical argument compares them with others who die in childbirth or who suffer a miscarriage or experience some other serious ill-effect where giving birth triggers off an existing maternal disease. The comparison is not one of like with like. The argument was phoney, but it was used by some doctors. One must be fair. It was not used by many. The Lane committee said that that was wrong. The Select Committee also took evidence on that subject and subsequently said that it was wrong. Moreover, the medical profession—the BMA and the Royal College of Obstetricians and Gynaecologists—took the view when the Lane committee was sitting that there were great abuses and wished to have them stopped.

Mr. Archer

The Lane committee, having said that some doctors were using the approach that the hon. Gentleman has described, added that that approach was clearly wrong, that it was a misconstruction of the 1967 Act and that abuses of an Act are not prevented by amending legislation. It recommended that there should not be an amendment.

Sir B. Braine

That is correct. The Lane committee did not recommend legislation. However, the Committee having made its recommendations and reported, the situation of abuse continued. There was continued public anxiety. The Select Committee sat some considerable time after the Lane committee had reported. It followed the James White Bill. The House gave a substantial majority to that Bill on Second Reading, on the understanding that the Bill should be remitted to a Select Committee. At the end of the day the Select Committee, lead by a distinguished Privy Councillor from the Labour Party, recommended that there should be legislation. It recommended that the issue should be dealt with by legislative means. When nothing happened my hon. Friend the Member for Buckingham (Mr. Benyon) introduced his Bill, and when nothing happened after that we had the Bill which is now before us.

Dr. M. S. Miller


Sir B. Braine

I shall give way later. On both Bills the House gave on Second Reading a substantial majority to the principle that abortion on demand favoured by the application of the phoney statistical argument should be dealt with by amending the law. That is what we are talking about this morning. The House has already decided—I am sure that this was the reasoning behind the advice given by my hon. Friend the Minister for Health—that by the insertion of the word "substantially" the statistical argument could not be used.

The only argument that is left is whether there are other reasons than the statistical probability that should be weighed. The word "factor" is used in the amendment. Are there other reasons why we should accept the amendment and why we should not rely on the word "substantially" already in the Bill? I listened carefully to the former Attorney-General, the right hon. and learned Member for Dulwich (Mr. Silkin). I found it difficult to understand what other factors there could be. If, for example, we are concerned, as we should be, with the possibility of handicap, that is dealt with already.

I tried to make it plain at the outset of our debates that the Bill makes no alteration in that respect to the existing law. I was baffled, therefore, by the argument of the right hon. and learned Gentleman. It seemed that it was not carried through to its logical conclusion. As no reason had been given for the proposed change, I decided that I could vote in conscience for the closure, despite the fact that if the amendment had been tabled at an earlier stage and discussed in Committee I do not think that we would have been very worried about it. It is not a matter on which to go to the stake.

Mr. S. C. Silkin

I ask the hon. Gentleman to take it from me that after careful thought about the position in which the House found itself on 29 February I tabled the amendment at the earliest possible date. It has been on the Order Paper for a considerable time. It has been on it long enough for two conservative Members to add their names to it. If the hon. Gentleman had the doubt that he is now expressing about "factor", I am sorry that he did not intervene to ask me to elucidate. I would have explained to him that a factor must clearly be one of the factors contemplated by the original Act. This is an insertion into that Act.

Sir B. Braine

I follow that. There are two possible factors that would occur at once to a layman who was not particularly well informed about the contents of the Act or those of the Bill. First, a doctor must take into account a whole host of factors, one of the most important of which is that if the child is born it might be seriously handicapped. As I have explained, that is something out-with the Bill. The Bill does not seek in any way to alter the existing law.

Another important factor might be the social environment of the family and effect on the health and well-being of the other children. That would weigh heavily with those of us who understand the reality of the problem. There again, the Bill makes no alteration to the existing law.

I was looking for an additional factor —factor X or factor Y—and it does not appear. It is for that reason that I intervene to say that what matters to me is whether "substantially" ends the pernicious practice of abortion on demand, which the House never intended when it enacted the 1967 Act, I consider that it does.

Mrs. Renée Short


Sir B. Braine

The hon. Lady is an exception.

Mrs. Short

The hon. Gentleman has said twice that there is abortion on demand. Will he give the House the evidence that he has that that situation obtains?

Sir B. Braine

I do not need to do that. If the hon. Lady goes to the Library and studies the Lane committee's report, and while there if she also studies the report of the Select Committee, including the evidence that was given to it at considerable length, she will have the answer. The plain fact is that there are many doctors in this land who know perfectly well that the law is being broken. I have sent the evidence of one case to the Department of Health and Social Security. I am eagerly awaiting the Department's action. I am anxious to know whether the Department will act with the same alacrity about these cases—

Mrs. Short

Where is the Minister? Will he come and answer this?

Mr. Deputy Speaker (Mr. Richard Crawshaw)

The hon. Member for Essex, South-East (Sir B. Braine) appears to have resumed his seat. Will he indicate to whom he is giving way?

Mrs. Short

Come on, speak up.

Mr. Deputy Speaker

To whom is the hon. Gentleman giving way? I understood that he was giving way to someone.

Sir B. Braine

I was giving way to the hon. Member for Wolverhampton, North-East (Mrs. Short). However, I think that I have given the hon. Lady sufficient rope on which she may hang her argument. I shall leave it at that.

I say in conclusion that—

Dr. M. S. Miller


Sir B. Braine

The House has already made a decision on principle on the word "substantially". I do not understand why we continue to rehearse the argument over and over again. I accept the motives behind the argument of the right hon. and learned Gentleman. He is a fair-minded man and he puts before the House a reasoned argument. I tell him that the statistical argument that some doctors have been using for years—they have not been challenged because of the defect in the law—is phoney.

