Lords Sitting of 7 February 1966

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Southwark

AIR CORPORATIONS BILL
Brought from the Commons on Friday last, and printed pursuant to Standing Order No. 45; read 1.

ABORTION BILL [H.L.]
2.37 p.m.
Order of the Day for the House to be again in Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Silkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
[Lord Silkin had moved an Amendment to leave out Clause 1 and substitute a new clause, the proposed new clause having been amended on the first two days of Committee to read as follows:
Medical termination of pregnancy
".Subject to the provisions of this Act it shall be lawful for a registered medical practitioner to terminate a pregnancy:
Provided that two registered medical practitioners, being either the pregnant woman's regular doctor and a registered medical practitioner employed in a hospital under the National Health Service or two registered medical practitioners so employed, certify in writing that in their opinion the termination of the pregnancy is necessary on the ground that—

(a) the continuance of the pregnancy would involve serious risk to the life or grave injury to the health whether physical or mental of the pregnant woman whether before at or after the birth of the child; or

(b) the child if born would be likely to suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life; or

(c) the pregnant woman is or will be physically or mentally inadequate to be the
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mother of a child or of another child as the case may be; or

(d) the pregnant woman is a defective or became pregnant when under the age of sixteen or as the result of intercourse which was an offence under section 128 of the Mental Health Act 1959 or section 97 of the Mental Health (Scotland) Act 1960 (relating to sexual intercourse with patients)."]

Debate resumed on Viscount Dilhorne's Amendment to the Amendment, to leave out paragraph (d).
LORD SILKIN: When we last discussed this matter on Thursday, we had reached paragraph (d) of the four grounds on which it was proposed that an abortion should take place. If I may remind your Lordships, there was an Amendment on the Order Paper in the name of the right reverend Prelate, the Bishop of Exeter, that paragraph (d) be deleted. He had given an indication of his intention not to move it, whereupon the noble and learned Viscount, Lord Dilhorne, moved it instead. He made a number of points on paragraph (d) which were particularly related to the question of the defective. I think he appreciated that the defective was defined in the Bill as a person suffering from severe abnormality, and he read out what was the meaning of that under the Mental Health Act 1959.
Perhaps I may refresh your Lordships' memory. It is later to be proposed that in this Bill "Defective" shall be defined as:
"…in England and Wales a person suffering from severe abnormality within the meaning of section 4 subsection (2) of the Mental Health Act 1959"—
or the corresponding provisions in Scotland. Section 4(2) of the Mental Health Act 1959 says:
"In this Act ' severe subnormality' means a state of arrested or incomplete development of mind which includes subnormality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation, or will be so incapable when of an age to do so."
That is the kind of person we are dealing with in paragraph (d). Paragraph (d) deals with the pregnant woman who is a defective or who became pregnant under the age of 16; and the noble and learned Viscount asked who was to decide whether, in the case of a

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person suffering from severe abnormality, abortion should take place. I assume that it would be the guardian. Under Section 33(2) of the Mental Health Act there is provision for a guardian to be appointed in the case of a person suffering from a severe abnormality. It may be either a local health authority, or any other person approved by the local health authority. That person would be constituted a guardian, and under a later Amendment it would be the guardian who would be capable of giving consent.
Then the noble and learned Viscount criticised the last part of paragraph (d), which provides that a pregnancy may be terminated where there was intercourse which was an offence under Section 128 of the Mental Health Act 1959, or the corresponding section of the Scottish Act. I may be wrong, but I think his criticism amounted to this: that the kind of person we are talking about in the later part of this paragraph is merely a defective, and not a person suffering from abnormality. My intention was that it should be the same type of person; in both cases it should be a person suffering from abnormality. Therefore, I cannot see the objection to the later provision. The proposal in this paragraph is that where a woman becomes pregnant as a result of intercourse which was an offence under Section 128, it should be possible for her to have an abortion.
Section 128 provides that it is an offence (speaking very broadly) for any officer on the staff of a hospital, or for any person who has the guardianship of a patient, to have intercourse with such a person. Admittedly Section 128 is quite general and deals with any patient of a mental hospital, but when one looks at paragraph (d) in this clause it is quite clear that it is not intended to cover all cases of mental defectives but simply the case of a mental defective suffering from a high degree of abnormality. There fore it seems to me almost obvious and self-explanatory that if an offence has been committed against a woman in those circumstances she should be entitled, if thought desirable—and only if thought desirable by the two doctors—to have an abortion.
There is a provision that it shall not be an offence under this section, dealing with offences against women in hospitals
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and institutions, for a man to have sexual intercourse with a woman if he does not know, and has no reason to suspect, her to be a mentally disordered patient. To me it is difficult to understand how that can apply to a patient with a high degree of subnormality. I should think those patients would be kept separate and apart. Every person employed in a mental hospital would know who they are, and so would the person who is a guardian; and although that provision might be applicable where there are patients whose mental defectiveness is of a slight character and who are occasionally released on licence, I cannot understand how it could apply to the kind of case I have in mind.
On Thursday last the noble and learned Viscount, Lord Dilhorne, gave an example within his own knowledge of a woman who had some degree of mental defectiveness (not a very high degree) and who had intercourse with a man who was not an attendant or person employed at the hospital, so far as I know. I did not quite see the relevance of that example. I only hope that the outcome was satisfactory and that they both lived happily ever afterwards. But that is not the kind of case that is intended to be covered by paragraph (d). That paragraph is intended to cover a person of a high degree of abnormality and a person employed at the hospital.
I hope that with that explanation the noble and learned Viscount will see his way not to press his Amendment that paragraph (d) be deleted. Paragraph (d) provides for other things which have already been dealt with by the Committee. It provides for the girl under 16, it did provide for rape but that has been deleted at the instance of the noble and learned Viscount, and the portion that we have not yet considered is this question of mental defectiveness. I hope, with this explanation, the Committee will now see its way to agreeing to this clause.
2.44 p.m.
LORD MOLSON: The noble Lord, Lord Silkin, in this debate has done much to defend his Bill against those who thought that it went too far. I am bound to say that in this particular matter I am wondering whether his Bill goes quite far enough. I can quite understand that where it is a question of a criminal offence

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it is desirable that a mental deficient should be defined as is done in Clause 4(2) of the Mental Health Act 1959, which is
"A state of arrested or incomplete development of mind…of such a nature or degree that the patient is incapable of living an independent life."
I would ask the noble Lord to consider whether there are not many cases of mental deficiency where frequently both the husband and wife are mental deficients, and the usual effect of that is that the progeny are even more mentally defective than either of the parents. It is known by all sociologists, and it has certainly come to the knowledge of most Members of Parliament who have represented constituencies, that there are cases where two people marry, both of whom are slightly mentally deficient although it could not possibly be said of them that they came within this category of being incapable of living an independent life. Indeed, they have married, and they have a large number of children, all of whom, or the great majority of whom, are to a greater or less extent mentally deficient. I had hoped that the noble Lord's Bill was intended to deal with a case of that kind.
Let us take the case of a married couple living in appalling conditions of squalor where it is obvious that neither of the parents is really able to cope with the problems of modern life. They know or care nothing about contraception, they have child after child, none of whom is likely to be able to become a normal member of society. I should certainly wish that this Bill made legal the abortion of a mother who has had a number of mentally deficient children; but it appears to me from the explanation given by the noble Lord, Lord Silkin, in order to meet the objections of the noble and learned Viscount, that it is intended that it should apply only to a mentally deficient who would qualify for admission to a mental home. I do not think the Bill goes far enough, and I hope that the noble Lord will not commit himself at this stage not to go further and that between now and the Report stage he will discuss this matter. I hope the Government will adopt the attitude, if this Bill does pass through the Committee stage, that they will consider the possibility of widening the terms of this provision in order to meet a very large
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problem and one which involves a great many people. All the evidence is that the mentally defective section of the community suffer from a condition which is largely hereditary and passed on from generation to generation. I think it is right, when we are legalising abortion, that this should be one of the grounds for legal abortion.
2.51 p.m.
THE EARL OF LYTTON: I was down to support the right reverend Prelate, but he left the Chamber, to my regret, and I did not know what he was going to say. I have two very brief points to raise in support of the arguments already put forward by the noble and learned Viscount. With regard to Section 128 of the Mental Health Act 1959 and the case of the people who are having treatment in a mental institution, it seems to me difficult to understand the reasons for permitting abortion when it is allowable only in the case of an out-patient when intercourse has taken place on the premises, not off the premises. It seems to be a special arrangement made for administrative convenience rather than on any principle connected with abortion or the health of the woman. That is all I would say on that point. It seems an inconsequent thing unrelated to the problems of health that we have been considering.
The second point is with regard to the definition of the woman who Cs a severely subnormal person. I wonder whether we could stick to that expression and not mix up "severely subnormal" with the word "defective", which I believe is legally obsolete, or with "abnormality", which means something else, or with "subnormal", which covers perhaps 20 per cent. of the population, according to one's calculation of I.Q. Severe subnormality is defined in the Act as the condition of somebody who is inadequate to look after herself. I wanted to ask by what criterion such a woman is considered adequate to look after a child. If a woman will not be an adequate mother she will fall under the paragraph we have already passed, paragraph (c). Otherwise she is something special and falls into the eugenics clause. It seems she must be covered, and it is superfluous to introduce a special category for this one hard case. She is by legal definition a woman who cannot look after herself.
BARONESS SUMMERSKILL: I want to speak shortly on this question. I have, I think, spoken on nearly every aspect of this Bill. The noble Lord, Lord Molson, is quite right in everything he says. I am prepared in this matter to consider the condition of the woman and of the child. On other occasions there have been objections from various parts of the Committee because, on the one hand, perhaps it is in the child's interest that it should be born, and in other cases it is in the interests of the woman that no abortion should be performed. But I want to appeal to your Lordships in this case that it is in the interests of both the child and the mother that the abortion should be forthcoming, for this reason.
We are here dealing with a mentally defective woman. How can a mentally defective woman evaluate the consequences of her action? It is instinctive in her to respond to the man's advances. In an institution life is, let us say, so dreary that the mentally defective woman is easily persuaded to have sexual intercourse if there is anybody there prepared to invite her to do so. There is rarely a struggle; there is rarely a rape. She would not come under the rape provision. She is prepared to accept the intercourse, but as I say, she is completely incapable of envisaging the consequences; quite incapable of knowing that she will probably produce a child with the same disabilities; incapable of knowing—or at least not caring—that she will be unable to look after the child, and that immediately it is born the local authority will look after it.
So far as the child is concerned, the noble Lord, Lord Molson, is quite right. As I said last week, there is ample evidence to show that mental deficiency (I think that was the expression I used last week) can mark a child to the third, fourth and fifth generation. We have the statistics. Therefore, I hope that your Lordships will not be persuaded to believe it is in the interests of the woman or the child that an abortion should be withheld.
LORD AMULREE: May I ask a simple question before the noble Lord, Lord Stonham, speaks? I entirely agree that the child of two mentally defective parents is likely to be mentally defective and is therefore not very desirable. The point I want to be quite sure about is
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what we are going to do about procuring an abortion. Will the mother be able to ask for it or will it be done, as it were, compulsorily? If the second is the answer, I think we must move extremely carefully because we are opening the gates to what may be a great pit of catastrophe in front of us. If the mother can be talked round into asking for the abortion, I think it should certainly be given; and it would be done, I believe under paragraph (a). But if it is going to be done by force—I do not think that is too strong a word to use—I think we have to be extremely careful.
LORD CHORLEY: May I put a question which arises out of the speech of the noble Lord, Lord Molson? I should have thought the child came under paragraph (b). The medical evidence given by the medical experts this afternoon seems to show that this child would suffer from mental abnormality which would
"deprive it of any prospect of reasonable enjoyment of life".
Perhaps the Minister would say if that is wrong, and, if so, why.
2.59 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): I am most grateful to the noble and learned Viscount, Lord Dilhorne, for having moved this Amendment on Thursday when the right reverend Prelate the Bishop of Exeter was unable to do so, because it has enabled us to have a discussion on a very important point on which there is the greatest unanimity of sympathy for the objectives which my noble friend Lord Silkin has explained but on which there is also a great deal of misunderstanding. In one of the discussions, on Thursday I think it was, the noble Lord, Lord Molson, alleged that the great majority (I think those were his words) of defectives were the children of defective parents.
Of course, as my noble friend Lady Summerskill has said, feeble-minded parents are likely to have defective and feebled-minded children, it may be to the third and fourth generation. But that is quite a different thing from saying that the great majority, or even a substantial proportion, of children who are defective are the children of feeble-minded parents. The lightning of mental deficiency strikes

