HL Deb 10 May 1966 vol 274 cc577-605

3.52 p.m.

Order of the Day for the Second Reading read.

LORD SILKIN

My Lords, I beg to move that this Bill be now read a second time. The terms of the Bill are identical with the terms of the previous Bill which was passed by this House at the end of the last Session of Parliament, on March 7. In these circumstances, I do not propose to go through the Bill in the usual way and deal with all the clauses. As your Lordships will remember, there was a very full discussion on the Bill which lasted over seven full days, and I think every aspect of it was threshed out, some might say almost ad nauseam. At any rate, there can be no excuse to-day for anyone who took any interest in the Bill not knowing what the terms of it are.

During the seven days it was under discussion, it had rather a chequered career, and the Bill which was finally passed by your Lordships was very different from the amateurish one—I freely admit that—which I originally introduced. Since introducing the original Bill, I have had the advantage of hearing the views of noble Lords in this House, and I have had the benefit of the services of Parliamentary draftsmen, which I had not at the outset, who put forward in proper form the revised ideas as they came through this House. As I have said, this Bill is exactly, word for word, with all faults, in the terms of the Bill which passed your Lordships' House on March 7. As your Lordships will know, although it passed through this House, it did not go to another place. It therefore fell with the end of Parliament, and it became necessary to introduce this Bill afresh, and that is what I am now doing.

At this stage I do not propose to deal with the details of the Bill, or even the merits of it, though I would say this. The issue before your Lordships is not whether abortion should or should not be permissible. It is already being carried out on a large scale, legitimately, as most would say, although there is an element of doubt. Since the Bourne Judgment, some twenty years ago, it has been regarded as permissible to carry out abortion where the life of the mother is involved, or where there is danger to her health, physical or mental. A large number of abortions are to-day being carried out, quite safely and properly carried out, in pursuance of that judgment. But there are also a very large number of illegal abortions. I am not sure whether or not they are more numerous than the legal abortions. I myself estimated that there were something like 100,000 illegal abortions carried out every year. Sonic may say that that figure is too high. I saw recently an article by Professor Goodhart, who thinks that that is a gross exaggeration. On the other hand, a gentleman has recently written a book in which he thinks I am understating the number, and his view is that it is more like 200,000.

Whatever the facts may be—and there is some evidence for the figure of 100,000 that I have put forward, although I do not propose to pursue it—a very large number of illegal abortions are being carried out to-day. It is comprised partly of pregnant women who have the means and are able to go to Harley Street, or to a corresponding place in other provincial cities, and get an abortion in what I might call quasi-legal form. They go through all the motions, they get their abortion, and all is well. Those who cannot afford that are still able, if they know their way around, to go to the back streets and get an abortion, from a totally unqualified person, for a very much smaller sum. But in the aggregate this defiance of the law goes on to a considerable extent, and it is, in my view, most undesirable and dangerous to the life and health of the pregnant mother that this should take place.

There is only one other thing I should like to say about the Bill itself. From the enormous correspondence which I have had since I first began to take an interest in this matter—running into several thousand letters—it would seem that the vast majority of women who are concerned with this are not, as I might have expected originally, single women, but married women, of an age approaching forty or more, with a number of children, who have become pregnant again, very often unexpectedly, and who for one reason or another find themselves unable to cope with an additional child at that age. Some of them are women whose families have grown up and have children of their own. There is a feeling almost of humiliation in such a woman who has to give birth to a child, when she has grandchildren who will be older than the child she is bearing. Those are some of the facts we have to face, and these are the prospective clients for abortion. As I say, if they can afford it, or they know their way around, they can get an abortion through a doctor. If they do not, they go to the back streets. But, in my view, there are something like 100,000 women a year actually getting an abortion.

I have said that this Bill is word for word the Bill which passed its final stages on the 7th March. But I do not want to mislead the House: there are one or two Amendments I shall certainly wish to put forward for the consideration of the House at the later stages. The first is one which has aroused a good deal of controversy. It was first passed by the Committee and at a later stage was rejected by the Committee. Looking through the personnel who voted, I find there was a big change in those who voted in the two Divisions. But, be that as it may, I feel that the House ought to have, with this Bill, another opportunity of expressing its views on the difficult question of what I call the inadequacy of the mother. It may be that I did not formulate this provision as happily as I might have done. I have given much more thought to it now. It is a difficult conception to put into an Act of Parliament, but what I am groping for, and I hope I shall eventually reach something which will be acceptable, is the case of the prospective mother who really is unable to cope with having a child, or another child, whether she has too many already or whether, for physical or other reasons, she cannot cope, but about whom it cannot be said that her life would be endangered or that there would be serious injury to her health. That is the kind of person I want to cater for, and I should like to inform the House that in the course of the Committee stage I will put down an Amendment in an effort to give the House an opportunity of considering it once more.

There is one other, less important, point. The House may remember that in the final stages of the Bill I accepted an Amendment put down by the noble Lord, Lord Molson, widening the definition of a defective. Originally the defec- tive was the abnormal defective; a very high-grade defective. The noble Lord, Lord Molson, was anxious to widen the definition so as to cover particular distinctions in the Mental Health Act, I accepted that, but I warned him that I might have to think about it again. It might be that on consideration I should find that to try to cover all defectives was going a bit far. I have not yet concluded my inquiries into this question, but it may be that I shall put down an Amendment on that point in order to narrow the definition of a mental defective. May I say, in passing, that we have all heard with deep regret of the serious illness of the noble Lord, Lord Molson, who will not be here to vote, although he did look in for a moment. He is on his way to convalescence and I am sure we all wish him well. I miss him as a good friend to this Bill.

I hope your Lordships will give this Bill a Second Reading, preferably without a Division. We may all have our ideas as to what we want to do eventually, but I am sure the vast majority of your Lordships will once more accept the principle of taking some step to deal with the law on abortion: first, with the object of clarifying the law; secondly, with the object of a reasonable extension of the cases where abortion is possible; and thirdly, and in my view by far the most important, in the name of compassion for the large number of women who are going through a most harassing and agonising time and for whom I hope this Bill will give a measure of relief. I beg to move.