Dr. Oonagh McDonald (Thurrock)


Sir B. Braine

It is an argument that should not be adduced in this debate.

Dr. McDonald

Will the hon. Gentleman give way?

Sir B. Braine

I have already concluded.

Mrs. Short

On a point of order Mr. Deputy Speaker. We have had statements by supporters of the Bill and by its opponents, based on legal arguments for and against. We have asked repeatedly for a Law Officer to appear. That has not happened.

Mr. Deputy Speaker

Order. The hon. Lady is obviously about to ask a question, but she has already asked one that—

Mrs. Short


12 noon

Mr. Deputy Speaker

Order. The hon. Lady is forgetting herself. She has already asked one question that has nothing to do with the Chair. If her second question is posed in a similar vein, we shall just be wasting time.

Mrs. Short

Further to the point of order, Mr. Deputy Speaker. The hon. Member for Essex, South-East (Sir B. Braine) has made serious allegations about the way in which the Department is operating the Act. I think that the House ought to hear the views of the Minister.

Mr. Deputy Speaker

That is an interesting observation, but it has nothing to do with the Chair. Such allegations are on both sides of the House and are part of the debate.

Dr. M. S. Miller

I do not intend to intervene at any great length. I should just like to deal with several of the points made by the Member for Essex, South-East (Sir B. Braine). I always listen carefully to what the hon. Gentleman says. I remember the days when he was a junior Minister. I think that his attitude towards this matter was slightly different then from what it is today. He then paid great attention to what the British Medical Association felt, and I think that he still has a high regard for the medical profession. However, it ill becomes the hon. Gentleman to insinuate or imply that there is widespread abuse of an Act of Parliament. The hon. Gentleman appreciates that there is no perfect Act of Parliament. Regardless of what it is that we enact, there will always be loopholes for abuse, but one does not plug such loopholes by making it impossible or extremeley difficult for people who require the services to obtain them. The hon. Gentleman must accept that.

The hon. Gentleman talked about phoney statistics. That was a rather graphic way of describing what really applies to all statistics. He is right to suggest that the statistics could be phoney. I pointed out in an earlier intervention that a whole range of conditions is taken into consideration by a doctor. The general statistical argument is only one factor in the specific statistical indication that applies in any individual case. For example, if I were a gynaecologist who carried out abortions I would make a distinction between statistics in the case of a young healthy woman and those applying to an older woman. I would take into consideration not only the age of such patients but their history, as well as their physical and mental examinations.

A whole series of statistics is built up. It would be wrong—I am sure that it is wrong within the terms of the 1967 Act —for a doctor to perform an abortion under the cloak of the so-called general statistical rule. I certainly would play no part in that.

Like my hon. Friend the Member for York (Mr. Lyon), I do not think that the amendment is as good as leaving the original Act alone, but at least it would undo some of the potential damage that could be caused if the word "substantially" was left in. It would mean that in forming an opinion, a doctor would regard the word "substantially" as being omitted from the subsection. However, many other factors would be involved, because as I have indicated, each case is considered on its merits and on the condition of the individual patient.

I cross swords with my hon. Friend the Member for York on the question of a substantial risk. It is not always the case that a 1 in 100 risk of a patient dying is not a substantial risk.For example, in conditions of grave seriousness, such as a cancer operation, a 1 in 100 risk is not a big risk. It is a small risk, because the mortality rate from the condition is very high. But in other circumstances, a 1 in 100 risk is not an acceptable one. It might be too high a risk. All I am saying is that it is extremely difficult to arrive at any kind of yardstick by which this could be judged.

We are entering the realm of the doctor's clinical judgment, but whether one agrees with everything that the medical profession does is another story. However, such opinions interfere with clinical judgment, and that is the great problem with regard to the clause and what the amendment seeks to do. It is an extremely dangerous prospect from the medical point of view. I would hate to be placed in a situation in which, before I performed any kind of operation or gave advice to a patient, I would have to take legal advice first.

Legal advice does not relate to the medical risk, but rather to what the legal risk is. That could well apply in the case of a gynaecologist who refused to carry out an abortion because he did not think that the risk was substantial. I gave an example earlier of a woman with a moderate or even mild degree of high blood pressure. The gynaecologist might consider that the degree of high blood pressure was not sufficient to warrant the word "substantial". But what would happen if the woman died? By definition, it must have been substantial. If the patient's husband then raised an action against the doctor for not carrying out the abortion—and that is a situation that could well happen—the doctor would be placed in an extremely difficult position.

It would take only one such case for the gynaecologist to seek legal opinion, not on the medical aspect but on the legal aspect. The legal opinion would have to say "In my opinion the following is the lesser of the two legal risks, but it is up to you, as a doctor, to decide what the medical risk is". That is a Catch 22 situation. In such circumstances, I do not believe that a doctor should be placed in a different situation from that in which he is placed with regard to other operations. Surgeons per- form many extremely serious operations, such as heart, brain or kidney operations, but they are not subject to a law or regulation that says that the doctor must take other considerations into account. That is perfectly right.

The argument could be—this is the nub of the whole debate—that in this instance doctors are dealing with something entirely different. In this case we are dealing with people who are totally opposed to abortion. I do not accept that such people believe in abortion in certain circumstances. They do not want abortions at all. What they consider to be unborn life takes total precedence over anything else. I can appreciate that point of view, and I can understand that some people hold that conviction very deeply. They say that there are no circumstances whatever in which abortion is permissible. I can understand that, but they should not cloak that fundamental attitude in an aura of wanting to improve the Act, when they really want to destroy it.