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one family in every 100 in this country and, like lightning, it strikes indiscriminately at all classes of the community and at parents of all levels of intelligence. Therefore what we are considering here is the particuar question of a defective mother likely to have a defective child. My noble friend Lord Silkin was quite right to point out that it was a comparatively narrow category of persons, and the noble Lord, Lord Molson, confirmed this by saying that my noble friend ought to consider making the considerations wider.
I would say at once that I hope that this Amendment to leave out paragraph (d) will not be pressed, and that we shall be able to come to a consensus on it, on the basis of a careful consideration of all the facts and difficulties, so that we can have an opportunity of looking at it again, perhaps in a revised form, on Report stage. I say this because paragraph (d) is really four paragraphs, and in particular it covers two provisions that we have already considered—one concerning rape, which the Committee did not approve, and the "girls under 16" provision, which the Committee did approve. If, therefore, this Amendment were pressed to a Division and carried, we should lose the provision in respect of children under sixteen which the Committee have already approved. The point that we are now considering, as my noble friend Lord Silkin clearly said, is whether there should be specific provisions allowing abortion, first, if a pregnant woman is a defective and, secondly, if a woman mental patient has become pregnant as the result of an offence (I emphasise the word "offence") committed against her under Section 128 of the Mental Health Act, 1959. Both these provisions raise difficulties which I should like to deal with in some detail.
The provision for abortion if the pregnant woman is a defective must be considered in the light of the Committee's decision to approve paragraph (c), which would allow abortion on the ground that the pregnant woman would be physically and mentally inadequate to be the mother of a child. I think it is quite clear that in all the cases which have been mentioned in this debate the acceptance of paragraph (c), which would allow legal abortion where the woman was physically or mentally inadequate to be the mother
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of the child, would make these parts of paragraph (d) unnecessary. There can be no clearer ground for a decision that a woman is "mentally inadequate to be the mother of a child", than the fact that she is a "defective". The term "defective" is defined in my noble friend Lord Silkin's proposed interpretation clause, as meaning a person suffering from "severe abnormality" within the meaning of Section 4 of the 1959 Mental Health Act. I would point out that that section in fact defines "severe subnormality" (not "abnormality") as being arrested or incomplete development of mind of such a nature or degree that the patient is incapable of leading on independent life. As I have said, this is a most restrictive definition of defectiveness, and it is inconceivable that such cases would not be covered by paragraph (c). I should mention here that I am informed by the Ministry of Health that in many cases a child born to a defective mother is normal, and that there are no medical reasons, other than those which would already be made under paragraph (a) of the proposed new Clause 1, for regarding the defectiveness of the mother as a ground for abortion.
There is the further difficulty that this quite limited category of the severely subnormal are largely incapable of independent volition, and therefore would be incapable of giving a valid consent in writing. My noble friend Lord Silkin, in dealing with that particular point, suggested that subsection (3) of Amendment No. 11 means that the guardian of the defective would in all cases be the person to give consent. But that is not so; it would be the case only if the defective was under 16. So that particular point remains to be considered.
Again I would repeat, that I am hoping that we shall agree not to press this Amendment to a Division. But it is right that we should consider these difficulties. I hope that so far I have succeeded in convincing my noble friend that his Bill would gain no advantage from retaining this particular provision now that he has persuaded your Lordships to retain paragraph (c).
When we come to the provision for allowing abortion in a case where a woman mental patient has become pregnant as a result of intercourse which was an offence committed against her under

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Section 128 of the Mental Health Act, or the similiar provision in Scotland, we get the same practical problems which I and others have mentioned with regard to the rape provision. Again, one has the greatest sympathy for these cases. If you asked a number of people, "Should abortion be legal in the case of a woman against whom, under the Act an offence has been committed?" almost automatically 99 out of a 100 would say, "Yes, of course." But we have to consider the practical difficulties. The difficulty is that the provision as drafted requires the doctor to perform a virtually impossible task. It is, moreover, a task with little or no medical content.
I ask your Lordships to consider what the doctor would have to do, and what he would have to decide. If a doctor is to judge whether an offence has been committed under Section 128, and therefore whether he can lawfully terminate the pregnancy, it is necessary for him to know, first, whether the man concerned is a member of the staff of a mental institution, or whether he is within the categories of those who commit an offence by intercourse with a mental patient; secondly, where the intercourse actually took place—because if the woman is an out-patient at a mental hospital, an offence was committed only if intercourse took place on the hospital premises; and, thirdly—and my noble friend Lord Silkin mentioned this—whether the man might reasonably have known the woman was a mentally disordered patient. I submit that these are matters which no doctor ought to be expected to decide; they can be determined only in a court. But, as in the rare case, this would often be too late to allow an abortion operation to be performed safely.
On that point, I would say this also to my noble friend Lord Silkin. My noble friend said that the reference to Section 128 offences would bite only on defectives. That is not so: it applies to all mental patients, in-patients and outpatients, within Section 128. If it is his intention, as I believe it is, from the speech he made at the beginning of the debate this afternoon, to deal only with the defective, the case is already covered and there is no need for any reference to Section 128.
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I should like now, for the first time since my noble friend moved the Second Reading of this Bill, to say a few words, not as a Minister but in my private capacity. I have worked in the mental health field for over twenty years. For some years I was chairman of a committee which was responsible for 17,000 beds in mental and mental deficiency hospitals. Until I went to the Home Office, I was Chairman of the National Society for Mentally Handicapped Children. So I lack neither knowledge, sympathy, nor understanding of this problem. I believe that I am one of the majority in your Lordships' House who wish for a radical reform of the law of abortion. I hope, therefore, that your Lordships will appreciate that my purpose throughout this Committee stage in pointing out these difficulties is not to restrict the scope of the Bill, but because the Government are concerned to see that any measure which emerges from your Lordships' House not only should reflect your Lordships' decision but should be a workable measure which properly gives effect to your intentions.
It is not enough for us to indicate our good intentions and to express sympathy for the mother or for the putative child. We are legislators and must continuously bear in mind the full consequences, intended and unintended, which may follow from measures which we place on the Statute Book. It is for this reason alone that the Government are bound to advise the Committee with regard to provisions such as this last one in regard to mental patients, which are unworkable. Although I have said that the provisions regarding defectives and mentally afflicted women are now unnecessary, and have. I believe, demonstrated beyond reasonable doubt that in the form which we have had them explained to us they are unworkable, I would say to your Lordships again; please do not press this Amendment because, if it were carried, we should lose with it the provision regarding children under sixteen, which has been approved. I hope instead, in the light of what I have been able to say, that my noble friend Lord Silkin will give an undertaking to look at it again and come back with a revised proposal covering the point he has in mind, but going no further than that.
3.14 p.m.
VISCOUNT DILHORNE: I moved this Amendment to the Amendment in the place of the right reverend Prelate, because I thought it was important that the Committee should give serious consideration to this question. Your Lordships will know that I myself have not tabled an Amendment to leave out either the first part of that which we are now considering, namely, termination on the ground of a woman being a defective, or, indeed, an Amendment to leave out the second part of what we are now considering, termination on the ground of pregnancy resulting from the commission of an offence under Section 128. I thought I had made it clear, when I moved this Amendment for the right reverend Prelate, that I was hoping to receive an explanation of this clause, and I particularly wanted to hear the observations of the Government, through the noble Lord, Lord Stonham, on this point. I make no apology, and I have no regret whatsoever, for taking that course, because I think that what has been said already in this debate shows that we are up against a difficulty; but I hope that it may not be an intractable problem.
I should like to consider these particular provisions of paragraph (d) as if paragraph (c) were not there—because it may be, in due course, that paragraph (c) will not remain there—one does not know. The first question I raised to the noble Lord, Lord Silkin, was: who would give consent if the woman were a defective within the meaning of Section 4(2) of the Mental Health Act? To that he to-day replied that it would be the guardian, and that there is provision for that under the Amendment to the Bill. In fact, as the noble Lord, Lord Stonham, has pointed out, the noble Lord, Lord Silkin, is wrong about that. There is no such provision empowering consent by a guardian of a mental defective. It is only, so far, of a guardian of somebody under age.
I ask your Lordships to bear this in mind. The definition of "severe subnormality" is an
"arrested or incomplete development of mind which includes subnormality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation…"
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Those are wide terms. The noble Lord, Lord Amulree, asked whether, in the case of such a person, there would be any question of compulsion. To that, I do not think we had a very clear answer. As I see it, if the noble Lord, Lord Silkin, is right in what he intends, he contemplates that a guardian of such a patient will be appointed under Section 33 of the Act, and that that guardian—who may be a local authority—will then give the consent necessary to the performance of this operation on such a defective. It may well be, may it not—I do not know, and I want to find out—that in fact such an operation will be performed upon such a defective against such will as she has and by the exercise therefore of some degree of compulsion? That seems to me to follow from the propositions which have been advanced.
It is very easy to say that on the ground of eugenics it is very desirable that mentally defective women should not have children, and the noble Lord, Lord Molson, made a powerful speech in support of that plea. Where a woman is not deprived of all exercise of will power, but where she is incapable of living an independent life or of guarding herself against serious exploitation, is it right to say that her child must be taken away at the instance of her guardian, who may be a local authority, and taken away against her will, when, as the noble Lord, Lord Stonham, has said, there are many cases where children born to a defective mother are normal? I feel that before we make a provision of that kind, we ought to give more serious thought to it. It is a very serious matter.
The whole basis of this Bill up to now has been that it is a Bill to enable those who want their pregnancy terminated to have it done if certain grounds are established. It seems to me that here we are proceeding further than that, to say that, even if she does not want it, it can still be done to her and against her will, so far as she is capable of expressing it.
BARONESS SUMMERSKILL: May I ask the noble and learned Viscount one question? Would not his argument also apply to an acute operation which the woman needs? She may need an operation for an appendix, but she does not want to go to the hospital and she does not want to go into the operating theatre.

