HL Deb 07 February 1966 vol 272 cc581-601

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—

  1. (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
  2. (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
  3. (c) the pregnant woman is or will be physically or mentally inadequate to be the 582 mother of a child or of another child as the case may be; or
  4. (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).


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 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 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.


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 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 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.


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.


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.


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 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.


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.


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 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 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 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.

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.


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… 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.


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. She makes the same fuss as a child would make. Are you going to let her die?


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", 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.


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, 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?


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 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 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 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 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.


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.