Mr. Clive Soley (Hammersmith, North)

My hon. Friend has touched on the problem with regard to compromise. Some of us would have considered compromise, but what has hardened the minds of so many hon. Members is the cynical opportunism behind the attitude that my hon. Friend has described. I also have a great respect for people who say that abortion is an assault on life and that they are against it, just as they are against hanging. But when people try these cynical manoeuvres that we have seen one can only assume that it is a foot in the door, that they want to change the whole thing and return to the appalling situation that existed prior to 1967. That is what is so cynical and unacceptable about their argument.

Dr. Miller

I am grateful to my hon. Friend. He has touched on what is at the heart of many of the problems that we have been discussing for such a long time.

Sir Bernard Braine

The House is indebted to the hon. Gentleman for the considered view of a medical man about the difficulties facing doctors. We must pay heed to what he says. However, has he not left out of account the provision in the Act that the abortion is lawful if two registered medical practitioners are of the opinion, formed in good faith, that the pregnancy should be terminated? Is that not the defence?

Dr. Miller

I am grateful to the hon. Gentleman. As we have agreed previously, it is a mutual admiration society.

We have already had considerable differences of opinion on the question whether good faith is an objective or subjective assessment. The mere fact that there is debate about that is sufficient to put doctors off. I might be satisfied with the words "good faith" were it not that there are many people who would love to get at any doctor if the Bill went through in its original form. In view of the opposition to the 1967 Act, manifest over the past few years, there may be a certain amount of vindictiveness. The situation is slightly different from what it was. I do not accept that the words "good faith" are sufficient to protect the doctor.

I can understand the ethical aspect. I am not in favour of abortion on demand or request. I am not in favour of any operation on request. It should be for discussion between the patient, doctor and others concerned. Although I respect contrary views, I cannot see, in a matter affecting the life or health of my patient, that abortion differs substantially —if I may use the word—from any other condition that I am entitled to consider as a doctor. That may be a fundamental difference between me and those who consider that a regard for human life must apply from the very moment of conception. I respect their views, but I do not see it that way, and I believe that the vast majority of the people in the country agree with me.

Phoney statistics have been produced. I have a letter claiming that the statistics that I gave in an article can be matched with statistics to prove the opposite. It depends on the questions asked. If I were asked whether I believed in killing unborn babies, my answer would be "No". Some people say that abortion is killing unborn babies. That is another argument, and I do not agree with it.

The promoter of the Bill has been bemused by many of the machinations and debates from both sides of the House in the past few months. I respect his sincerity, but it is too late for him to claim that no compromise was ever on the cards. Had he contented himself with the 24-week limit there would have been no difficulty.

12.15 pm

The sponsors of the Bill were far too greedy. They were taken in by the confined, almost incestuous, attitude that people have when they do not see anyone else's view. They believe that the country is with them and that they have more support than they really have. We all fall into that trap from time to time. When 20 or 30 people shout something at us, we imagine that they represent millions.

From my experience in medical practice over a long period, in Parliament, and from representing two constituencies, I have no doubt that the vast majority do not agree. If one walks only among one's own kind and speaks to people with similar views one may get the impression that the majority agree. It ill behoves the hon. Gentleman to complain about lack of compromise at this stage.

This is a thoroughly bad Bill which would have a serious effect on patients and would increase the death rate from septic abortions. Women will die. They will have abortions whether or not they are legal. The Bill would have a thoroughly bad effect on the medical profession.

Mr Clement Freud (Isle of Ely)

Will the hon. Gentleman accept that after yesterday's fine example in the other place thoroughly bad Bills can be remedied?

Dr. Miller

That may be so, but it was said earlier that we should not depend on that. I am pleased that the other place reached the decision that it did on the other matter.

I am not entirely satisfied with the amendment, but it is better than what is in the, Bill at present. My right hon. and learned Friend the Member for Dulwich (Mr. Silkin) made an excellent speech, and clearly spelt out the position. The substance of his amendment would to some extent put matters right.

The promoter of the Bill is entitled only to the 24-week limit. Once the word "substantially" was permitted to slip in—

Mr. Mikardo

The hon. Member for Essex, South-East (Sir B. Braine) said that there was a desire on the sponsors' part to compromise, which was not accepted by us. I discussed with one of the most prominent sponsors of the Bill the possibility of the Bill's resting on the 24-week limit and nothing else. He said that he did not believe that he would be able to persuade his colleagues to leave out "substantially". That is where the attempt at compromise broke down, which indicates who is responsible.

Dr. Miller

I am grateful to my hon. Friend. I believe that the hon. Member for Essex, South-East has today adopted a slightly less hard attitude. The hon. Gentleman previously used such words as "might"—and said that the continuance of the preganancy might involve substantial risk or injury. The word is "would", not "might". It is all very well for the hon. Gentleman to use softer words, but in legislation we do not use "might". We use "would", which is different.

The amendment so ably advanced by my right hon. and learned Friend will help, and I support it.

Mr. Abse

I have already intimated in the intervention that I made during the speech in which my right hon. and learned Friend the Member for Dulwich (Mr. Silkin), the former Attorney-General, was spelling out his view that I had more than sympathy with the amendment that he had placed on the Order Paper. There are two goals in the minds of those who may have been supporters of the Bill that are becoming confused. One has to ask oneself whether there is a desire on the part of those who support the Bill to change the criteria. Secondly, one has to ask whether there is a desire, on the other hand, or in addition, on the part of others who support the Bill, to bring to an end the statistical argument.