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She makes the same fuss as a child would make. Are you going to let her die?
VISCOUNT DILHORNE: I think there is no real analogy between an acute operation for an appendix and the destruction of a potential human life, particularly when it may be a perfectly normal human life. That is the difference.
May I now turn to the second part of this provision which is now under discussion? I could judge the intentions of the noble Lord, Lord Silkin, only from the words he used in his Amendment. Paragraph (d) of the proposed new clause runs:
"as the result of intercourse which was an offence under section 128…".
There is nothing there limiting the provision to a case where the pregnant woman is a defective, coming within Section 4(2). The language is not capable of that interpretation. So I hope that the noble Lord will forgive me if I did not appreciate, from the language he used, the intention which he said to-day he had. But I gather it is his intention—which the clause does not make clear—that it is only if the woman, who is a defective within Section 4(2), becomes pregnant as the result of an offence committed under Section 128 that the provision should apply.
The practical difficulties which the noble Lord mentioned are very real, and, again, I would support strongly his arguments on the ground of the practicability of this provision. You are asking the doctors here to judge whether the father of this child came into one of the specific categories mentioned in the clause. You are asking the doctors to judge in certain cases the precise locality of the act of intercourse—if it is within the home it is an offence; if it is outside the home it is not—and you are also asking the doctors to judge, without, of course, hearing anything, except from the defective woman, whether or not the man knew, or had any reason to suspect, her to be a mentally disordered person; and Section 128 as it stands applies to any form of disorder.
I do not quite understand one part of the speech of the noble Lord, Lord Stonham. He said, if I understood him correctly, that the word "defective",
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as defined in paragraph (d), covered the case which the noble Lord, Lord Silkin, had in mind and that therefore there was no need for reference to Section 128. I did not quite follow that, unless he meant (perhaps I have misunderstood him) that where one finds that women are pregnant as defined in paragraph (d), as the clause now stands, there is no need to go further to see who is responsible for the commission of the offence. If that is so, I follow his argument; but that, of course, leaves us with an issue of very considerable importance, which has arisen for the first time in these discussions of this Bill. In the case of an adult person, can the termination take place against the will and without the consent of the pregnant woman?
I hope that the noble Lord, Lord Silkin, will give far more thought to this question. It is a difficult one and, I think, an important one. As I said, I did not myself put down an Amendment to leave out this particular provision, but I moved this Amendment to enable discussion to take place. I feel that we have had a useful discussion, and in the hope that the noble Lord, Lord Silkin, will have regard to what has fallen from our lips with regard to this Amendment, I would ask your Lordships' leave to withdraw it. But I would give this warning. I hope that the noble Lord will not be tempted to follow the path outlined by the noble Lord, Lord Molson, because if he does I fear that he will make this Bill even more controversial than it is at present.
3.26 p.m.
LORD SILKIN: This is not, I take it, a conditional withdrawal, but the noble and learned Viscount invited me to express views as to the way in which the discussion had gone. First, I should like to express my gratitude to the noble and learned Viscount for having raised this matter. I have said on a number of occasions that I am not a Parliamentary draftsman. I do the best I can, but it is for the Committee and for those noble Lords who have had experience in reading the language and criticising it, to comment and point out any defects. I am very glad indeed that the noble and learned Viscount, as well as the noble Lord, Lord Stonham,

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have given their views, and I unhesitatingly give an assurance that these words will be carefully looked at once more, and that I will do my best to express quite definitely what I had in mind. I had in mind only to deal with the abnormal defective and no other, but I see the force of the points that have been made, and I mention them to make it quite clear that those are matters to which I will give careful consideration.
One point is the question of who should give the consent. I quite see that, although this was not intended, my provision about consent applies only to persons under 16, and if it were intended that the consent should be given by either a local authority or an individual the provision about consent would have to be altered. I see also the force of the point made by the noble and learned Viscount, that it might not be right that even a person of such limited intelligence should have an abortion forced upon her. I think it is a theoretical point, but it is a point which I must face to see whether, in fact, her consent should be obtained. I cannot conceive that two doctors, who have a discretion as to whether or not they are going to carry out an abortion in those circumstances, would, in fact, carry it out against the woman's will. But I accept that it is a matter which requires further consideration.
The other point is as to the offence under Section 128. Here again I see the point that my noble friend has made, that if in fact all I intend to do is to deal with the abnormally defective person then there is no reed to qualify the wording by having a separate provision for cases where an offence has been committed, as it would apply to all such defective persons. I will certainly look at these points and, with that assurance, I hope that the Committee will be prepared to agree to my Amendment.
Amendment to Amendment, by leave, withdrawn.
On Question, Whether the new Clause 1, as amended, shall be agreed to?
VISCOUNT DILHORNE: Last Tuesday I said that this new clause was a very considerable improvement on the original Clause 1 of the Bill, but that it still had blemishes and defects which should be cured. In my view, it has been improved in one respect. Abortion on the ground
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that the pregnancy is thought to be the consequences of the commission of the crime of rape has gone—and, in view of what has already been said in this Committee to-day and what has appeared in articles over the week-end, I should like, if I might, to correct a misunderstanding which appears to have arisen about the reasons for that Amendment. The suggestion that a woman or a girl, pregnant as a result of the commission of rape or incest, should have to hear the child foisted upon her is repugnant to us all. I think there is no division of view about that in this Committee or, I suspect, outside it; but in my opinion all such cases can and will be dealt with under paragraph (a). I cannot believe that doctors will not form the opinion that to have a child conceived in such circumstances is likely to cause grave injury to the health of the pregnant woman.
The noble Lord, Lord Silkin, opposed that Amendment despite the very great practical difficulties in its operation, to which the noble Lord, Lord Stonham, drew attention, on the ground that there might be a pregnancy due to rape where there could not be said to be a serious risk of grave injury to health. Of course, paragraph (a) states the present law and slightly extends it. The case put forward by the noble Lord, Lord Silkin, would carry weight if he could point to a single case since the Bourne case, now many years ago, in which a woman or girl had not had her pregnancy terminated on the grounds of health where the pregnancy was clearly due to rape. I do not believe that there is any such case; and, consequently, I remain of the belief that to cover such cases, with which we all sympathise, all that is required is paragraph (a).
But in paragraph (a) there is, I think, a drafting defect to which I wish to draw the noble Lord's attention. The phrase the noble Lord has used is:
"the continuance of the pregnancy would involve serious risk to the life or grave injury to the health…"
et cetera; that is to say,
"would involve…grave injury to the health…"
Should not the word "of" be inserted before "grave", so that a serious risk of grave injury to health would suffice? I think that probably was the noble

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Lord's intention; and I would have said that, if that were the wording, rape cases would certainly involve a serious risk of grave injury to health.
But by resisting two Amendments the noble Lord has, in my view, radically altered the character of the Bill. If I may remind the Committee of it, in the forefront of the noble Lord's argument on Second Reading he placed the need—and I quote his words:
"to make the law…clear and certain, so that no medical practitioner need fear prosecution if in good faith he carries out an abortion on a patient whose circumstances fall within the provisions of this Bill "—[OFFICIAL REPORT, Vol. 270 (No. 11), col. 1142; 30/11/65.]
I defy anyone to say that the ambit of this new clause is "clear and certain." That argument by the noble Lord commanded support, for he pointed out that the present law depended on the directions given by two judges to juries, and that a higher court might say that they were wrong. Then the noble Lord went on to say—and I quote his words—that
"…the Bill…is not a general licence…to carry out abortions on anybody who desires an abortion".
That is precisely what this new clause now proposes. Any woman whom it is thought will be "inadequate" as a mother will be entitled to have her pregnancy terminated; and this, I think, opens the door to unlimited abortion. If a pregnant woman goes to her doctor and says that she does not want the child, the doctor will surely be entitled to say, "You do not want the child? Then obviously you will not be adequate to be the mother of this unwanted child", and so she will be able to have her pregnancy terminated. There are those, I know, who take the view that a pregnancy should be terminable whenever the mother wants it. Some of those who hold this view are violently opposed to capital punishment, as they think it wrong in any circumstances to destroy human life. But apparently they view, if not with equanimity, certainly with approval, the destruction of a living fœtus and of a potential human being if the mother wants that.
With this provision in paragraph (c) in the Bill all the other grounds become superfluous; there is no need for any of them. It really is a general licence to carry out abortion. I do not think the
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noble Lord made any real attempt to explain what the words
"…physically or mentally inadequate to be the mother"
meant, or were intended to mean. He gave an extraordinary list of cases which he said he hoped this provision would cover. He mentioned women who suffered illnesses which do not affect the pregnancy itself, and so, he said, were not covered by paragraph (a). But the noble Lord is surely wrong about that, for paragraph (a) is not confined to pregnancy itself. Read with Clause 2 and the proposed new subsection (1) of Clause 2, it covers a very wide field indeed. The doctors can have regard to all relevant circumstances
"…before at or after the birth of the child…".
Then the noble Lord went on to refer to women in prison—the persistent offender, the shoplifter. These were cases he specially wanted covered. I would point out to him that, in fact, they are not covered by this provision, which only has regard to the mother's physical or mental inadequacy to be a mother, and not to her physical location. Then, if I might remind your Lordships, he read us extracts from a letter, and I have no doubt aroused, and rightly aroused, a great deal of sympathy with the woman who wrote that letter—a pregnant woman with six children aged from 18 to 7. That case, surely, is covered by paragraph (a) read with Clause 2(1), and is no argument for the inclusion of paragraph (c).
As I have said, this clause as it now stands permits abortion for any woman who does not want her expected child. All she will have to do is to convince two doctors that she will be "inadequate" as a mother—and if she does not want the child that should not be difficult. Also, on production of a birth certificate—and no more—a child under 16 will be entitled to have her pregnancy terminated. I wonder, if this becomes the law, how many potential human beings will have their lives destroyed under these two provisions, neither of which in any way depends upon the health of the mother being affected at any time or upon the question of the child having no prospect of "reasonable enjoyment of life".
This new clause goes far wider than the noble Lord said he intended on Second Reading, as I have indicated, and, if passed with this clause, it will be a Bill

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giving a general licence to abort. By insisting on these provisions, the noble Lord has, believe, lost the support of most, if not all, of the right reverend Prelates—I understand that the right reverend Prelate the Bishop of Exeter and some other Bishops are unable to be here to-day because of engagements which were fixed before it was known that we should be carrying on with the Committee stage today. He has also lost, I must tell him, my support, for what that is worth (and I do not think it counts for much), and also, I suspect, the support of a great many people who would like to see on the Statue Book, as I should, a Bill carrying out the noble Lord's first intention—that is, making the law "clear and certain", and not one giving a general licence to abort—but not a Bill such as this. For the reasons I have stated, I can no longer give my support, for what it is worth, to this Bill.
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): For the purposes of a Statement I beg to move that the House be resumed. I regret the fact that no notice was given of this at the outset of our proceedings this afternoon, and I apologise for it.
Moved accordingly and, on Question, Motion agreed to. House resumed accordingly.

