HL Deb 07 February 1966 vol 272 cc605-34

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. 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, 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 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 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 SILKIN

had 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 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 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- 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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- 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.