I have always held the view, like the Select Committee, as the hon. Member for Essex, South-East (Sir B. Braine) has pointed out, that an argument was being deployed, however fallaciously, and however erroneous an interpretation of the law it may have been, to the effect that it was possible for a doctor to use the so-called statistical argument without fear of any action being taken by the law. That is a genuine belief. There was a fear that this argument was being deployed and a belief that it was being practised. It is true that there are few doctors or professors who would formally declare their view that the statistical argument justified an abortion in almost every circumstance, but they are known to exist.

Mr. William Hamilton


Mr. Abse

It was a view that was peddled and articulated, by however few people.

Mr. Hamilton


Mr. Abse

It meant that the Lane committee, although expressing its disapproval of the argument, was nevertheless compelled to express an opinion. When the Select Committee had to address its mind to the issue, it was abundantly clear that there was a view, on the evidence, although possibly expressed by only one professor, that this was being practised.

Mr. Norman Buchan (Renfrewshire, West)


Mr. Abse

I shall give way later. I should like to develop my argument. That opinion is in existence. There is a belief, however incorrect, that this enables abortion on request to take place within the existing law.

I have said from the beginning that we live in a plural society. The House has a duty to try to reconcile the conflicting views. Whether or not it is a belief that is well-founded, and whether it is practised only idiosyncratically by a small group, an opinion exists that because of this weakness within the law, it is possible for abortion on request to take place. If that opinion can be met without, in my view, affecting the criteria, it should be done. Others hold a different view. They want to alter the criteria. I have made clear by my interventions in this and many other debates that I believe that if the criteria were applied, as they were intended to be applied, this is the basis on which a plural society can live.

A considerable change has been made by using the word "substantially". I accept that. It was decided by the House. The House wanted that, I believe, because it wanted to end the statistical argument. Some people, no doubt, voted for it because they wanted to attack the criteria as well. I believe that the House voted for it in order to lay at rest the statistical argument. However, it has been pointed out that, apart from serious technical blemishes that arise in the Bill, as a result of "substantially" being left in, bare and in its nudity, and despite the technical consequences indicated by my right hon. and learned Friend the former Attorney-General, it is possible that it could subvert the criteria as well. It could go beyond what was the intention of most hon. Members, certainly of the Select Committee, and certainly the intention lying behind the Lane committee report that a statistical argument, in belief or in practice, should not continue.

Mr. Buchan

This is the second time that my hon. Friend has called in aid the Lane committee. Will he make clear that the Lane committee rejected that argument as fallacious and, furthermore, said that there should be no change in the criteria? He must not mislead the House.

Mr. Abse

The Lane committee made it clear that the argument was being deployed and believed that it was wrong. The committee therefore did not recommend any legislative change. As the hon. Member for Essex, South-East pointed out, after the Lane committee had reported the belief that the statistical argument could be deployed, or could protect anybody from being charged for any criminal offence in respect of the Abortion Act, was continued. As a result, when the evidence came before the Select Committee it came to the conclusion that the statistical argument had to be met by legislation but that the criteria were matters for the House.

Dr. M. S. Miller

Since the words "serious" and "substantial" affect the criteria, and since the objective, as my hon. Friend indicates, was to destroy the statistical argument as a basis for wholesale abortion on demand, would it not have been better to have produced an amendment that embodied that kind of fear, using the word "statistical" and making it incumbent upon the medical profession to indicate that it would not be permitted to use the whole general field of statistics, but had to apply the statistics in the particular instance in which it was operating?

Mr. Abse

The original Bill, even this Bill, contained the word "substantially" The word "serious" was inserted in Committee, but, happily in my view, was deleted by the House when the Bill came back. My hon. Friend criticises the lack of clarity in the attempt to identify the statistical argument. I did not serve on the Standing Committee, but, having read the proceedings and heard the speech of the Minister, I would point out that this was the argument of the Minister. The Minister made it abundantly clear that, should there be such a statistical argument— the words have been cited already —he, the Minister, believed that the word "substantially" dealt with the mischief. It creates certain other mischiefs that have been pointed out by my right hon. and learned Friend the former Attorney-General.

Like every sensible man and woman in the House, I wish to bring this debate to an end. I treat seriously the view put forward by my right hon. and learned Friend. What is the fear in the minds of the sponsor and the hon. Member for Essex, South-East that justifies not accepting the amendment?

Dr. Glyn

Is not the only possible solution to remove the word in the House of Lords?

12.30 pm
Mr. Abse

My right hon. and learned Friend the Member for Dulwich has tried to deal with the problem sensibly. I share the dismay of my right hon. and learned Friend the Member for Aberavon (Mr. Morris) at the fact that there should be such silence on the Government Front Bench. I believe that to be most reprehensible. However, as a lawyer I have more confidence in the law of my right hon. and learned Friend the former Attorney-General than that of the present Attorney-General.

Mr. Deputy Speaker

I know that the hon. Member for Pontypool (Mr. Abse) is speaking in good faith, but it has been indicated to the Chair that the Government spokesman would like to contribute to the debate when the hon. Member resumes his seat.

Mr. Abse

I shall try to come to a conclusion. The hon. Member for Essex, South-East and others ask what factors could come into existence other than those that are already laid down. The House must understand that the amendment seeks to make quite clear that the word "substantially" is directed not to the criteria, but only to the statistical argument, and that the factors to which it refers are those that are contained within the criteria. That is how my right hon. and learned Friend the Member for Dulwich interprets his amendment. Does it achieve that effect? Does it give us an end to the statistical argument, as the majority of hon. Members want, without an assault on the criteria? believe that it does.