HIRE PURCHASE AND RENTAL AGREEMENTS
3.40 p.m.
THE PARLIAMENTARY SECRETARY, BOARD OF TRADE (LORD RHODES): My Lords, with the permission of the House I should like to make a Statement which has been made by my right honourable friend the President of the Board of Trade on hire purchase and rental agreements, and, if your Lordships will permit it, I should like to use his own words:
"I have made two orders which come into operation to-morrow. One of these will increase the minimum deposit, and reduce the maximum period for repayment, required for most goods at present subject to control under the Hire Purchase and Credit Sale Agreements (Control) Order. Where the minimum deposit on an item
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is 15 per cent. it will become 25 per cent. In the case of furniture and mattresses the minimum deposit is being raised from 10 per cent. to 15 per cent. I have decided to make no change in the minimum deposit required for cars, but the maximum period for repayment of the balance will be reduced from 30 months to 27 months.
"For other items where the maximum period for repayment is at present 30 months, the period will be reduced to 24 months. For furniture and mattresses the maximum period will be reduced from 36 months to 30 months. I have decided to make no change in either the minimum deposit or the maximum repayment for cookers and water heaters. The other order will increase the minimum rental which has to be paid in advance under a hiring agreement, for all goods now subject to control, from 20 to 32 weeks.
"The Government have made clear on many occasions that we are determined to eliminate the balance-of-payments deficit this year, following the substantial improvement that was made in 1965. To achieve this it is necessary to watch carefully the pressures on the economy. Industrial investment continues at a high level; and exports have been rising strongly. In these circumstances we must continue to ensure that consumption does not make undue demands upon our resources."
VISCOUNT DILHORNE: My Lords, the Statement that the noble Lord has just read is, indeed, an important one and one with serious implications, particularly for young married couples and those who are wanting to furnish homes, and so on. I am grateful to the noble Lord, Lord Champion, for apologising for not having announced that this Statement was to be made; and your Lordships will apreciate that I have had little opportunity to consider it in detail. Am I right in thinking that, so far as hire purchase agreements are concerned, there are not only very substantial increases in the deposits but also very substantial reductions in the hiring period, which would mean that the rentals during that hiring period would also be substantially increased? Secondly, with regard to hiring, the minimum rental having to be paid in advance increases from 20 to 32 weeks. Does that correspond with the

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general change made in the hire purchase agreements? Is it in line with it; and could the noble Lord say how great a percentage that is likely to mean—I have not worked it out—in the increase of the minimal rental charges which have to be paid in advance?
LORD RHODES: My Lords, in answer to the last question, may I say that the increase in the minimum rental to be paid in advance—from 20 to 32 weeks—reflects the general increase in hire purchase deposits to 25 per cent. I have not got what the actual percentage is. The goods mainly hired are radios and television sets and, in some instances, cars. I would not say that the increase in the length of time that is laid down in this regard is tremendous. In the case of motor cars, to quote an example, previously the amounts and time were 25 per cent. and 30 months; now they are 25 per cent. and 27 months. In the case of furniture and mattresses they were previously 10 per cent. and 36 months; they are now 15 per cent. and 30 months. There is not a tremendous change.
VISCOUNT DILHORNE: My Lords, what were the general items where minimum deposits have been increased from 15 per cent. to 25 per cent? The noble Lord dealt only with those which were increased less than the general items.
LORD RHODES: My Lords, I can deal with that point. The deposits for other consumer durables, including radio, television sets, record players, washing machines, refrigerators, vacuum cleaners and carpets increase from 15 to 25 per cent. and the time reduces from 30 to 24 months. With regard to the remarks the noble and learned Viscount made about young married couples, I may say that the last time an alteration was made in the percentages and the time for repayment such articles as furniture were not included. But the Government think that in the circumstances there should be a slight modification now in regard to furniture.
LORD WADE: My Lords, while I agree that the present state of the economy makes these further credit restrictions necessary—and it is unfortunate
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that this should be so—may I ask the noble Lord for some further enlightenment on the last part of the Statement, in which he said that
"we must continue to ensure that consumption does not make undue demands upon our resources"?
Would he not agree that the main problem is to achieve the right balance between earnings and productivity; and that until we have done so there is bound to be pressure on our resources?
LORD RHODES: Yes, my Lords, certainly. To save the time of the House I may mention that there will be quite a lot of opportunity to go into this question on Wednesday.
LORD BLYTON: My Lords, does not my noble friend think it is penal upon young married couples in the working class stratum who, in the main, set up their homes on hire purchase?
LORD RHODES: My Lords, I think I made it quite clear that the changes made this time have been made because nothing was put on these items of furniture last time. I agree that the young people who are setting up homes are exceedingly important; but so is the economy, and the Government have taken steps to strengthen it.
LORD REA: My Lords, does the noble Lord agree that while hire purchase is, in principle, desirable, it has to be very carefully watched? While agreeing with the noble and learned Viscount that the young people who are at present dealing with current hire purchase are rather disturbed, I would point out that these changes also affect the wholesalers, who never know from one year to the next what hire purchase terms are going to be. Could the Government take this matter more in hand, take the longer view, realise that you cannot have hire purchase "ad lib." realise that there must be limits to deposits and periods and, at the same time, remember the interests of the young people who depend on this method of purchase?
LORD RHODES: Thank you very much, my Lords. I will certainly see that these matters are brought to the notice of my right honourable friend.

ABORTION BILL [H.L.]
3.50 p.m.
House again in Committee.
LORD MOLSON: I heard with great regret the speech of my noble and learned friend Lord Dilhorne. His attitude has been quite consistent all through this Bill. I am glad to think that he accepts the desirability of legislating in order to make it plain that in certain circumstances abortion is legal. That, I understand, has been established by a number of cases, but there can anways be some doubt about the meaning of Case Law. Therefore, I understand him to approve legislation which will legalise abortion in the cases that are contemplated in paragraph (a) of the Amendment now before the Committee. I am sorry, however, that he has equally consistently declined to move forward and to see in this Bill a measure of social reform.
VISCOUNT DILHORNE: I am sorry that my noble friend says that, when obviously paragraph (b) is something quite new, as he would have learned, had he been here. In fact, I drafted it and strongly supported it.
LORD MOLSON: I am sorry if I misrepresented what my noble and learned friend said. For that I apologise. I did not in any way intend to misrepresent him. I am glad to think, then, that he agrees that this Bill should not confine itself entirely to giving statutory sanction to Case Law. I am glad that he agrees that this is an opportunity for taking a step forward. Let me say, however, that I am sorry that he is not prepared to agree that two steps forward should be taken. I believe that public opinion in the country is anxious that we should take two steps forward.
I hope that the noble Lord who is responsible for this Bill will realise that the only possible meaning of the Division that took place last Thursday was that the majority of noble Lords present on that occasion were anxious that this should be a measure of social reform. I did not understand the noble Lord, in his Second Reading speech, to give anything in the nature of an undertaking that this Bill was not going to be a step forward and a measure of reform or that it would be limited in the way that has been suggested by my noble and learned friend.
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I think he has had indication, in the whole discussion that has taken place, that while of course there is a certain section of your Lordships' House which is sincerely and genuinely opposed to widening in certain ways (as, for example, in paragraph (c)) the ground for legal abortion, at the present time he is in possession of a majority in this House, and I hope that on Report stage we shall have a redrafting in consultation with the advisers of the Government, but that he will not draw back at all beyond where he has gone. I believe that public opinion outside, and a majority of noble Lords in this House, will support him, if he stands firmly upon the principles in the Bill.
LORD DENHAM: I wonder whether the noble Lord, Lord Silkin, would set my mind at rest over one point. I have listened carefully to the debate on the Amendments to the new Clause 1 and. like my noble and learned friend, I am not at all happy about paragraph (c). It seems to me that in almost all the hypothetical cases quoted by the noble Lord, Lord Silkin, and other noble Lords in favour of this paragraph, adoption of the baby would provide a perfectly satisfactory solution. In spite of what my noble friend Lord Molson says, I have the impression that throughout the debate on this Bill the feeling of your Lordships' Committee has been that abortion should be allowed only in those cases where there is no other solution to ensure the health and welfare of the mother or of the child.
I understand that the adoption societies take the very greatest care to ensure that couples who want to adopt a child will make suitable parents in every way, but in spite of this there are at the moment more suitable homes than there are children to adopt. I am afraid that, if this paragraph (c) passes into law, abortions will be allowed in cases where there is no risk to the mother or child, that the unborn child will be deprived of the chance of living in a happy home and that the chances of a childless couple being able to adopt will be even less than they are now.
Can the noble Lord, Lord Silkin, assure me that under this new clause, as it is now worded, it will be improper for a doctor to terminate a pregnancy, or to concur in the termination of a pregnancy,

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under paragraph (c) or under the words "or after" in paragraph (a), in cases where he considers that the adoption of a child after birth would be a satisfactory alternative? If not, will he consider rewording this paragraph before the next stage of this Bill?
LORD SILKIN: The noble and learned Viscount, in his speech on this Amendment, led us to believe that the only purpose of this Bill, so far as I was concerned—
VISCOUNT DILHORNE: I think that I used the words, "in the forefront of the noble Lord's argument about that".
LORD SILKIN: I will accept that, but the noble and learned Viscount did not say that in the course of his speech on this Amendment.
VISCOUNT DILHORNE: If the noble Lord will look at Hansard, he will see that that was what I said.
LORD SILKIN: I will have a look, and if I am wrong, I will apologise to the noble and learned Viscount; but I certainly gained that impression. At any rate, I made it abundantly clear to the House on Second Reading that the purpose of this Bill was two-fold—and I stressed both purposes equally. One was to clarify and codify the law on the subject, and the second was to extend the law. I not only made it clear in my speech; I made it clear in the Bill itself. The original Bill contained four grounds on which I proposed that abortion should take place.
VISCOUNT DILHORNE: If I may help the noble Lord, I am quite certain that I said that the noble Lord placed it in the forefront of his argument. I never said that he confined his argument to that line. What I said was quite deliberate, and if the noble Lord looks at his speech, he will see that.
LORD SILKIN: If the noble and learned Viscount says that, I disagree with him, because I put them both equally. I did not see mere modification of the law as a justification for this Bill. It was because I wanted to extend the law to cover cases such as were set out in paragraphs (b), (c) and (d) that I took it upon myself to introduce this Bill. I would certainly never have thought it
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worth while—somebody might have been willing to do it, but certainly not I—merely to legalise the Bourne case and the other cases which had been before the courts.
The purpose of this Bill is to extend the law, and the original paragraphs (b), (c) and (d), although I have modified them and used different language, are substantially incorporated in the Amendments which the Committee have been considering on Clause 1. There is no difference in principle between paragraphs (b), (c) and (d) of the original Bill and the paragraphs on the Amendment which is now before the Committee. Therefore, the noble and learned Viscount need not have been taken by surprise. This is not a substantially different Bill, except in wording, from the original Bill which was given a Second Reading by the House, including the noble and learned Viscount himself. This Bill has not been modified at all in principle.
The noble and learned Viscount said that, as a result of passing Clause 1, we should lose the support of a number of noble Lords who would otherwise have supported the Bill. But with these provisions in the Bill, we had a big majority on Second Reading.
VISCOUNT DILHORNE: The noble Lord cannot say that provision (c) in the Bill is the same as provision (c) in this new clause. The wording is quite different. One has to interpret the Bill according to the wording, and the new clause according to its wording.
LORD SILKIN: I do not agree that there is a substantial difference. Moreover, the noble and learned Viscount devoted a good deal of his speech to rearguing the case, which had already been argued at great length in Committee, a large number of your Lordships taking part in the debate and coming to a decision. I would remind the noble and learned Viscount that, though he may not like the decision (I quite understand that; it has happened often in the past that I have not liked a decision of this House, but nevertheless I have had to accept it with good grace, and I hope that he will do the same), it was made by a substantial majority in a well attended Committee. There is no doubt that the issues were appreciated by noble Lords who listened attentively and came