Moved, That the Bill be now read 2a. —(Lord Silkin)

4.3 p.m.

VISCOUNT DILHORNE

My Lords, the noble Lord, Lord Silkin, in moving the Second Reading of this Bill on this occasion, said he thought every issue had been threshed out. I would say to him that if ever there was one issue on this Bill which had been thoroughly threshed out it was the question of whether special provision should be made for the mother whom we define as "inadequate". I will not deal with the argument now. If the noble Lord is going to table an Amendment to make us consider the issue again I will deal with it on that occasion, but I am sure your Lordships are aware that if a mother was inadequate in the sense described by the noble Lord, if a mother really could not cope with another child, then another child would be likely seriously to affect her mental or physical health; and such a case would be covered under paragraph (a) of Clause 1 (1).

I do not intend to deal with that kind of point today. It is, I think, the fact, that even if we pass this Bill it will not follow that illegal operations cease to take place —the "back-street abortions" to which the noble Lord referred. The precise number of these abortions in the course of a year is anybody's guess. I do not think there are any grounds for assessing the number at the figure given by the noble Lord, or indeed at any higher or any lower figure. I am sure we should all like to see those abortions, with all the risks entailed, put to an end, but I think we shall be deluding ourselves if we believe we shall do that by passing this measure.

I am in favour of a Bill on this subject and in favour of giving this Bill a Second Reading, but I am very disappointed by this second—or I am not sure whether it should not be called the third or fourth—edition of the noble Lord's measure. I hoped the noble Lord would have amended it in some respects to meet the points made in the debate, or that at least in the course of his speech he would have said that he was proposing to do so during the Committee stage of this Bill.

When the noble Lord moved the Second Reading of this Bill on a previous occasion he put in the forefront of his argument (it was not, of course, his only argument) the need to make the law clear and certain. That is a desirable objective and one which I support. At the present time what is taken to be the law permitting abortions depends on directions given by judges to juries in criminal cases. I doubt whether the full extent of what is now permitted is sufficiently realised, but there are some, I believe, who feel considerable doubt about how far the law permits them to go. I think there is a strong case for putting in a Statute what the law is and what we think the law should be, giving clear guidance as to the circumstances in which abortion is lawful and as to the conditions which have to be complied with.

I think it followed from the noble Lord's argument that Statute Law should replace the Case Law. In my opinion it certainly should, but this Bill does not provide for that. If this Bill is passed in its present form, Case Law will still also apply and there will be two different codes for lawful abortion. Under the Bill, except in cases of emergency, two doctors have to certify that the prescribed conditions exist. The treatment must be given in a hospital and by a doctor holding the appointment of registrar or a higher appointment, and the Chief Medical 011lcer of the Ministry of Health has to be notified. Under Case Law all that is required is that two doctors should agree that the continuance of the pregnancy involvesseriousrisk to the life or grave injury to the health of the pregnant woman. They can then lawfully perform the operation. There is no requirement that one of them must have held an appointment of registrar at least. There is no requirement that the operation must be performed in a hospital under the National Health Service. There is no requirement that the Chief Medical Officer must be informed.

If, despite the passage of this Bill, the Case Law is to remain in force, I wonder whether we are not wasting our time in considering this Bill and in considering under what conditions and in what circumstances the operation may lawfully be performed. You will have the curious position that although under the Bill a pregnancy may be determined on account of the likely condition of the child, or because the woman is defective or the prospective mother a girl under 16, it will not be lawful for two doctors to perform the operation on those grounds under Case Law, and if they do they run the risk of prosecution. I raised this point in our debates last Session and I was then under the impression that the noble Lord recognised and appreciated its importance. I thought then that he was prepared to meet it and to amend the Bill to make it clear that this Bill when enacted would replace the Case Law. I was very disappointed when he did not indicate that this was one of the Amendments he proposed to make during the course of the Committee stage.

As I have said, this Bill does not provide for it, and I hope that when the noble Lord comes to reply he will say why it does not and will give an assurance that he will table an Amendment to provide for this. It may not be easy to draft, but he has, as he said, the assistance of Parliamentary draftsmen, and I feel sure that a satisfactory Amendment can be devised. But if this Bill is not amended in this way I feel I shall have to vote against it on the Third Reading, for I believe that this Bill loses all point, or nearly all point, if the Case Law is allowed to remain in force, and this I regard as a major defect in the Bill.

There are two other defects to which I should like to draw attention. I have spoken of them before, and I propose not to say very much about them this afternoon. The noble Lord, Lord Silkin, has referred already to the width of the definiton of a "defective", and the Bill makes special provision for the termination of the pregnancy of a defective woman. No question of her health is involved, no question whether there is any substantial risk that the child would suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life. All that has to be established is that the woman is defective within the meaning of Section 4 of the Mental Health Act 1959. As the noble Lord knows, it is an extremely wide definition. In my view, in this respect the Bill goes far too wide. I hope that on further reflection the noble Lord, will appreciate that. I am very doubtful indeed as to the wisdom of making any special provision for a defective woman. If there is a risk to the life or health of the pregnant woman it would be far better to leave out this special provision and just to rely on Clause 1(1)(b).

I should like to know what justification there can be for the destruction of a potential human life when there is no risk of injury to the health of the pregnant woman and when there is no substantial risk that the child will be so abnormal that it will not have a prospect of reasonable enjoyment of life. It is certainly not the case, if I understood the noble Lord, Lord Stonham, correctly in the last debates, that defective mothers always produce defective children. I should like to know, too, what steps will be taken to provide for the defective woman's application for abortion. At the lowest end of the scale the defective woman may be nearly, if not quite, in- sane. If so, will she be in a fit state to make the application? In such a case should not the Bill provide that some responsible persons should have power to make the application on her behalf? I should like to know what the noble Lord has to say about that. In the case of a girl under 16 the Bill does provide for the consent of her parents or guardian.