Perhaps the amendment can be improved. We are not helped by the absence of the Attorney-General. Perhaps a parliamentary draftsman could improve it. However, I am certain that the amendment clearly deals with the statistical argument. It does not subvert any of the existing criteria. Even if the Minister cannot accept the amendment categorically, he should leave it to the will of the House. Let him say that the arguments are complex, but that they have been heard. Let the House decide, without the Minister laying his emphasis on the argument. The Minister has had a maturational experience, which has been shared by everybody who has taken part in an abortion Bill. It would be wise to let the House decide.

Let us remember that there will have to be another Bill if we do not use this Bill to bring the controversy to an end. The 24-week limit has been decided by the House. My right hon. and learned Friend the Member for Dulwich, who has been so skilful in the interpretation of the Bill, nods his head. If we do not pass the Bill, another one will have to be considered because we must deal with the 24-weeks. We do not want to have the argument all over again. I appeal even to those with most impassioned views on either side of the argument to accept the amendment because, with the 24-week provision, that will result in an Act in which honour can be done on all sides. [HON. M1MBERS: "No"] The 24-week issue has been decided. Let us use the opportunity to end the argument and bring the Bill to the statute book, rather than interminably continue such joyless proceedings.

The Under-Secretary of State for Health and Social Security (Sir George Young)

My hon. Friend the Member for Essex, South-East (Sir B. Braine) referred to an incident about which he has written to my Department. We are examining that matter urgently.

The right hon. and learned Member for Dulwich (Mr. Silkin) is correct in saying that the provision for termination in emergencies will not be required in section 1 of the Act as well as in clause 2 of the Bill. I am advised that in any case the existing provision in section 1(4) of the 1967 Act, unlike the new provision in clause 2 of the Bill, will not apply after an upper time limit of 24 weeks. That would be unsatisfactory as there would be two provisions covering broadly the same ground. However, that can be put right in another place.

Dr. Glyn

If the amendment is altered in another place will the Minister be satisfied?

Sir G. Young

I shall come to that in a moment.

I turn to the substance of the amendment. When the Minister of State spoke about the criteria he made it clear that he had in mind the anxiety of some hon. Members that the criteria should be capable of a statistical interpretation. Accordingly, he advised that if they wished to deal with that they should vote for the retention of the word "substantially". My right hon. and learned Friend the Solicitor-General gave evidence to the Standing Committee on 4 December, so the House has had his advice on the use of the word "substantially".

The amendment seeks to make clear that the intention of the change is to ensure that the statistical argument cannot be employed. I hope that it will meet the anxiety of the medical profession over the legal interpretation of the word "substantially" in that context. If the amendment is carried the intention of the House will be made clear and the Bill will not be gobbledegook, although some technical amendments might have to be made in another place. Broader issues have been raised about the way in which the House should proceed. The implications are clear, and hon. Members do not need my advice on that.

Dr. Glyn

I beg to move, That the Question be now put.

Mr. Deputy Speaker

I cannot accept that motion at present.

Mr. Mikardo

I express my personal gratitude to my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) because a great deal of deep thought obviously went into the framing of the amendment. My right hon. and learned Friend guided our unsure feet carefully through the minefield of the subject's legal complications.

I share the disgust—that word is not too strong—of my hon. Friends at the absence of the Attorney-General. At our last sitting be allowed the Minister to be his microphone without standing behind it himself. Because of a decision taken at our last sitting we need clarification about the consequences of accepting the amendment.

It is most reprehensible that the Attorney-General is not here today. Perhaps he has stayed away because he does not like the Bill. He did not vote for it on Second Reading. As I understand it, the duties of a Law Officer are to help the House impartially both about the things that he likes and those that he does not like. Even if the Attorney-General does not like this Bill, that is no excuse for his not coming here to assist the House.

I support the amendment of my right hon. and learned Friend the Member for Dulwich for reasons that I have advocated throughout the proceedings of the Bill. My reasons are that I believe that doctors should have the discretion to exercise their clinical judgment and that any attempt to hedge round the exercise of that judgment does not make life easy either for doctors or their patients and it is the patient for whom we should have the greatest care. If we attempt to curtail that discretion there is a little more profit for the lawyers but life is made harder for doctors and patients. That happens every time we try to put an arbituary limitation on the judgment of the doctor.

We should recall that the views of two doctors are required in this context and that those views must be exercised in good faith. There is a double safeguard; there are two doctors and they must both act in good faith. When we attempt to put artificial constraints on doctors—in language universally condemned as obscure—we are being unhelpful.

I fully understand why the hon. Member for Birmingham, Edgbaston (Mrs. Knight) did not wish to give way to hon. Members who wished to intervene during her speech. When one has had too much to drink before driving one does not wish to wind down the window when the "copper" comes along. One does not wish to be caught out. The hon. Lady knew that she was in danger of being caught out if she gave way when she referred to the language in the Bill as being gobbledegook. In so far as there is gobbledegook in this Bill it is the fault of the sponsor. The Bill is not a big Bill, but in Committee the sponsor himself admitted that no fewer than seven clauses were so badly drafted that they were incapable of amendment. They had to be taken out and redrafted.

There was an eighth clause, which was found by the opponents of the Bill to be out of order as being beyond the scope of the long title. It had to be put in order by an amendment moved by the Opponents of the Bill. We all regretted that the sponsor of the Bill fell ill, but before the hon. Gentleman became ill he said that he intended to rip out clause 4 and replace it with a new clause. That was because the first clause 4 was gobbledegook. He did not use that word, but that is what he meant. He felt that the wording was no good, and he intended to seek the advice of the Department in order to draft a new clause 4 that was not gobbledegook.