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to their conclusions. And I suggest that noble Lords are quite capable of forming a conclusion on a matter of this kind. So, while the noble and learned Viscount is quite entitled to oppose the further stages of the Bill, because an Amendment was passed of which he does not approve, I do not think we want to re-argue the matter at this stage.
Therefore, while I take note of what the noble and learned Viscount, Lord Dilhorne, has said, and will certainly consider it, I cannot promise him that I can do anything about it, as the Committee has already come to a decision on this point. I hope that the Committee can now agree to this Amendment.
Amendment, as amended, agreed to.
Clause 2 [Pregnancy not to be terminated after sixteenth week]:
4.2 p.m.
LORD SILKINhad given Notice of his intention to move to leave out Clause 2 and insert the following new clause:
Conditions to be satisfied
".—(1) In determining the matters referred to in section 1(a) of this Act a registered medical practitioner may take into account such circumstances, whether past, present or prospective, as are in his opinion relevant to his patient's physical or mental health.
(2) A termination of pregnancy under section 1(d) of this Act performed on the ground of rape shall require the certificate of a registered medical practitioner but no such certificate shall be given unless the woman who alleges she has been raped has consulted the said registered medical practitioner as soon as practicable after the alleged rape and there was then medical evidence of sexual assault upon her.
(3) Before terminating a pregnancy the registered medical practitioner performing the termination shall obtain the consent in writing of the pregnant woman or, if under sixteen years of age, of one of her parents or of her guardian."
The noble Lord said: I beg to move the new Clause 2 standing in my name. This consists of three subsections, and I propose to say a word about each of them. The first subsection, as it now stands on the Marshalled List, is, I hope, an improvement on the original which was in the first instance put before the Committee. The noble and learned Viscount, Lord Dilhorne, had down an Amendment to delete the original subsection. I have now withdrawn the original one and he may claim, if he so desires, that he has had insufficient time
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to consider the new subsection. It is an improvement in a number of respects. It provides that:
"In determining the matters referred to in section 1(a), of this Act"—
that is the provision for an abortion on the ground of ill-health or danger to life, about which we have heard a good deal—
"a registered medical practitioner may take into account such circumstances, whether past, present or prospective, as are in his opinion relevant to his patient's physical or mental health."
Under this provision he is not to consider whether there will be danger to the health of the patient; he has to consider whether the patient is capable, in view of her past medical experience, present health or future prospective health, of giving birth to a child. I have also modified this so that it relates only to paragraph (a) of the new Clause 1, whereas in the earlier draft it related to the fact that a doctor had to consider those factors in (I think it is) paragraphs (b) and (c).
Subsection (2) of the new Clause 2, as printed, provides for the termination of pregnancy in connection with rape, and as the provision as to rape has gone, this subsection also goes, and I shall ask the Committee to accept the revised clause on that basis.
VISCOUNT DILHORNE: If I may interrupt the noble Lord, do I take it from what he has said that he will be moving only subsections (1) and (3) of this Amendment?—because in that case, there will be no need for me to move my Amendment.
LORD SILKIN: Yes. I am saving the noble and learned Viscount one more objection by moving only subsections (1) and (3). Subsection (3) relates to consent. Before terminating the pregnancy the registered medical practitioner has to obtain the consent in writing of the pregnant woman. I do not wish to anticipate it, but there is an Amendment down by the noble Earl, Lord Lytton, to delete the word "or" and insert the word "and", so that the subsection would read:
"and, if under sixteen years of age, one of her parents or of her guardian".
I think the clause is self-explanatory. I beg to move.
Amendment moved—
Leave out Clause 2 and insert the following new clause—
(".—(1) In determining the matters referred to in section 1(a), of this Act a registered medical practitioner may take into account such circumstances, whether past, present or prospective, as are in his opinion relevant to his patient's physical or mental health.
( ) Before terminating a pregnancy the registered medical practitioner performing the termination shall obtain the consent in writing of the pregnant woman or, if under sixteen years of age, of one of her parents or of her guardian.".—(Lord Silkin.)
THE CHAIRMAN OF COMMITTEES: I now have to call on the Amendments to the Amendment before the debate on the original Amendment is continued. I therefore call on Amendment No. 13, in the name of the noble and learned Viscount, Lord Dilhorne. I now understand this Amendment is not being moved. I therefore call on Amendment No. 14 as an Amendment to Amendment No. 11.
LORD MOLSON: I understood the proposal was that the noble Lord, Lord Silkin, would move only subsections (1) and (3) of his new clause, and not the whole Amendment.
THE CHAIRMAN OF COMMITTEES: I am obliged for that correction. The Amendment that has been moved is a new clause incorporating subsections (1) and (3) only, omitting subsection (2). I now call on Amendment No. 14 in the name of the noble Earl, Lord Lytton, as an Amendment to Amendmdent No. 11
THE EARL OF LYTTON THE EARL OF LYTTON moved, as an Amendment to the Amendment, in subsection (3) to leave out the first "or" and substitute "and". The noble Earl said: This is a very simple and brief Amendment, and I will read the clause which it proposes to amend up to the point where I hope to amend it. Subsection (3) reads as follows:
"Before terminating a pregnancy the registered medical practitioner performing the termination shall obtain the consent in writing of the pregnant woman…".
All that follows deprives the girl under sixteen years of age, if she happens to be pregnant, of the right to retain her pregnancy if she so wishes.
We have heard impassioned speeches concerned with her absolute right to ter-
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minate her pregnancy if she so wishes—the absolute right to terminate the life within her womb. The effect of my Amendment—at least it is the intention of it—would be to bestow upon her, notwithstanding the fact that she is under legal age, the right to retain her pregnancy if she wishes, and to say—whatever explanation she may have—" I want my baby, and let no one take it from me." That is the purpose—to secure that freedom. Of course, I may be asked whether I have considered the awkwardness of having a pregnant schoolgirl. I have. And the difficulties about her education. Again, I have. I will refrain from making a long speech, because it has been said in so many speeches already, about this being a matter for consent to terminate a life. But I can hardly believe that anyone would refuse her the right to preserve a life if she so wished. I beg to move.
Amendment to Amendment moved—
In subsection (3), line 3, leave out ("or") and insert ("and").—(The Earl of Lytton.)
LORD STONHAM: In the Government's view, it might be considered doubtful whether subsection (1) of the new clause moved by my noble friend Lord Silkin is necessary, because all it says is that, in considering a question about a woman's health, a doctor may take into account all circumstances relevant to her health. The Government are of the opinion that any doctor would naturally do that. If, in the view of my noble friend and of the Committee, the inclusion of the words makes the issue clear beyond doubt, then the Government see no objection of principle in stating them in the Bill, subject, I would add, to the possibility of a further look at the drafting of that paragraph.
The proposed new subsection (3), which makes it a condition that the consent in writing of the pregnant woman, or, if she is under sixteen, of her parent or guardian, should be obtained, is, so far as the Government are concerned, generally acceptable. We appreciate that the noble Earl's Amendment to the Amendment is intended, as he made clear, as a safeguard against a young girl being bullied by her parents into having an abortion against her will. But it would appear that no reasonable person could possibly want a girl to undergo this operation if she wished, in full

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knowledge of all the circumstances, to have the child.
On the other hand, there may be cases where it is preferable, in the girl's own interest, that she herself should not be required to give her written consent. Take, for example, the case of a girl of twelve who has just been through what is, for a little child like that, a frightfully distressing experience. Quite obviously, she could not realise the full implications of it. Her doctor and her parents would obviously be anxious to avoid doing anything which would add to her distress, as might well happen if this little girl were obliged to give formal consent to the abortion. Indeed, it seems that with these young girls there is a good deal to be said for leaving the matter of the girl's consent to the discretion of the doctors. I am certain that no doctor would wish to perform the operation if he had reason to believe that the girl herself might be anxious to have the child.
Having made the view of the Government clear on the general principle, both of the subsection and of the Amendment to it moved by the noble Earl, I would say that we should like to have a word with my noble friend between now and Report stage, because the question may need special consideration in its application to Scotland. There are differences between England and Scotland in the law relating to minors, and we have to bear this in mind. Subject to that, the Government see no objection to either subsection (1) or subsection (3) of the clause moved by my noble friend, and I hope that the noble Earl will not feel it necessary to press his Amendment.
THE LORD BISHOP OF SOUTHWARK: I wonder whether the noble Lord would be kind enough to inform me whether the words "such circumstances" in subsection (1) could be taken to include the opinion of the father, when known? I do not for one moment suggest that the father should have a determining voice in these matters, but I am sure that any of your Lordships who have had to deal with these matters, either doctors, lawyers or clergy, will know that in these matters the relationship between husband and wife can sometimes be extremely delicate. If you can get them to agree that an abortion is necessary and desirable, so much the
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better. It will not always work that way, and sometimes there will be a conflict of opinion. But if one can get an agreement, so much the better, and I am wondering whether the noble Lord intends in subsection (1) that there should be some consultation between the medical practitioner and the father, even though—and I add this again—I do not think the father's voice should necessarily determine the outcome.
LORD SILKIN: I hope the noble Earl, Lord Lytton, will not press his Amendment. I cannot conceive of many cases where a child under the age of sixteen would insist upon going on with the pregnancy. But if such a thing did happen—supposing you had a very mature young woman of sixteen who was about to have a child and was anxious to have it—is that not a matter which the two doctors could take into consideration? They still have a discretion as to whether they would carry out the abortion, and I would suggest that, rather than providing in the Bill itself for the girl's consent to be given in writing, it should be left to the doctors to decide in this most unlikely case whether they should carry on with the abortion.
In answer to the right reverend Prelate, there is, of course, no machinery for consultation with the father of the child, and I am reluctant to overburden this Bill with additional machinery. Indeed, I rather fear that already the machinery in the Bill may act, in some circumstances, as a deterrent to a pregnant woman, and possibly force her to go to the back streets for her abortion, which I am sure nobody would desire. I do not myself see what is the advantage of consulting the father. In the normal course of events, the father and the mother of the child would be in consultation anyway; their views would have been expressed. It is not suggested that the father's intention should prevail. Is it merely that the father's opinion should be given to the doctors as a factor in helping them to decide whether there should be an abortion? If the criteria laid down in the Bill are adequate and clear, as possibly they are not at this moment, could the doctors go outside those criteria and take a further factor into account, even if it is not a decisive factor, namely, the wishes of