Now I come to what I think is the third defect in this Bill. It is the making of a special provision in relation to the termination of pregnancies of girls under 16. I know that what I say about this may well be misrepresented. I have spoken of it before, and the last time I did so the noble Baroness, Lady Summerskill—I am sorry not to see her in her place to-day—delivered a violent attack upon me, having prepared her speech in the Library in anticipation of what she thought I was going to say. Despite the fact that I did not say what she thought I was going to say, she nonetheless delivered the speech. I really cannot complain about that, but I felt it was a little hard. I would say myself that the right test, the right approach, in all these cases of young girls is to consider what is best for her, for her health, mental or physical. In some cases it may be better for her to have the baby and to have it adopted forthwith, rather than to undergo this operation. But if the strain of bearing the child is likely to involve risk to her life or serious injury to her health then the Bill already makes provision for termination.

What I think is wrong about this Bill is that it gives the girl under 16 a vested right to termination, and to termination even if she is found to be pregnant immediately before her 16th birthday and the child will be born many months later, and without any regard to considerations of health. I think this is wrong, and in every case the health of the pregnant woman or girl and the probable condition of the child are the right criteria. No doubt we shall discuss these matters more in Committee, but they are in my view of such importance that I felt it right to draw attention to them again now. I hope these points will be met, but if they are not I am afraid the noble Lord will not be able to rely upon my supporting him on the Third Reading of this measure.

4.18 p.m.

LORD BROCK

My Lords, much has been said both for and against the proposal to liberalise the law in regard to the performance of abortion. I have my own views, but I do not propose to present them to your Lordships, because they are no less nor more important than those of any other man possessed of average intelligence and of knowledge of the ways of the world. As a surgeon, however, I feel I have a definite duty and responsibility to comment on certain practical implementations of this Bill, should it become law, as seems likely.

When the Bill, in its earlier forms, was presented to your Lordships in the last Session, I was very uneasy about certain omissions. There was, in fact, very little in the earlier stages to ensure that any woman who had an operation to secure an abortion would not be exposed to unnecessary risks. The omissions were especially serious because one of the objects of this Bill is to protect woman from the dangers of the unskilled and illegal abortionist; it is also devised to prevent abuse. The earlier clauses of the Bill were certainly not strong enough to give women the degree of protection which the law desires and which they must have. I was therefore both pleased and relieved to find that in the later amended form, and in the form we are considering this afternoon, two further provisions have been included.

One of these is in Clause 1(2)(a), which states that the operation must be done by a gynecological surgeon holding an appointment as registrar or in a superior capacity in a National Health Service hospital. The other is in Clause 1(2)(b), which states that the operation must be done in a National Health Service hospital or in a place approved for the time being by the Minister of Health or the Secretary of State. And I presume that such an approved place will be a registered and approved nursing home or private hospital equipped with proper surgical, medical and nursing facilities.

As a surgeon, I know that the operation necessary to terminate pregnancy requires skill and experience, especially in the case of a first pregnancy. The procedure used for self-inflicted abortion or by the illegal abortionist, the so-called illegal operation, usually fails to produce a complete abortion. It commonly initiates a process that has to be completed by a trained gynecological surgeon. It is for this reason that a woman who has had an illegal operation is so often admitted to hospital critically ill. To terminate a pregnancy as a definitive procedure requires a more complex operation attended with definite dangers, a fact that does not seem to be generally known and taken into account. It is for this reason that a properly accredited gynecological surgeon should alone be permitted to perform it.

These two extra provisions should inflict no hardship, need offend no one, and they do away with any loophole for activities or for abuse that I am sure we all desire should be prevented. I am therefore pleased and reassured that these two important safeguards have been included in the Bill, and I congratulate those who have had the wisdom and foresight to include them.

4.23 p.m.

BARONESS WOOTTON OF ABINGER

My Lords, I am happy to be the first to express your Lordships' pleasure at the speech which we have just heard from the noble Lord, Lord Brock. During the eight years that I have been a Member of your Lordships' House, some of the most distinguished speeches that I have been privileged to hear have come from eminent members of the medical profession; and we are all delighted that the ranks of that profession in the House are now to be strengthened by the addition of the noble Lord, Lord Brock. We hope that there will be future occasions upon which he will place at our disposal his expert knowledge, in such delightfully simple language as he has used to-day.

When I put down my name to speak in this debate I was under the impression that the Bill which was to be introduced was to be in the form of the original Bill that my noble friend Lord Silkin introduced into the previous Session of Parliament. I am, therefore, in the happy position of being able to throw away the speech that I had felt it would be my reluctant duty to make, and instead to come a great deal nearer to the proposals that my noble friend Lord Silkin has made.

The merit of the present Bill is that, unlike its predecessor, it is a genuine Abortion Bill; and it does not attempt, as its predecessor did, in its original form, to insinuate eugenics under the cover of a measure of reform of the law of abortion. I am certain that it is extremely important that we do not do this. It is important because, in the present state of our knowledge, we cannot do it successfully. As a community we are not agreed on the kind of qualities that we wish to reproduce in the population; and, even if we were agreed on that, we do not have, in the present state of genetic science, the knowledge of which parents are likely to produce offspring that possess those qualities. All we do know is that, in the case of certain limited grave mental or physical defect, there is a high probability that a child born to certain parents will be severely abnormal; and the Bill does take care of that particular case.

So I greatly hope that, in the Amendment which my noble friend has threatened to introduce on the Committee stage, he will not again lay himself open to the objection that he is introducing pseudo-eugenics under the form of a reform of the abortion law. I also hope that, if he is going to take the line that it is undesirable that children should be born into a bad material environment, he will give a great deal of thought to the possible alternative that we should improve the material environment, rather than prevent the birth of the child.

I am glad to see that another of my objections to the previous Bill is met by the provision that the woman concerned must make an application in writing. I know that it may be said that this provision is unnecessary, because no surgical operation can be performed without the consent of the patient. But I would remind your Lordships that consents from people who are in a distressed, emotional state, or who may be of low intelligence, can sometimes be obtained only too easily. I should like to remind your Lordships that if a perfectly normal housewife, in good health, is so foolish as to sign a contract for hire-purchase over the doorstep, she is allowed by law three clear days to revoke her consent. I imagine that consent to an operation for the termination of pregnancy is a good deal more important a matter than, say, signing a contract to purchase a television set or a washing machine.