Unhappily the hon. Gentleman became ill and the Bill was left in the care of his lion. Friends. They liked the gobbledegook and did not want the sponsor's new clause 4. There was a classic occasion when the Committee was due to meet but could not do so because there was not a quorum. Hon. Gentlemen were arguing amongst themselves and were unable to agree which clause 4 they wished to discuss. The result was that they did not go into Committee at all. It therefore lies ill in the mouths of those hon. Members who support the Bill—least of all in the mouth of the hon. Member for Edgbaston—to talk about other people being responsible for putting gobbledegook into the Bill.

I hope that something can be salvaged of this wreck along the lines suggested by the hon. Member for Windsor and Maidenhead (Dr. Glyn) and by my hon. Friend the Member for Pontypool (Mr. Abse). Talks were held at an early stage designed to produce a Bill that would meet the general will of the House as expressed in a statement by five Privy Councillors and as has been expressed by other people inside and outside this House. That attempt at a compromise broke down because some of the supporters of the Bill, though not all of them—there are hawks and "wets" among the Bill's supporters as there are in the Government—were unwilling to give up the word "substantially". That was when the compromise attempt broke down.

12.45 pm

We must now ask ourselves whether an acceptance of the Bill with the amendment of my right hon. and learned Friend is a real solution. Some hon. Members have suggested that that might be the case, but my hon. Friend the Member for York (Mr. Lyon) demolished that suggestion in what I thought was a masterly speech. He showed in a masterly analysis that it was not the case that the Bill would cease to be obnoxious merely because of the addition of the amendment of my right hon. and learned Friend. I cast no slur upon the amendment; I support it, because it offers some improvement. But that improvement does not alter the fact that the word "substantially" remains. That is where the damage is done.

A suggestion was made by the Under-Secretary of State that something might be done about this issue in another place. I thought that his intervention came somewhat late. He might have sought to make that point before the closure was moved, since he did not know that his intervention was going to be prevented the closure.

At one stage I was attracted to the idea, but I resiled from it because I have become increasingly conscious that no one who relies on the other place doing something can guarantee to deliver. The other place is showing increasing tendencies to be unpredictable and, occasion- ally, to behave in a way contrary to the upbringing of its Members.

Mr. Russell Kerr

Almost skittish.

Mr. Mikardo

No one, not even the Minister speaking with the authority of the Department, can guarantee to deliver. The authority of the Department of Education and Science was at work yesterday, but it could not deliver. When the Minister tells us today that he will do his best, I am sure that he means it, but he cannot guarantee success.

If there is to be a compromise solution I fear that it will have to be produced on another occasion. The chance of obtaining it in this Session was missed and was badly bungled by the promoter of the Bill and his supporters. We must possess our soul's impatience and return to the matter yet again, definitely—I hope—for the last time.

Mr. Stan Thorne (Preston, South)

I intend to be brief, and I am brought to my feet only by the observation of my hon. Friend the Member for Pontypool (Mr. Abse), who suggested that had we been prepared to accept the 24-weeks proposal and no further clauses, that would have ended the matter. That may well be his personal view, but is not the view of the organisations which, outside this place, are conducting a tremendous lobby on the subject.

On 13 February one of those organisations, called "Life", issued a circular, presumably to its agents and allies, in which it said, among other things: Our final political objective is full repeal of the 1967 Abortion Act and its replacement by a statute giving full legal protection to all unborn children from conception onwards. Since 1974 we have had our own draft Bill ready for a brave MP to take on. It is a wonder, in view of that, that the hon. Member who sponsored the Bill was unable to take advantage of the offer that is implied by the organisation. Many of us who participated in the Committee stage, and some of my hon. Friends who have longer histories on previous Bills on this subject, have always been aware that the real architects of these measures are those who will never be content until the 1967 Act has been removed from the statute book.

There was not a lot of talk in Committee about compromise. The membership was divided 12 to five in favour of the Bill, so that it was possible for the sponsor to achieve virtually anything. In the final analysis it is votes that count, and the sponsor and his hon. Friends were well aware of that.

My hon. Friends the Members for Bethnal Green and Bow (Mr. Mikardo) and for Barking (Miss Richardson) made various perfectly reasonable approaches in Committee on certain clauses, but the supporters of the Bill were fairly confident—at some stages supremely confident—that they would succeed. They were misled by the hon. Member for Essex, South East (Sir B. Braine) into believing—particularly when the hon. Member for Bute and North Ayrshire (Mr. Corrie) became ill—that, given his guidance, the Bill could be successfully concluded. But even given that, the Bill was always acknowledged to be a part measure towards achieving that ultimate objective.

The circular from "Life" continued: So Mr. Corrie's Bill is a long way from our final objective. We particularly object to the clause that openly discriminates against handicapped children. Nevertheless, we decided to support the Bill in its original form because if it becomes law it would save the lives of thousands of unborn children", and so on. So we do not have to go far to realise that the comments of my hon. Friend the Member for Pontypool about the future of this Bill or any other Private Member's legislation designed to subvert the purposes of the 1967 Act were unrealistic.

I should like to refer to a telegram received this morning. It reads: I want to bring to your attention a statement which was today endorsed by the TUC women's conference in Brighton. The 50th TUC women's conference is dismayed that Parliament seems prepared to sacrifice the livelihoods of the children of broken marriages in order to curtail further a woman's rights to control her own fertility. Conference today repeats its total opposition to Mr. Corrie's Abortion (Amendment) Bill and urges all MPs to heed the advice of the whole trade union movement to reject this Bill. We plead with the Commons at this eleventh hour to consider the pain and suffering which will be inflicted on so many women and their families if this proposal becomes law, and to reject the Bill. The TUC repeats its wholehearted support for the 1967 Abortion Act and urges all MPs"—

Mr. Deputy Speaker

Order. Our interest is in the hon. Gentleman's views on the amendment.