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the father? I fail to understand what would be the purpose of having this additional factor introduced.
If the wishes of the father are not to prevail, and indeed cannot count, because they can neither add to nor subtract from anything in paragraphs (a), (b), (c), and (d) in the new Clause 1, then they would be quite irrelevant, although perhaps interesting to the doctors; and I hope the right reverend Prelate will see the force of that point. I know he referred to this matter on Second Reading, and I did give it consideration, but on reflection I felt it would be an unnecessary complication if it were included in the Bill.
On Question, Amendment to Amendment negatived.
4.22 p.m.
LORD STRANGE LORD STRANGE moved, as an Amendment to the Amendment, at end to insert:
"( ) Before terminating a pregnancy the registered medical practitioner performing the termination shall obtain the consent in writing of a female Welfare Officer appointed by the local authority.
( ) Where consent to terminate a pregnancy is refused the Welfare Officer shall, so far as practicable, ensure that care is taken of the physical and mental health and wellbeing of the pregnant woman and of the child if born."
The noble Lord said: My Amendment is in two subsections, and as each subsection has an entirely different background to it I will take one subsection at a time. I will first deal with the background of the first subsection. As we have heard in this discussion, a great number of persons may have to be consulted before an abortion can take place. There is also the question of whether it should take place in a hospital or a nursing home or some other suitable place. These are questions which will cause a good deal of delay while consultations are taking place, and I think it is essential to have a welfare officer to act as a liaison officer, who will know the case from the beginning and will be able to expedite it if an abortion is to be performed. From what I have read in regard to Abortion Acts on the Continent, there appears to be a good deal of trouble through delay in the consultations: therefore I think a welfare officer would speed the matter up.
The second point is that it seems important that a careful record should be
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kept of these abortions, both before and afterwards. In this country we have not a great deal of information about abortions and, of course, the backstreet abortionists seem to be rather "cagey" about giving any details of their practice. Presumably this Bill will be in operation for a number of years and it is essential that data should be collected. If a welfare officer is appointed at the beginning of a case, she can follow it right through. I do not think a general practitioner has time to do all this, but a woman welfare officer could combine with the general practitioner in giving a detailed report about the case. A question has flittered around this House about the possibility of a dishonest doctor being able to turn the thing into a racket. I personally am fortunate, because I do not know any dishonest doctors who would do that; but I suppose there is always the possibility, and if a woman welfare officer was in at the beginning, it would make it much more difficult for a racket to take place.
The vital point is that this is a Bill for women and not for men. It concerns women: it concerns their past, their present, and very much their future therefore I think a woman should have a say in what goes on. As we all know, women have certain instincts, and as a result they look at life in a quite different way from men. For instance, they are horn with a strong instinct for secrecy. A woman keeps secrets which do not really matter very much to herself and certainly not to anybody else, but another woman will accept this as part of her make-up. A woman will have secrets that she will never tell the doctor, and another woman, acting in the capacity of a liaison officer with the doctor, would be of great value.
Again, women have very strong instincts, going back through their forbears, giving them an insight when there is danger. They have an instinct which is able to protect them, and they perceive danger ahead, especially at a time of pregnancy. When a man argues with a woman, he argues logically on all the facts he knows, and very often the woman argues back illogically, but she is arguing through this danger instinct which tells her of factors which either exist but of which she does not know, or which come up in the future. I admit that very clever and well-educated women suppress this

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instinct, and argue logically, but what I have just described is always the case in the ordinary family row. After a bit, you find the woman's illogical arguments have come out right, and she adds insult to injury by saying, "I told you so." We know perfectly well she could not have told us so, because she did not know, but she has this instinct. That would be a vital asset when talking with these distressed and pathetic women.
Then, again, a woman will take an entirely different view. A woman welfare officer would look upon the pregnant woman as her sister, because women are compassionate to each other in distress. She will think, "You would not be here if it had not been for some man"; she would not put all the blame on the woman but would take the view that some man was responsible, whereas, of course, we know that it could have been the result of an accident. We live in a mechanised age, and sometimes these labour-saving devices break down.
A woman welfare officer would sympathise with a pregnant woman if she was left alone and a man did not support her, but that is not necessarily a view which a man would take. Of course, sometimes a man would turn up and support the pregnant woman, and in a few cases the welfare officer might act as a matrimonial agency. There are other arguments, which are either legal or medical, but I do not wish to comment on them because in this House we have the best lawyers and legal minds in the country. Also, if this were a theatre and I called, "Is there a doctor in the House?" some of the best medical brains in the world would come forward. So I await your Lordships' wisdom on this Amendment. I beg, to move.
Amendment to Amendment moved—
At end insert the said subsections.—(Lord Strange.)
LORD SILKIN: Let me say at once that I am very sympathetic indeed to the introduction of a welfare officer into cases of this kind. I hope that he will frequently be brought into consultation. I think that the Bill as now amended, which introduces as one of the two medical practitioners a hospital doctor, will make it very much easier for the welfare officer to be in the picture, and I very much hope that in doubtful cases,
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particularly cases such as those under Clause 1(c), the welfare officer might be brought in. What I would deprecate, however, is to introduce this into the Bill. It is an additional complication. If, as stated in the Amendment, her consent has to be given in writing, it is going to make it much more difficult for a woman who is perfectly entitled to have an abortion, and ought to have an abortion, to get one. Moreover, while I would agree that, on the Bill as amended, where we have introduced matters outside the purely physical or mental condition of the mother a welfare officer would have a contribution to make, that would not apply to the medical provisions of the Bill. She would have no contribution to make regarding Clause 1(a) or 1(b) or 1(d). In any case, this Amendment would have gone too wide.
However, my real objection is to introducing into this Bill an additional complicating factor where in many cases it is not necessary and would not be helpful; but I hope that in cases where it would be desirable the welfare officer would be brought into consultation. I would in any case deprecate the requirement that she would have to give consent. I think she should be asked, consulted where necessary, and then it would still be for the two doctors to decide whether the abortion should take place. I hope that the noble Lord, who put his case so moderately, will be content with my expressions of sympathy with the objectives he has in mind, and I believe that the speech he has made will have some influence hereafter on introducing the welfare officer into the picture in those cases where it would be desirable. With that somewhat nebulous assurance, I hope the noble Lord will see his way not to press it.
THE EARL OF IDDESLEIGH: I am very glad for once to find myself in agree-men with the noble Lord, Lord Silkin. I am altogether opposed to the welfare officer, who may be a person of my convictions or of those of the right reverend Prelate the Bishop of Exeter, being asked to give consent to this matter. I would suggest to the noble Lord, Lord Strange, that he might on Report consider requiring statutory consultation—not consent but consultation—with a welfare officer before any abortion is performed under I Clause 1(c). There I would have at any

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rate some sympathy with his aims. But I agree it would be altogether dangerous to require the woman's consent.
BARONESS SUMMERSKILL: I, as a woman, would say a word on this occasion in reply to the noble Lord's sympathetic exposition on women and his detailed analysis of a woman's mind. Having listened to him with some fascination, I have come to the conclusion that he must have had a tremendous amount of experience in his life with all kinds of nice women. I would just say this to him. I dislike having to say that this cannot be acceptable because if he looks at the first part of his Amendment he will see that in fact it is making the welfare officer the final arbiter. Indeed, if we accepted this Amendment what we should be doing is to cancel out the provision which makes the two doctors the people to certify in the first place; the final arbiter would be the woman welfare officer.
However, having said that, may I assure him that I hope that if this Bill reaches the Statute Book and is implemented it will be appreciated by the local authority that it is very necessary to inject the woman welfare officer into the whole machinery of the operation in its broadest sense. On behalf of the women of the country, may I thank the noble Lord for the speech he has made, which I am sure everybody who reads it will view with satisfaction?
LORD STRANGE: In a long life I have learned that one never gets what one wants and it is as well to ask for something more than you want. When one asks for something as outrageous as I have done here, everybody gets up and speaks about it. You take it away, and there is no argument left, and your Amendment can go through. Some days ago (I forget which day; I have sat and coughed through these proceedings for so long) I wrote out the Amendment I wanted to make to my own Amendment. That was for consultation and assistance by a liaison officer, which I think is important, so the Amendment would provide that a female welfare officer would be called in as early as possible for consultation and to act as a liaison officer throughout the case. That is not very much to ask to be passed. I beg to move.
On Question, Amendment to Amendment negatived.
THE DEPUTY-CHAIRMAN OF COMMITTEES (LORD AIREDALE): That disposes of all the Amendments to Amendment No. 11.
LORD STRANGE: There is the second Amendment.
THE DEPUTY-CHAIRMAN OF COMMITTEES: There were two subsections which together comprised Amendment No. 15, and as I understand it Amendment No. 15 has been disposed of, and so indeed have all the Amendments to Amendment No. 11. Therefore, the Question now before the Committee is that Amendment No. 11 be agreed to, but before putting the Question to the Committee I think it would be helpful if I reminded your Lordships once more that in moving Amendment No. 11 the noble Lord, Lord Silkin, moved only subsections (1) and (3) as printed and did not move subsection (2) of Amendment No. 11. The Question now is that Amendment No. 11, as moved, be agreed to.
On Question, Amendment agreed to.
4.39 p.m.
LORD SILKIN LORD SILKIN moved, after Clause 2, to insert the following new clause:
Notification
".—(1) The registered medical practitioner who terminates a pregnancy shall within seven days thereof notify the Chief Medical Officer of the Ministry of Health in a form to be prescribed by the Minister and containing such information as he may prescribe of such termination.
(2) The information contained in such notification shall not be made public or divulged by the Chief Medical Officer of the Ministry of Health to any person other than a police officer duly authorised to obtain such information.
(3) Failure to comply with the requirements of subsection (1) of this section shall be punishable on summary conviction by a fine not exceeding one hundred pounds or in case of a second or subsequent conviction by imprisonment for a term not exceeding three months or by a fine not exceeding two hundred pounds or both."
The noble Lord said: This is a provision for notification of abortions after they are carried out. The requirement is that the medical practitioner carrying out the abortion should notify the Chief Medical Officer of the Ministry of Health within seven days. It provides