I also find myself in agreement with the noble and learned Viscount, Lord Dilhorne, on two remaining points. The first is the automatic provision that a girl under 16 shall have the right to the termination of pregnancy. Girls on the verge of the age of 16, as many of us know, are now sometimes quite surprisingly mature; and I think many of us could quote cases in which they have borne children, and have done so quite successfully and happily for all concerned.

Then I hope that my noble friend will consent to modify the definition of "defective", so that it does not cover the subnormals, but covers only the severely subnormals, in terms of the Mental Health Act. Unless that is done, I shall feel it my duty to bring forward a good deal of evidence of the extraordinary range of intelligence and quality of people who are at present registered as subnormals. The severely subnormals, however, are in a quite different category. I greatly hope that my noble friend will consent to make that Amendment. With those qualifications, I find myself in the happy position of being able to give my noble friend much more wholehearted support than I did on the previous occasion, and I do this with great pleasure.

4.28 p.m.

THE EARL OF IDDESLEIGH

My Lords, I am happy to join the noble Baroness in congratulating the noble Lord, Lord Brock, on a distinguished maiden speech. I would pay him the highest compliment that I can pay to a maiden speech: I would say that it was a useful speech. We in this House are here to be of use to our country, and we do not value oratorical flights so much as useful contributions, those made from experience, to our debates. I hope that the noble Lord, Lord Brock, will often be heard again in your Lordships' discussions.

When the previous Bill received a Second Reading in the last Parliament I moved a Motion of rejection. That Motion was overwhelmingly defeated. That defeat I must accept. It is not my intention to divide against the Bill this afternoon. To do so would, I think, show disrespect for your Lordships' judgment. I can rely on the noble Lord, Lord Silkin, who has behaved perfectly fairly by his opponents, and I can rely on his supporters, not to claim that the Bill passed the House of Lords without a Division. That would be mis-stating the position. My objections to the Bill in principle remain as they always were.

As regards the speeches of the noble and learned Viscount, Lord Dilhorne, and the noble Baroness, Lady Wootton of Abinger, I find myself in general agreement with all they have said this afternoon. I hope that in Committee and on Report they will be able to make their views prevail, and I can promise them my support. I must, however, make my position clear in this matter. I object to abortion in principle, and I object to the legalisation of abortion, even though I know that a great deal of abortion is, and always has been, practised. To give the force of law to a course of action which I consider unethical is, to me, a very terrible thing. I must make my position, and the position of my friends, clear on that, although your Lordships will be relieved to hear that I am not going to talk theology. I think it might be more profitable to say a word on the scientific angle.

As I understand the teachings of biologists, they have discovered that all our individual qualities spring from the interaction of two sets of chromosomes which meet at our conception. That interaction sets the pattern of our individuality. What follows may be summed up in the two words, "development" and "growth"—growth which continues till we have reached our full adult stature, development which continues at least until puberty. I can find no point between conception and adult status at which we can properly say that human life begins or that what preceded it was not human. Aristotle, whose thinking greatly influenced the general view of the matter among civilised Europeans, considered that such a point could be found at the quickening, but I understand that very few medical men and embryologists would agree with that view to-day. The quickening has not the importance which Aristotle ascribed to it. It was not in fact the first movements of the foetus; it is only the first discernible movements.

The noble and reverend Lord, Lord Soper, had another and very interesting view. He held on philosophical grounds, into which I will not enter (I am sorry he is not here), that a point could be found with the coming of self-consciousness. That is a very interesting view, and one which deserves exploration, but I should imagine that it would be exceedingly difficult for practical purposes to find the point at which self-consciousness arises. That being my conviction —and I have studied the matter as best I can—I cannot resist the conclusion that abortion does mean the taking of human life: a thing which may be done in some circumstances, but only with every conceivable safeguard, and very reluctantly. Therefore, I would claim that my resistance to the principle of this Bill is compatible with the reverence that I hope I have, and which we all ought to have, for human life as such.

I am well aware that the reverence for human life animates all your Lordships, and not least those who have supported this Bill. I can only say that we see things differently, that we approach the question from different angles. To some who are complete pacifists, reverence for human life forbids participation in any war; to others the atomic bomb is the last horror; and to others reverence for human life forbids capital punishment. All these points of view I respect. I ask only that respect should be paid to the point of view of those who think with me and who consider that reverence for human life should forbid abortion. Having said that, I must submit to your Lordships' judgment and hope that the Bill may receive the Amendments which have been adumbrated by the noble and learned Viscount and the noble Baroness.

4.35 p.m.

LORD RAGLAN

My Lords, on the last occasion we discussed this Bill, I gave voice to some thoughts (I was speaking to an Amendment of the noble Lord, Lord Strange), and I want to clarify two points which I then made. First, I said that I did not think we could legislate to meet the situation while abortion remains a crime. Perhaps I can best explain myself if I point out to your Lordships that this Bill states that a person shall not be guilty of an offence or crime of abortion if"— and so on. This, to my mind, is like saying, "Stealing is a crime, but in certain circumstances we shall allow it, and even encourage it."

It seems to me that, according to this Bill, the answer to the question, "When is a crime not a crime?" is, "When it is not against the law." I get a very strange sensation when I examine this proposition. I think that it comes from standing on my head trying to make the thing look the right way up. Perhaps the noble Lord, Lord Silkin, will kindly explain to me later what logic he sees in it, and why it should not be changed. I suggest to your Lordships that the way to go about things is to enact that abortion is a crime if certain safeguards similar to those in the Bill are not complied with. This will mean rewriting the Bill, but if that is done our law on abortion will be written from what, I submit, is the correct standpoint.