Mr. Thorne

I thought, Mr. Deputy Speaker—though obviously I was wrong —that the telegram was relevant to the amendment, in that it represents an up-to-date expression of opinion of a large number of women on a subject that is embraced by the amendment. The amendment relates to a deep and complex argument that exists among women about the substantial risk that arises to them in the event of their having a pregnancy for which they seek medical advice about termination.

Of course I accept your ruling, Mr. Deputy Speaker, but against that background I suggest that the expression of opinion in the telegram is relevant. Perhaps I should have been more in order had I referred to the do-it-yourself pamphlets that have recently been the subject of observation by the Secretary of State for Social Services. We welcome his condemnation of those leaflets. They are relevant in terms of the substantial risks to women. They attempt to guide women on how best they may abort themselves in certain desperate circumstances. Who are the architects of these leaflets? I still hope that the Secretary of State will refer this matter to the DPP so that we can be informed about the origins of the leaflets.

1 pm

My main purpose is to refute the suggestion which has been made on a number of occasions, that if we accept a minor amendment to the 1967 Act relating to the period of gestation we can all happily go away feeling that, for the time being at least, the House will not be forced to consider abortion again. This is a complete misconception. As long as organisations such as the Society for the Protection of the Unborn Child and "Life" exist, they will be anxious to deprive women of their right to determine whether they should continue their pregnancies. We shall continue to have this sort of attempt to change the 1967 Act in radical ways and finally to repeal it completely. This will deprive women of their fundamental rights.

Miss Jo Richardson (Barking)

I shall be brief, Mr. Deputy Speaker, as we have explored very extensively the points that are covered by the amendment. I am sure that I echo the opinions of millions of women when I say that we are glad that my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) has been able to formulate an amendment which, to some extent, will ameliorate the damage caused two weeks ago when the House decided to retain the word "substantially".

There is no doubt that the Bill, without the amendment, is very dangerous. I shall not repeat all the arguments about the 24-week period. We have had a decision on that. The House then voted, albeit by only three votes, to retain the word "substantially", and this sent a chill of horror down the backs of many people when they realised what the House had done. Many of them were prepared to accept the 24-week provision, but they cannot accept the word "substantially" because that makes this an illiberal Bill.

Because of this, the Trades Union Congress women's conference at Brighton this week sent a telegram to a number of hon. Members. My hon. Friend the Member for Preston, South (Mr. Thorne) has just quoted it and I am sorry that you did not allow him to finish it, Mr Deputy Speaker. That telegram was sent also to the hon. Member for Bute and North Ayrshire (Mr. Corrie) because the conference felt that not only Labour Members should know how they felt but that the sponsors of the Bill should realise the deep feelings of a large group of women on this issue.

My hon. Friend the Member for Preston, South also referred to the do-it-yourself kits. In many ways it is significant that these kits have appeared in the eight months since we began discussing this restrictive Bill, during which we have talked about the possibility of a return to back-street abortions if it becomes law. I am sure that our discussions and the appearance of these kits are connected. Had we not had the Bill, and had we had just one year free from any discussion of abortion, whoever is manufacturing these kits—a reprehensible action—may not have thought of doing so. The manufacturers saw this Bill as a chance to jump on the bandwagon and cash in on the problems that the hon. Member for Bute and North Ayreshire has caused for many women by bringing forward this Bill.

I am sorry that I am not able to make my next point in the presence of the hon. Member for Essex, South-East (Sir B. Braine), as he has left the Chamber. He made constant reference to the fact that he believed that we had abortion on demand in this country. I absolutely refute that. Had we had abortion on demand, we should have had a much greater spread of National Health Services' facilities, and facilities and clinics for the BPAS, which at present do not cover the whole country. There is certainly not abortion on demand.

The sponsors of the Bill base their claim on the fact that one doctor—Dr. Peter Huntingford—has said that from time to time he has performed abortions on women as requested. We all know that at his clinic women must be referred by a GP in the first place. He cannot just take in any woman who comes to him without a reference from a GP. Also, the fact that one doctor says that he has performed abortions on demand does not mean that this is a generality.

Mr. Stan Thorne

Will my hon. Friend comment on a letter that I received today on this matter? It shows that 29 per cent. of abortions were performed by the NHS in Merseyside in 1979, but in 1971 51 per cent. were performed in NHS hospitals. Therefore, there has been a fal of 22 per cent. in eight years, and that does not sound like abortion on demand to me.

Miss Richardson

My hon. Friend is right. Abortion on demand does not exist.

Dr. M. S. Miller

Another indication of the undoubted fact that it does not exist is that in my constituency the Hairmyres hospital has a gynaecology unit which does not perform abortions at all.

Miss Richardson

That is interesting, and that situation must be repeated in many other districts and parts of the country. We should not let this debate go by without putting it firmly on the record that abortion on demand does not exist in this country. It does not exist even if there are National Health Service hospitals willing to do abortions, and not all of them are. It does not exist as long as there are BPAS clinics and they have to conform to the law. The principal problem is that there are not enough facilities for abortion within the 1967 Act, and that is an abuse which I would like to see eradicated.

Mr. Deputy Speaker

Order. Is not there a further difficulty, in that we are discussing the amendment?

Miss Richardson

Yes, Mr. Deputy Speaker, but the hon. Member for Essex, South-East was not challenged by the Chair—I do not know whether you were in the Chair at the time—when he made long references to abortion on demand. I thought that it was worth while replying to his references.