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that this information shall be compiled but shall be kept secret; not open to the general public, not made available in the ordinary way by search, except to a police officer duly authorised. The reason for excepting a police officer, of course, is that there may be an allegation or complaint that an abortion has been improperly carried out, that false information has been given. There may be in contemplation a prosecution, and the justification for making an exception of a police officer is, therefore, to assist in the course of justice.
Subsection (3) provides for a penalty in the event of failure to give such information to the Ministry of Health. This is a matter which was carefully considered by the Inter-Departmental Committee, under the late Lord Birkett, which reported in 1939. They made a recommendation much in the form in which my new clause appears. I must say, in all frankness, that this provision for notification has met with a great deal of criticism from the medical profession and from a number of strong advocates of abortion law reform. It is said that the compilation of this information will serve no useful purpose, unless it is in such detail and in such a form as would make it onerous for the medical practitioner to have to supply it. And it is said that one of the complaints of medical practitioners to-day is that they have too much form-filling; that a document of this kind, to be of any use at all, would have to be in a most elaborate and detailed form, and therefore may act as a deterrent. That is the case which is being put: that unless it is in that form the notification cannot be of great help.
A further objection put to me relates to any possible disclosure of the name of the patient. I think that this criticism can be met by having the form in two parts, perforated. The first part, which is filed as part of the record, would contain merely a number; and the second part which would be kept quite separately would contain the name of the patient with the corresponding number. So that, if need be, the name of the patient could be ascertained, but anyone looking at the form itself would not be able to identify who the patient is. That might meet the objection about the divulgence of the identity of the patient, although I myself do not give much weight to that.
I think that in the years to come, possibly in five or six years or later, an abortion, especially if carried out on the grounds set out in this Bill, will be considered as no more important, as no more significant and no more culpable than any other operation. At the present time, the word "abortion" has a nasty flavour about it. In fact, I was urged to alter the name of the Bill to something much more colourless, so that the public might not recognise that it is an Abortion Bill. But I thought it was best to face the issue frankly, and let it be known what the intention was. I am quite sure that the implied culpability of having an abortion in the years to come will not be anything like what it is at this moment, when the public are quite unfamiliar with the legal aspects of it, and when abortion is carried out on such a large scale as a criminal offence.
Finally, this clause has been criticised on the ground that subsection (3) makes the penalties far too heavy: up to £100 for failing to notify within seven days, and a fine not exceeding £200 for a second offence, together with a term not exceeding three months' imprisonment. That the medical profession thinks is far too severe in any case, even if we ought to have notification. While I have put this clause down (it is a recommendation of the Inter-Departmental Committee; and, may I say, I put it down to please the noble and learned Viscount, who I am sorry to see is not here, because I could have given him great comfort by reminding him of this fact), nevertheless, I have a completely open mind about it. If there were strong resistance to this provision, I should be quite prepared to reconsider it, although I am bound to ask the Committee at this stage to approve this clause. I beg to move.
Amendment moved—
After Clause 2 insert the said new clause.—(Lord Silkin.)
4.47 p.m.
LORD AMULREE: I am extremely pleased to hear what the noble Lord, Lord Silkin, has just said, that supposing there were considerable opposition to this new clause he might be prepared to reconsider it. It is a clause which has caused me a good deal of trouble and worry, because it makes for something entirely new in the system of notification in this country. For quite a long time

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now the notification of births, and indeed of still births, has been obligatory. They have always been of the fœtus or child, or as still-births which have reached the 28th week. At the same time, notification to the local authority of certain infectious diseases has been required. That has been done, not for the sake of the sufferers of the disease, but to enable the local authority to know the extent of the problem, or the extent of the epidemic, so that they could take the proper preventive measures to see that it should not spread. There have been one or two diseases which have been regular in the country—not epidemics—like pulmonary tuberculosis, which have also been notified: but that, again, has been done largely from a preventive point of view.
The same thing applies to the crop of industrial diseases, consisting largely of diseases acquired by people working in factories from the material from which they work. One can think of lead poisoning, contracted by people who work with paint, by reason of too large a proportion of lead, mercury phosphorus, or because of various other dangerous drugs which are used in manufacture. Certain examples of cancer of the skin have been notified, too, so that the cancer-producing element can be prevented. And there has been notification of fatal accidents occurring in factories, so that measures can be taken to prevent them from recurring. But I can see no reason at all why there should be notification of these, what I might call, therapeutic abortions. It is something entirely new as a medical concept, because no other surgical operation needs to be notified to the Ministry. If the purpose of this Bill is to defeat the backstreet abortionist, then I can see no reason why we should not make the process as simple as we can. Furthermore, if one wanted to find from such notification the total number of women subjected to these therapeutic abortions, it would not cover those who could afford to have abortions carried out privately in a nursing home. So it would mean that the figures would not be at all accurate, and I am not at all sure that notification is the proper way to get statistical information of the health of the people.
There are two more points I wish to make. I feel that it would be a dangerous thing if the first part of this new
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clause were to be accepted—that is, that the police should have access to these confidential records. The other matter is that I cannot see why the penalties have to be so appalling. It is an enormous fine, and it would be wrong to pass such a provision as that. Therefore, I very much hope the noble Lord will reconsider this Amendment.
LORD DERWENT: I wonder whether the noble Lord would consider, on the other hand, a rather opposite point of view. A certificate has to be given in the case of a death. We are here involved in a death, and it may well be that, apart from other diseases for which one does not have to give a certificate, further information may be required about the number of abortions in a particular area in case something is going wrong. I should have thought that in the early years some notification of this kind might well be necessary.
BARONESS SUMMERSKILL: I must confess that until my noble friend, Lord Amulree, put these ideas into my mind, I had not approached the matter as he appears to have done. If a woman is prepared to go into a hospital—and that is where most of them will go, and it will probably be one of the big National Health hospitals with 700, or even 1,200 beds—if she is prepared to go into a public ward and have her pregnancy terminated and the whole thing is recorded in the hospital, and she may well chat about it with the woman in the next bed, and it is accepted as simply as an appendix operation, one would not think that she would mind if it were notified to the Ministry of Health.
I must say that when I saw the word "police" I thought, "This is an outrage. Why on earth should the police be told about this?" Then, having thought about it, and being very anxious to protect both the medical profession and the women concerned from people prying into their business, I came to the conclusion that this had perhaps been put in in order to protect both the women concerned and the medical profession. What happens now? The woman goes in and has an abortion and when she is ill she will say to the doctor, "I have had this done by so-and-so down the road and paid £5 for it". Doctors have to get on with their job, and do not ask questions, but

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when a case is thrust upon them they feel, "We must inform the police." Then the police come in—and this is how the back-street abortionists are caught. They are not caught red-handed doing the abortion. They are caught because some girl is dying, she tells the doctor, and the doctor says, "We have had about six from that area just like this, and they have all been infected. We must do something about it." I thought that in this case the same kind of thing might happen. A woman might say that there had been some irregularity, which we cannot yet envisage. Only at that stage would the police be called in and told, "There has been an abortion and we feel it necessary to tell you."
Coming to the point of penalties, I agree that they appear to be very harsh. I think there are some dozen diseases which have to be notified, and I cannot remember what the penalty is if one does not notify, say, tuberculosis. It is very naughty not to do so, but the doctor may have his hands full; or he may have a bad memory and may forget to notify. There may be some penalties in this type of failure to notify, but the penalties in this new clause appear to me to be horrific. It rather suggests that the whole medical profession is suspect in this matter, with the sort of attitude, "If you boys and girls are going to be naughty, this is what happens." I think we should alter this. After all, one is here dealing with a profession; one is not dealing with a trade. One is dealing with adults. I feel it is quite wrong to put in penalties of this kind, for it suggests that the medical profession is not trusted in this matter. Therefore I would ask my noble friend at least to reconsider the last paragraph.
LORD SEGAL: I rise to support the principle behind this new clause. To my mind, it is quite inconceivable that a revolutionary measure of such medical and legal importance should be passed by this House without an accurate record being kept of the statistics involved. Whatever one may feel about paragraph (3) of this clause, I think it is a primary duty of the House that, if it allows these operations to be carried out anywhere outside a recognised hospital, for example in a nursing home or in a consultant's private surgery, as seems to me still possible within the clauses which have
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been passed by this Committee, there ought to be some obligation on the doctor to see that a strict record is kept, if only for statistical purposes.
LORD AMULREE: May I interrupt the noble Lord? I am sure nobody would object to records being kept. What one objects to is notification being made to the Chief Medical Officer.
LORD SEGAL: I am still dwelling simply on the principle that records should be made available. When we hear such widely divergent figures as 10,000 abortions being carried out in a year, and other estimates of 100,000 abortions or more, it is most important that we should know accurately what the effect of the Bill is going to be; also that we should know not only about its immediate effects but about what the trend is going to be in successive years. I would urge on your Lordships and on Lord Silkin not to withdraw this principle of notification, certainly while these operations are permissible in other locations than in recognised hospitals.
As to the degree of punishment following failure to comply with these requirements, to my mind it could be conceivably justified in gross instances where a doctor repeatedly failed to keep any record of the number of cases of abortions which he had carried out. We must remember that at the moment there is no obligation whatever upon the doctor to keep notes or details of any cases he investigates or any operations he carries out. Therefore it is most important that this principle should be retained in the Bill.
5.0 p.m.
LORD STONHAM: My noble friend Lord Silkin has already given in advance an assurance that he will look at quite a number of points. Therefore, I hope he will allow me to mention some of the points that the Government have in mind in regard to this Amendment, so that he can take them also into consideration.
The noble Lord, Lord Amulree, said that this requirement of notification applied to no other form of surgical operation. I can think of no other form of surgical operation where anything more is required than the consent of the patient, or of someone such as the next of kin who is giving consent on behalf