Secondly, the Bill, as it stands, saddles the doctor with a responsibility which I think it is not at all proper he should have. He is to be made arbiter as to which foetus should be removed and which foetus should survive to be born a child. For a sensitive, sympathetic doctor, who has taken great trouble to inform himself as well as he can about a woman and her circumstances, this could be a miserable decision to take, even if in his mind the mother comes first. One doctor could refuse an abortion where another would grant it. What then of the woman and the intolerable, and very likely pitiful, position she may be put into? The only person who can properly decide whether a woman should have an abortion is the woman herself. The doctor's job is then his proper one of advising, perhaps advising against it, and persuading against it, if he thinks right, and the woman is given her rightful responsibility which at present is usurped by out-of-date custom and tradition, and by social stigmas of one sort and another. I am very worried indeed about this responsibility which is to be given to the doctor under this Bill, but I will support the Second Reading of the Bill, and hope that the noble Lord, Lord Silkin, will take account of my criticisms.

4.40 p.m.

THE EARL OF LYTTON

My Lords, I should like in his absence to congratulate the noble Lord, Lord Brock, on his maiden speech, and for having renounced not only controversial matter, which is his traditional duty, but even the expres- sion of his opinions on a matter where he may be something of an expert. I think he almost achieved his aim—and very difficult it is.

During the last Parliament I was associated, mostly with others, in moving several Amendments to this Bill. In regard to a minor one, of which I was the sole mover, it behoves me to-day to thank the noble Lords, Lord Stonham and Lord Silkin, for having embodied, so far as I can detect, the substance of my Amendment in the revised version. It had regard to allowing the under-16 girl the right to retain her baby if she wished; and as it was the noble Lord, Lord Stonham, who asked me not to press my Amendment, as it would be considered, I to-day offer to him, particularly, my thanks. To-day I move no Amendment and I seek no Division, but I hope to move your Lordships in a short speech focused upon paragraph (b) of Clause 1. I think I shall take about four minutes.

On an earlier occasion we debated the degree of unacceptable risk. I listened to an impromptu dialogue between the noble and learned Viscount, Lord Dilborne, and the noble Lord, Lord Stonham, and I thought they seemed to be quite near to agreement on the basis of "odds-on". But the medical profession, from the documents I have seen by doctors in positions of authority, are most unlikely to make an inference of "odds-on" from the word "substantial"—the substantial risk of a severely deformed child. The healthiest of parents run a risk which they tell me is 40 to 1 against. We all run it when we produce a child, however healthy we are, and we accept it; and if the odds in certain cases drop to 20 to 1 against, most of us, I think, accept that, too. But I am reasonably certain that when the odds shorten to 10 to 1 against, some consultants regard the risk as substantial. That is my inference from the papers I have read, one of which I brought to your Lordships' notice during one of the earlier debates. When the risk, as in rubella, is 5 to 1 against, I think many doctors regard it as a very substantial risk; but it is a long way from odds-on to 5 to 1 against.

From what I have heard through listening to your Lordships, I think that most of you are agreed that the monster, if I may call it that, shall not live. My concern to-day arises not from the sentence of death which we are passing, or are proposing to pass, on one afflicted baby, incapable and with no chance at all of enjoying life, but from the fate of the nine healthy babes whom this law will deprive of life which all nine of them would be capable of enjoying. It seems to me that monsters, if that is the right name, look like becoming the hard cases which make bad law. Not all the afflicted will be monsters. Only a small minority of those exterminated will even be afflicted at all. There is no regular ratio of gravity between the affliction and the risk.

This clause authorises the therapeutic or mercy killing of one babe totally incapable of enjoying life. It does so, not in the interest of the mother or society or the State, but in its own interest. Death is prescribed in its own interest. I do not know that there is any other legislation which could be compared with that. But this is not the provision which I am to-day calling in question. The clause as it stands authorises the sacrifice of nine—it may be more, it may be less—good lives, in order that one bad life may not be born. If all ten were allowed, say as a public liability, to go to term from the date of diagnosing grave risk, the correct labelling of all ten would be highly probable instead of being as inaccurate as one chance in ten. Nine healthy infants could be offered to adoption societies, subject to the parental option if they wished to take it. The tenth, if not a monster, could be offered to some other benevolent society. The monster, if such it was, could he certified as such with almost absolute certainty before being consigned to the chloroform tent. If your Lordships are as perturbed as I am about sacrificing so many unquestionably healthy babes in order that one gravely deformed may not be born, I hope you will say: "It shall not be. We must think again."

4.47 p.m.

LORD FERRIER

My Lords, it falls to me from these Benches to congratulate the noble Lord, Lord Brock, on his maiden speech, which was precise, clear, audible and brief. We hope we shall see and hear more of him again.

I rise to support this Bill, which is terribly important and urgent compared with the Bill which is to follow. I hope that the noble Lord, Lord Silkin, will carry his Second Reading, and will carry the Amendments which he foreshadows to replace what I regretted was removed in Committee last Session. I am not satisfied, for instance, that the Bill as drafted covers the type of case which the noble Lord, Lord Silkin, has particularly in mind, and I look forward to seeing an Amendment in that regard. With due respect to the noble and learned Viscount, Lord Dilhorne, I disagree with him that the point has in fact been thoroughly thrashed out.

There is only one opinion which I propose to put forward to your Lordships and which has not to my knowledge been mentioned in any of the debates so far—and I sat through most of them last Session. I am one of those who believe that, under God, a baby is the mother's and, to an important extent in holy matrimony, the father's until it is actually born. My four children were born abroad. There were three British doctors concerned in attending to my wife at various times, and it was agreed in each case between the doctors, my wife and myself that if the baby was manifestly imperfect, it would not survive the birth. The doctors—they are all dead long since—appeared to regard this arrangement as natural and usual, and I therefore do not imagine that it was or is uncommon. Indeed, I mention the point only to sketch in, as it were, the background of why I support this Bill and the other measures which it envisages. It follows that I believe that properly regulated abortion must have a great measure of support and, in my view, legal sanction, such as that provided by this Bill. Moreover, my Lords, as one who has never tired of warning against the population explosion, I believe it is necessary for us all to bear in mind that this step is one of the lines of escape which are open to us-escape from a destruction which may come our way sooner than we like.