Dr. McDonald

The reason for the insertion of the word "substantially" in the 1967 Act was the belief, entertained by some hon. Members, that abortion on demand existed. We have had numerous general allegations of this kind from many hon. Members, particularly the sponsors of the Bill, but we have not yet heard from them or from the Department whether they have any specific claims or specific evidence of dates, places and circumstances in which these abortions were carried out. Nor have we heard from the responsible Minister in the DHSS how many investigations his Department has been asked to carry out by the sponsors of the Bill and by other hon. Members who have spoken in its support into allegations that the law has been broken. Does not my hon. Friend think that the Minister should be asked to say how many allegations—

Mr. Deputy Speaker

Order. If the hon. Member for Thurrock (Dr. McDonald) wishes to make a speech, perhaps she will attempt to catch my eye later in the debate.

Miss Richardson

I am grateful to my hon. Friend for what she said, especially since she was able to bring me back to what I was saying about the word "substantially". My hon. Friend is quite right. Many people who support the Bill, both inside and outside the House, want to put into the legislation extraneous words which will make matters more difficult for doctors, precisely because they believe that abortion on demand is widely available. We know that it is not.

I, too, was a little disappointed by the Under-Secretary's intervention in today's debate. Although on the whole it was fairly specific, it was extremely brief, as was the intervention two weeks ago by the Minister for Health. This is a very important matter. Where an interpreta- tion of the law is required, we are entitled to a fuller explanation from the responsible Minister in the DHSS and, in my view, from the Attorney-General. It is still not too late for the Attorney-General to explain his view of the matter, which I believe accords with that of my right hon. and learned Friend the Member for Dulwich (Mr. Silkin).

Mr. S. C. Silkin

Although I agree with my hon. Friend, I am sure that she does not wish to detract from what appeared to me, at any rate, to be pretty firm advice from the Department that this amendment could be agreed to without danger.

Miss Richardson

Yes, indeed. I was about to welcome what the Minister said. My only criticism, if such it can be described, is that if the hon. Gentleman had elaborated on it a little more he might have gone a considerable way to persuading some of his right hon. and hon. Friends that the amendment was worthy of support.

Dr. Glyn

The Minister went a long way towards supporting the amendment. I listened carefully to what he said. It convinced me, and I need some convincing, that if the wording was not quite right—and it never is in a Private Member's Bill—it could be put right in another place.

Miss Richardson

I am not denying the Minister's firmness in placing his and, presumably, the Department's view of this on the record. My only criticism is that he might have elaborated on it a little—he was on his feet for only two or three minutes—simply to allow the point that he made very well to sink in.

Before you returned to the Chair, Mr. Speaker, I said that I did not intend to delay the House for more than a few minutes. I shall abide by that. I believe that the House should support the amendment. Although it does not go the whole way towards removing the damage that has been done by including the word "substantially" in clause 1, it will go a very long way, assuming that the Bill is passed, towards helping doctors to carry out abortions which they have a legal right to perform but about which the passage of the Bill may induce them to have doubts.

We must avoid the risk that, in the pursuance of their work, doctors are caused to have any doubt about what is right and what is wrong as a result of any action taken by Parliament. That should be as clear as possible. My right hon. and learned Friend has done the House a

great service by producing this amendment.

Question put, That the amendment be made:

The House divided: Ayes 157, Noes 122.

Fisher, Sir Nigel McGuire, Michael (Ince) Rossi, Hugh
Fitt, Gerard MacKenzie, Rt Hon Gregor St. John-Stevas, Rt Hon Norman
Fletcher-Cooke, Charles McQuarrie, Albert Shepherd, Colin (Hereford)
Fookes, Miss Janet Maguire, Frank (Fermanagh) Silvester, Fred
Fraser, Peter (South Angus) Marlow, Tony Smith, Cyril (Rochdale)
Galbraith, Hon T. G. D. Marshall, David (Gl'sgow,Shettles'n) Stainton, Keith
Gardner, Edward (South Fylde) Marshall, Dr Edmund (Goole) Stanbrook, Ivor
Garel-Jones, Tristan Martin, Michael (Gl'gow Springb'rn) Steen, Anthony
Gorst, John Mates, Michael Stewart, John (East Renfrewshire)
Greenway, Harry Mellor, David Stradling Thomas, J.
Grieve, Percy Moate, Roger Tebbit, Norman
Hamilton, James (Bothwell) Montgomery, Fergus Thomas, Rt Hon Peter (Hendon S)
Harrison, Rt Hon Walter Morris, Rt Hon Alfred (Wythenshawe) Thorne, Neil (Ilford South)
Hawksley, Warren Morrison, Hon Peter (City of Chester) Tinn, James
Hayhoe, Barney Murphy, Christopher Trippier, David
Henderson, Barry Neubert, Michael Urwin, Rt Hon Tom
Hooson, Tom Newton, Tony van Straubenzee, W. R.
Hunt, David (Wirral) Normanton, Tom Wakeham, John
Johnson Smith, Geoffrey Ogden, Eric Waller, Gary
Jopling, Rt Hon Michael Page, Rt Hon Sir R. Graham White, James (Glasgow, Pollock)
Knight, Mrs Jill Paisley, Rev Ian Wickenden, Keith
Lang, Ian Parry, Robert Wilson, Rt Hon Sir Harold (Huyton)
Loveridge, John Patten, Christopher (Bath) Winterton, Nicholas
Lyell, Nicholas Patten, John (Oxford)
Mabon, Rt Hon Dr J. Dickson Pawsey, James TELLERS FOR THE NOES
McCrindle, Robert Percival, Sir Ian Mr. Vivian Bendall and
McCusker, H. Rhys Williams, Sir Brandon Mr. Ian Campbell
McElhone, Frank Ross, Wm. (Londonderry)

Question accordingly agreed to.

Mr. Speaker

We now embark upon a series of Divisions.

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