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of the patient. Here we are considering a very different matter. We are considering the termination of a pregnancy on certain specified grounds which, if this Bill becomes an Act, will be legal. If a pregnancy is terminated on other grounds not specified, it will be illegal and will be regarded as a very serious offence.
I should like to make it clear to the Committee, and to my noble friend Lord Silkin, that the Government think it a very desirable and necessary safeguard to have some form of notification of operations performed under the terms of this Bill. I would also say that the Government think that, in general intention, the present provisions of this clause are satisfactory, but we should like to have an opportunity of considering further the precise form of subsection (1). In so far as the principle is concerned, we warmly support my noble friend's proposal, but the Government have as yet reached no conclusion on exactly who should be the recipient of the notification. In our view, it will probably be more convenient for the subordinate instrument, mentioned in subsection (1) of the clause, to cover this point as well. We think that separate provision will almost certainly have to be made for Scotland, where the Ministry of Health is paralleled by the Scottish Home and Health Department.
I do not wish to comment on the views that have been expressed with regard to the nature of the penalties. But if my noble friends will examine other Acts of Parliament concerning what are regarded by most people to be very small offences, they will find that a fine not exceeding £100 or the possibility of a term of imprisonment not exceeding three months now applies to what may be regarded as minor offences. But I do not think that anyone, while wholly approving of therapeutic abortion in accordance with the terms of this Bill when it becomes an Act, would regard other abortions as a minor offence.
The last point which I should like to make is that the Government feel that subsection (2) of the clause dealing with information, in which the police are mentioned, might be too restrictive. I say that because, as it reads, it might prohibit disclosure of information contained in the notification to persons who ought properly to be told of it; for
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example, lawyers, for the purpose of criminal proceedings, or in the course of such proceedings. My noble friend has given an assurance that he will look into all of these matters, and I hope that, in addition to what was said earlier, he will also bear in mind what I have now said.
LORD SILKIN: Certainly I will take into account what has been said, not only in this Committee but also outside. I think that the medical opinion in this Committee is two to one in favour of this clause. However, there is very strong objection to it outside, and one is bound to take account of that objection, which I certainly will do. May I say to my noble friend—who I think rather hinted that the question of the body to whom notification should be given should be reconsidered—that I have given a great deal of thought to the matter of notification, as have many other people. One suggestion is that it should be made to the police, which I am sure would not be acceptable to the vast majority of people. I believe that that was the recommendation of the Inter-Departmental Committee.
LORD STONHAM: May I just interrupt my noble friend on this point? It was certainly never the view of the Government.
LORD SILKIN: I am delighted to hear that. I hope that my noble friend will interrupt me again on the same lines. Another suggestion was that notification should be given to the coroner, and I hope that that will not be accepted. A third suggestion was that it should be given to the local medical officer of health, and not to the Ministry of Health. I think that the serious objection to that was the difficulty of keeping the information confidential. After considering all the alternatives that I could think of, I came to the conclusion that, if there was to be notification, the person most suitable to receive it was the Chief Medical Officer of the Ministry of Health.
LORD STONHAM: May I just say to my noble friend that it may well be—and I hope that he has not read too much into what I have said—that at the end of the day we shall agree with him. I am merely saying that we might have some minor modification to suggest.
LORD SILKIN: I hope it will be very minor. As to the penalties—and, certainly, one must look at comparable penalties in the Statutes—I would point out that, of course, the starting figures of £100 and £300 are maxima. If a doctor were a few days late in giving notification, then I cannot conceive any bench imposing the maximum penalty or, for a second offence, sending him to prison for three months. That is quite out of the question. But it is customary to have maximum penalties in Statutes of this kind. Where a doctor is habitually refusing to give information about abortions there must be some sanctions, and it is desirable, therefore, to have fairly stiff maxima, even though they may be too high. However, I shall give this question further thought and come back either with the same clause or with some modification of it.
On Question, Amendment agreed to.
Clause 3 [Burden of proof]:
LORD SILKIN: I beg to move that Clause 3 be deleted. This deals with merely a rearrangement of the original Bill by which Clause 3 drops out.
Amendment moved—
Leave out Clause 3.—(Lord Silkin.)
On Question, Amendment agreed to.
Clause 4 [Consent]:
5.9 p.m.
LORD SILKIN: This Amendment is little more than drafting. There is an apparent conflict between the Infant Life (Preservation) Act 1929 and the provisions of this Bill. This clause is intended to provide that the Infant Life (Preservation) Act should be read as subject to the provisions of this Bill. In other words, where there is a conflict between the two, this Bill, when it is an Act, shall prevail. I beg to move.
Amendment moved—
Leave out Clause 4 and insert the following new clause:
Savings
("The Infant Life (Preservation) Act 1929 shall be read as subject to the provisions of this Act.").—(Lord Silkin.)
LORD STONHAM: As I understand my noble friend, the intention of his Amendment is that the provisions of the Infant Life (Preservation) Act should
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be unaffected by the provisions of this Bill. If that is so, then in our view the effect of this Amendment would be the opposite to his intention. The 1929 Act makes the destruction of a viable child before it exists independently of the mother an offence punishable with life imprisonment—unless, of course, it can be proved that the act causing the child's death was done in good faith to preserve the mother's life. If the pregnancy had gone at least 28 weeks, that is prima facie evidence that the child was viable. At first sight there seems a great deal to be said for the view that the 1929 Act deals with a stage of pregnancy after that at which any termination would be performed under the Bill, and that there should be no overlap between the two Statutes, even though this would mean that the requirements of the Bill as to notification would not apply to an operation covered by a 1929 Act exception.
A related problem arises on the connection between the Bill and the offence of unlawfully procuring an abortion under Section 58 of the Offences Against the Person Act 1861. The point is: is it intended that the Bill should state exclusively the circumstances in which an act of abortion is lawful, or could a doctor charged under Section 58 rely on the Bourne interpretation of that section—for example, where an immediate operation was needed to save the mother's life and there was no time to get a second certificate? We have quite clearly to resolve these points before the Bill passes into law; and therefore I hope that Lord Silkin will agree that we cannot at this stage be committed precisely to his Amendment, because in our view something different is needed. He may feel that it would make it easier to resolve this somewhat difficult and delicate problem if he were willing to withdraw the Amendment, so that we could look at it again in the light of his remarks and anything he may now say.
LORD SILKIN: I hope that this is nothing more than a drafting difficulty. I am prepared to concede, of course, that the drafting of even what looks like the simplest possible Amendment on the Paper can be improved; but if my noble friend means something different, then I must join issue with him. I stated quite

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definitely that this Bill and the Infant Life (Preservation) Act may be inconsistent in certain respects. The Infant Life (Preservation) Act makes it an offence definitely (I am summarising) to take life after pregnancy has been in existence for, I think it is, 28 weeks. Under this Bill it may not be an offence if the termination is carried out in accordance with the requirements in Clause 1. The intention is that the clause in this Bill shall prevail over the Infant Life (Preservation) Act. I am quite prepared to consider any modifications of language, but I think I must insist on the provisions that we have just passed remaining. Otherwise, if the Infant Life (Preservation) Act is to prevail, it might well be that everything we have done under this Bill would be nullified, and I am sure that is not what the Committee would desire.
LORD STONHAM: Nor I.
On Question, Amendment agreed to.
5.16 p.m.
LORD SILKIN: This is a definition clause. We have discussed the first part of it—the definition of "defective"—and I do not see how there can be any dispute about the second definition. I beg to move.
Amendment moved—
After Clause 4, insert the following new Clause:
Interpretation
(". In this Act, unless the context otherwise requires, the following expressions have meanings hereby assigned to them, that is to say—
'Defective' means in England and Wales a person suffering from severe abnormality within the meaning of section 4 subsection (2) of the Mental Health Act 1959 or in Scotland a person suffering from mental deficiency of the degree specified in section 96 subsection (7) of the Mental Health (Scotland) Act 1960;
'Registered medical practitioner' means a practitioner registered under the Medical Act 1956 or legislation amending or replacing it.").—(Lord Silkin.)
LORD MOLSON: I raised this matter before, and I do not think I had any answer from the noble Lord, Lord Silkin. I hope we shall not be limited to such very severe defectives as those who are compulsorily confined in a mental hospital. I know that my noble and learned friend took the view that if the noble
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Lord, Lord Silkin, met my point in this matter it would make the Bill extremely controversial. The noble Lord's Bill already is in some degree controversial and is unacceptable to my noble and learned friend. But I maintain the point I made on an earlier Amendment: that there may very well be cases in which a mentally defective woman, who is married, probably, to a mentally defective husband, has had a large number of mentally defective children. Although such a woman may not come into a high category of defective, it may be most desirable, from every point of view, and especially the sociological point of view, that abortion in that case should be legalised.
I did not wholly follow the line of argument of the noble Lord the Parliamentary Secretary. He said that I had "alleged" (which would seem to imply that it was not correct) that a large proportion—I think he may have thought I said "nearly all"—of the mental defectives in this country are the children or the grandchildren of mental defectives. He later went on to say that of the large number of mental defectives in this country, a considerable number are the children of perfectly normal parents. That is perfectly true, but it really does not arise on this Bill.
The fact remains that in the case of the children of mentally defective parents, although it is quite true that a certain proportion of them may be quite normal, a very large proportion are themselves mentally defective. It seems to me that such a case is clearly one which ought to be considered by the doctors, and that the abortion of a mentally defective woman, even if she is only slightly mentally defective, should be legalised if there is evidence from the mental condition of her other children that it is likely that another will be mentally defective—and it would be an entirely relevant consideration to be taken into account that her husband, also, may be mentally defective. I hope, therefore, that the noble Lord, Lord Silkin, will not be deterred from what was said by my noble and learned friend, and that, before the Report stage, he will make sure that the drafting of the Bill does not preclude the legal abortion of a woman, even if she does not suffer from the severe abnormality which is referred to in this Amendment.
LORD SELKIN: The noble Lord has asked me to give him some kind of reply to his desire to widen the scope of this Bill. I deliberately did not reply to it, because I cannot reply at this stage. I have asked the Committee to approve an amended Bill which I placed before it. The noble Lord did not put down any Amendments to widen the scope and he rather sprung it on me. I think it would be improper to give him an ill-considered answer. My own inclination would be to widen it. Frankly, I should like to widen the scope of this Bill. It was apparent throughout the discussions that there were a variety of schools of thought about abortion. There were those who were opposed to it root and branch; there were those who were prepared to accept, with some difficulty, Clause 1(a); there were those who, like the noble and learned Viscount, Lord Dilhorne, were prepared to swallow even the possibility of abortion in the case of a deformed child, but no more; and there were others who were prepared to go all the way. One had to consider the Bill in the light of what the Committee, the House generally and another place would be likely to accept. I do not think the country is yet ready to accept what would almost approach abortion at the request of the mother.
SEVERAL NOBLE LORDS: Oh no!
LORD MOLSON: If I may interrupt the noble Lord, I am sure he does not wish to misrepresent what I am saying.
LORD SILKIN: I am not misrepresenting; I may be misunderstanding.
LORD MOLSON: The whole of the procedure would remain the same, but the degree of mental defectiveness that would be required would not be the very high degree provided for in the existing definition; it would be a degree of defectiveness that made it highly probable that the child born would be mentally defective.
LORD SILKIN: I did not mean to suggest that this Bill would itself make abortion available to anybody who asked for it; but it would certainly make it much more prevalent. There are suggestions, and I know there is a great deal of opinion in this House, that abortion should be made available to any mother who wishes it. While I cannot pretend at this stage that that would be the common view or the majority view, neverthe-
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less it is held by some noble Lords and by a number of people outside. One has to hold the balance, and I thought one had held the balance in this case by sticking to a high degree of abnormality rather than by dealing with the kind of defectiveness the noble Lord has in mind. But if I had any evidence that such an Amendment would be acceptable I think on the whole I should be inclined to favour it. Perhaps the noble Lord will consider whether he wishes to put down something on the next stage of the Bill.
LORD STONHAM: If the noble Lord, Lord Molson, is thinking of that—I do not want to raise arguments in a matter which has already been debated this afternoon—I would draw his attention to the very clear distinction which exists in Section 4 of the Mental Health Act 1959. My noble friend's definition of "defective" refers to Section 4(2) of the Act, which reads:
"In this Act severe subnormality' means a state of arrested on incomplete development of mind which includes subnormality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation, or will be so incapable when of an age to do so."
That is the category of defectiveness with which my noble friend's Bill deals.
The noble Lord, Lord Molson, wishes, as I understand it, to widen the field. I would only refer him to subsection (3) of the same Section of the Act which reads:
"In this Act 'subnormality' means a state of arrested or incomplete development of mind (not amounting to severe subnormality) which includes subnormality of intelligence and is of a nature or degree which requires or is susceptible to medical treatment or other special care or training of the patient."
It is for the noble Lord to decide; but if he does put forward an Amendment, in the light of the discussion we have had earlier, one would hardly feel it desirable that a patient who was "susceptible to medical treatment" and who, therefore, presumably could have the condition alleviated, should be included in the field with which he wishes to deal.
On Question, Amendment agreed to.
Remaining clause agreed to.
House resumed: Bill reported, with Amendments.
House adjourned at twenty-seven minutes past five o'clock.