4.51 p.m.

VISCOUNT BARRINGTON

My Lords, I ask your indulgence for, I hope, not more than three minutes to say only three things. The first is to have the privilege of congratulating the noble Lord, Lord Brock, on what seemed to me an admirable maiden speech. If, on the twentieth occasion of my talking to this House, I could say as shortly, as clearly and as usefully what the noble Lord has said on his first, I should be very happy, and your Lordships would probably be a good deal happier.

The second thing I want to say is that I feel I ought not to allow this occasion to pass without stating, as shortly as I can, my position on the general principle of this Bill. I am in a minority, in that if I had been present on the occasion of the Second Reading of the previous Bill, when there was a Division, I should at that time have felt that I had to vote against the Second Reading. If there were a Division to-day I should feel the same, although I have no intention of calling one. I can give my reasons most shortly by saying that they are substantially the same as those given by the noble Earl, Lord Iddesleigh. That is to say, I do not take the view I do because I am a member of the Roman Catholic Church, because I am not a member of the Roman Catholic Church; and I do not take it because I think that abortion is against nature. In one sense of the word, all operations, including a Cæarean operation, are against nature.

I do not know what is the technical term for abortion. To call it a Herodian operation would perhaps be unfair, but to my mind it does express the difference between the two, in that the intention of one is to give life whereas the intention of the other—with the best intentions, in many cases—is to take innocent human life. That, as the noble Earl, Lord Iddesleigh, said, is a thing that has to be done sometimes. I think that the more seldom it is done the better; particularly the more seldom it is done legally. And the fact that it is always easier for people who have a great deal of money to get away (if I may put it in that way) with breaking a law (this applies, I think, to robbery with violence, to the law against Sutteeism in India at one time, and so on) is not, to my mind, a valid argument for abolishing that law if one believes that it should exist.

I believe that there should be a law against taking innocent life. It has been modified, as the noble and learned Viscount, Lord Dilhorne, has said, to a great extent by Case Law. There are now circumstances, which are not nearly well enough known by the public, in which a woman can get an operation perfectly legally performed if only she knows of the fact, and if only the doctors with whom she is in touch tell her so. That is not, as the noble Earl, Lord Iddesleigh, said, or as I think the noble Viscount, Lord Dilhorne, said, going to do away with back-street abortion; but the more widely the present law can be known the better.

In the meantime, I should like to associate myself very closely with what the noble Baroness, Lady Wootton of Abinger, said, when she mentioned that she was very glad to see that in its present form—and I emphasise the words, "in its present form"—this Bill does not attempt to do too much in the way of introducing eugenics under the cover of either clarifying or liberalising the law. I think that the ideas both of clarifying and of liberalising it are excellent. My objection, so far as the clarifying is concerned, is that (as I believe it will be found later) the Bill does not clarify it and so far as liberalising is concerned, I do not believe it is a liberal action, except in very rare emergencies, to take innocent human life. I will not go into the question of whether a foetus is innocent, because I think that is obvious; whether it is life, because I think that is also obvious; or whether it is human, because I have already asked. "If it is not human, what is it?" But I hope that, in the course of the debates on this Bill, some answer to that question will be forthcoming which will satisfy me more than any of the answers that have been given previously. My Lords, that is all I have to say.

4.57 p.m.

THE LORD BISHOP OF EXETER

My Lords, I will not detain your Lordships for more than a moment or two. It is quite clear, I think, that it is the intention of the House to give this Bill a Second Reading, but I very much doubt the wisdom of that decision, because the situation has materially altered since the debates in the last Parliament. The situation has been altered, as I see it. by the publication of a Report by the Council of the Royal College of Obstetricians and Gynæcologists. It is extraordinary to me that no mention of this Report has been made by any noble Lord who has addressed the House this afternoon. I hope very much that, before we come to the next stage, the noble Lord, Lord Silkin, in particular—and, indeed, all of your Lordships who propose to vote on the Committee stage—will give this Report very careful consideration. Perhaps I may give your Lordships the briefest possible outline of its contents.

First, the Report asks for clarification of the law, which it says is desirable but not urgent. Next, it considers that the normal calculations of the extent of criminal abortion are almost certainly grossly exaggerated. One of the arguments advanced in support of that statement is that the number of deaths which are known to follow unsuccessful abortion is so small that, if there is this vast number of criminal abortions of which we have heard, then the only possible conclusion is that the risk incurred in a criminal abortion is infinitely less than the risk incurred in an abortion under the best possible conditions in a hospital.

Thirdly, the Council are very anxious that: The indications for legal abortion should not be defined too exactly lest they impose restrictions which do not apply at present, and lest they militate against the flexibility which is necessary to ensure that practice keeps abreast of the ever-advancing medical knowledge and rapidly changing opinion. For example, it would be unwise to mention maternal age specifically as one of the indications"— particularly reference to the age of 16 years. Again, they are insistent that the decision whether or not to perform an abortion should be made only by two doctors of consultant status, one of whom should be the consultant gynæcologist at the hospital where the abortion is to be performed and by whom it is to be performed. They expressly say that the qualifications of a hospital registrar are not necessarily adequate for the making of a decision of this importance. Finally, they stress the importance of this decision, and what disastrous consequences it can, and very often does, have upon the woman, both physically and mentally.

For these reasons, I hope this Report will be given every possible consideration, and that great sympathy will be given to the Council's final demand that we should not rush into legislation in this country before we have made far greater inquiries into the social effects in other countries of the widening and extending of their abortion laws. They particularly ask that a departmental committee, or a committee of some such kind, should be set up to collect the necessary information, so that Parliament may be adequately informed before rushing into what is, on any showing, legislation of immense social importance.

5.2 p.m.

LORD STONHAM

My Lords, I would join with all those noble Lords who have congratulated the noble Lord, Lord Brock, on his maiden speech. I am sure it was a special pleasure to all of us that he, a particularly distinguished surgeon, should have chosen this Bill as a subject for his maiden speech, and I personally was most grateful for the welcome he gave to the fact that we have inserted in the Bill a provision that operations for abortions must take place in recognised hospitals or their equivalent, and must be performed by fully qualified surgeons.

I am grateful to the right reverend Prelate the Bishop of Exeter for his reference to the Report from which he quoted. But, in my reading of it, the report certainly did not deny the need for legislation: it counselled careful consideration and emphasised that legislation should not be rushed. Since this House has already been through this Bill and has spent seven days on it in the previous Parliament, and since we are now going through all the stages again, I think that, so far as we are concerned, we are likely to discharge our full responsibilities. I, for one, would give to my noble friend Lord Silkin my thanks, and indeed congratulations, on the fact that he has wasted no time in bringing this Bill forward for consideration at the earliest possible stage in a new Parliament.

I think it would be fair to say that there is in this House overwhelming support, and in the country majority support, for the reform of the present laws on abortion. Indeed, listening to this debate, and having heard virtually every word of the debate and the Committee stage in the last Parliament, I would say that support in this House seems more universal, and the opposition certainly less militant, than it was when we last discussed this subject. I think also that the supporters of reform (who include, apparently, most noble Lords) can he divided between those who believe that it should be possible for a pregnancy to be legally terminated, at the request of the mother, and those who express genuine concern lest we should make it too easy to deprive an unborn child of life and who wish to impose conditions.

Within the whole field, such a wide range of views is sincerely held that the Government feel that their attitude must be one of neutrality, so that all Members of this House may feel completely free to express their personal views. While remaining neutral as to the principles, we are ready to give whatever help we can by way of drafting assistance and by comment and advice on the practical implications of the proposals. On this, as briefly as possible, I would wish to draw your Lordships' attention to some aspects of the Bill which still call for careful consideration, and I shall include one or two comments on points that have been raised during the debate.

The first of these is a point made by the noble and learned Viscount about the extremely important question of making the law clear and certain, and making it clear whether or not this Bill, or Statute, as it will be when it is enacted, replaces the Case Law. I should like to express my own personal gratitude to the noble and learned Viscount, in that when he raised this important issue in the last Parliament he forbore from pressing it, because he knew that it was a very complex issue which would take a long time to work out. But we agree with the noble and learned Viscount that the Bill should be so drafted as to make it certain that in future abortion would be lawful only if the provisions of the Bill were complied with. I can assure your Lordships that this matter has been very carefully considered, and I would say at once that we accept the principle that this Bill, if enacted, will take the place of Case Law. There is, in fact, I am advised, a case for arguing that the present Bill achieves this; but I will not argue it now. But I will, on behalf of the Government, give the assurance that if it should prove necessary to introduce an Amendment to put the issue beyond all doubt, we shall be very pleased to assist the noble Lord, Lord Silkin, in its drafting.

The next point is one to which my noble friend Lord Silkin himself referred in his speech, and which was also re- ferred to by my noble friend Lady Wootton of Abinger and the noble Viscount, Lord Barrington; that is, the question of mental defectives. This is a matter that we have previously discussed at some length. I am glad to know that my noble friend is having second thoughts on it; because the present position is very unsatisfactory. Clause 1 of the Bill allows the abortion where "the pregnant woman is a defective" and in Clause 3 "defective" is defined as meaning, in England and Wales: a person suffering from subnormality within the meaning of section 4 of the Mental Health Act 1959". and in Scotland, as a person suffering from mental deficiency within the meaning of section 6 of the Mental Health (Scotland) Act 1960. In the 1959 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 was to such a person that the noble Viscount, Lord Barrington, was referring when he said that this Bill, as it stands, would permit an abortion even if it was thought that the child, if born, would be susceptible to medical treatment. Section 6 of the Mental Health (Scotland) Act, 1960 reads: In this Act 'mental disorder' means mental illness or mental deficiency however caused or manifested. This definition is inadequate because, in relation to England and Wales, it should be made clear in the Bill as it stands that it includes "severe subnormality"; and because, in relation to Scotland, the definition goes round in circles and never gets there. Therefore, on technical grounds alone, the present position is unacceptable. But, my Lords, in any case, I agree with those who have suggested that this attempt to define the term "defective" goes too wide. In Scotland it seems to include any form of mental deficiency, however caused or manifested. In England and Wales it would include persons who are susceptible to treatment.

It is fair to ask, therefore, what the Bill as it stands is intended to achieve. Even more pertinent, what is the justification for regarding the defectiveness of the mother as a ground for abortion? Do we want to cover merely the case where there is a real risk that a child will be defective? If so, that is already covered by Clause 1(1)(b) of the Bill. Or is it in mind that a defective might be unable to cope with children and might prove an inadequate mother? I am aware that there are those who think that abortion should be permitted for this reason. But when the Bill was considered last time there were many who disagreed, and I think my noble friend Lady Wootton of Abinger summed up the matter in a way of which only she is capable. She could not accept an attempt to insert eugenics in the guise of abortion. I therefore think that we cannot in this way admit the principle of permissive abortion by subterfuge.

My Lords, I have thought a lot about this matter during recent weeks, because for so many years I have been interested in the problems of mentally handicapped children and their parents, and I have come to the firm conclusion, with my advisers, that there is no practical definition for "defective between the definition of subnormality at present in the Bill, which I suggest is demonstrably much too wide, and the definition of severe subnormality which was in the earlier versions of the Bill, and which we would recommend, when we come to the Committee stage, as the right criterion to adopt.

One other point I wish to raise briefly is the point to which my noble friend Lady Wootton of Abinger referred, namely, the written application or the consent provision. The Bill as at present drafted provides that before treatment for the termination of a pregnancy there must have been an application in writing by the pregnant woman or, for a girl under 16, by her and one of her parents or guardians, for the termination of the pregnancy. This provision was, almost by accident I suppose, inserted in the Bill virtually without discussion, and I submit that it is unnecessary. I know my noble friend anticipated I should say that. I also submit that its inclusion in the Bill will lead to difficulties which we should avoid.

I wish to make perfectly clear that I am in complete agreement with the view that in no circumstances should abortion be carried out against the will of the patient—that would be quite unthinkable. Think, for a moment, of what would be the position were there no written application provision in the Bill. It is the standard practice in National Health Service hospitals—and all therapeutic operations under the Bill would be carried out in such hospitals or their equivalent—that the written consent of the patient, or in the case of a girl under 16 of the parent or guardian, is obtained for any operation, unless for exceptional reasons (for example the need to save life or some such emergency) written consent cannot be obtained. There are also certain positive difficulties about having a statutory provision of this kind in the Bill. Surely it is undesirable to require a woman to make a formal application for an abortion before the doctor has reached an opinion on the matter, because to do so might cause needless disappointment if the application had to be refused, and might make it more difficult for the doctor to persuade her that the pregnancy should not be terminated, if that were the conclusion to which he finally came.

BARONESS WOOTTON OF ABINGER

My Lords, surely my noble friend is not suggesting that the only applications ever to be made will be applications which will be successful? We are always making applications for this, that and the other thing, knowing that they will be unsuccessful.

LORD STONHAM

My Lords, I was in fact discussing the statutory requirement now in the Bill for a written application before anything could be done, and I was considering the effect of that so far as the doctor and the patient are concerned. I submit to my noble friend that there is a further objection to this provision, namely, that it can, and in some cases would, result in the premature disclosure to a woman that she needs an abortion because she is suffering from another serious complaint which cannot be treated until there is a written application for an operation for abortion. I appreciate that these are matters which we can go into in Committee, but I thought it right to warn your Lordships, and that it would perhaps be helpful to my noble friend to say now, that there seem to us to be great difficulties in attaching to the Bill a condition which is in no sense a safeguard against the abuse of Clause 1(1)(a). This is seen if we consider what happens if a doctor fails, perhaps for very good reasons, to comply with the precise provisions of the Bill relating to an application for consent. Under the Bill as it stands, such a doctor, however responsible, would be liable to prosecution for the offence of abortion and the maximum penalty of life imprisonment. I am quite sure that none of us wants to allow that to be a possibility. Somewhat similar arguments apply to the condition in paragraph (c) of Clause 1(2) in respect of certificates.

My Lords, I have said that the Government have adopted a neutral attitude on this Bill. We have given, and will continue to give, all the assistance with regard to drafting that is required. But as the Government are neutral, and we are free to express our own views now, I am free to express my own personal thanks to my noble friend Lord Silkin and my congratulations to him that he has gone thus far, and to promise at least my personal support for the Bill.

5.18 p.m.

LORD SILKIN

My Lords, it is very satisfactory to me that the House seems to be minded to give this Bill a Second Reading without a Division. From the speeches which have been made, I am under no illusion that the same will apply to the Committee stage. It is quite obvious that a great many Amendments will be put down. Indeed, I forecast some of them myself. A number of noble Lords have gone even further than forecasting Amendments: they have made speeches justifying the Amendments which they are going to put down. I am very tempted to endeavour to reply to those prospective Amendments, but I am not going to do so. I shall resist the temptation and listen to the speeches made after I have seen the actual terms of the Amendments.

One point was made by the noble and learned Viscount, Lord Dilhorne, on which I should like to comment. I was a little surprised to hear that there is any difficulty about the position of Case Law once an Act of Parliament is passed. I should have thought that Case Law settled before the Act of Parliament would be superseded by the terms of the Act. That may be pure ignorance on my part. If the noble and learned Viscount, who speaks with far greater authority than I on this matter, says there is a real danger that we may be faced with a conflict between Case Law, under which a doctor can carry out an abortion if he is satisfied as to the danger to the life and health of the patient, and the terms of the Bill it will have to be dealt with. But, subject to that, I think we had better wait for the Amendments as they come, and deal with them then.

I should like to say one word to the right reverend Prelate the Bishop of Exeter, who spoke unexpectedly, but whose speech, nevertheless, was welcome. I think he was the speaker who least welcomed this Bill.

THE EARL OF IDDESLEIGH

Oh!

LORD SILKIN

I think that is so. I do not complain of his views. I recognise that there is a genuine, sincere conflict of views about the desirability of a Bill of this kind; and I am grateful that the right reverend Prelate does not propose to divide the House. I was aware of the views of the gynæcologists and the obstetricians; I have considered them. I have even met a number of them. I was with a number of them in Winchester on Saturday, and we spent the day discussing this Bill. I give them full credit for the honesty and sincerity of their views. But I was not impressed at all with the six reasons they gave, and which they elaborated at my meeting with them, against a Bill at the present time. When they say that we are being rushed into legislation—well, really! There was an inter-departmental committee set up in 1937, which reported in 1939. Since then the British Medical Association have been considering the matter, and the Churches, and we have had their Report. This matter has received an immense amount of consideration in the 27 years since the Report of the inter-departmental committee. To say that maybe we are being rushed into legislation, whatever may be said about the nature of the legislation, is really quite untenable.

THE LORD BISHOP OF EXETER

My Lords, the point that I had in mind was that there are certain countries which since the war have extended the range of abortion. So far as I know, there is little information in this country about what the social effects of that legislation have been. It is the result of an inquiry into that kind of thing, and information as to the extent to which this has been effective in diminishing the number of criminal abortions and so on, that I should like to have before we legislate in this country.

LORD SILKIN

Every speaker has stressed the extreme difficulty, if not the impossibility, of getting really accurate and reliable information of the nature of which the right reverend Prelate is seeking. Though we do our best, and we have all given some kind of estimate or evaluation, I do not think that if we delayed the introduction of the Bill for another 25 years we should be any wiser on the particular aspects to which the right reverend Prelate has referred. I hope that the House, as a whole, will accept this not only as a timely measure, but as one which is really urgent if we are to have in mind the welfare of a large section of the community.

On Question, Bill read 2a, and committed to a Committee of the Whole House.