Lords Sitting of 26 July 1967

Preamble
The House met at a quarter past eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Wakefield):
THE LORD CHANCELLOR on the Woolsack.

RHODESIA: COST OF BEIRA OIL BLOCKADE
11.16 a.m.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether the Beira naval oil patrol is still in operation; and, if so, what useful function it performs.]
THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON): My Lords, Her Majesty's ships are on patrol in the Mozambique Channel in pursuance of the United Nations Security Council resolution of April 9, 1966, which called upon Her Majesty's Government to prevent the arrival at Beira of vessels reasonably believed to be carrying oil destined for Rhodesia. The success of the patrol may be gauged from the fact that since the United Nations resolution was passed no vessels have succeeded in delivering such oil to Beira.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I thank the noble Lord for that Answer, but does he not agree that, as Rhodesia appears to be receiving sufficient oil for her needs by other routes, this naval patrol could be more usefully employed in areas of the world where British interests are threatened?
LORD SHACKLETON: I am afraid that the answer is, No, my Lords.
LORD SEGAL: My Lords, may I ask my noble friend whether the air patrol of the Mozambique Straits is to be increased and whether the R.A.F. detachment in Swaziland is to be used for this
878
purpose, or what other function it is intended to perform?
LORD SHACKLETON: My Lords, the air patrol is continuing, but not, to the best of my knowledge, from Swaziland.
LORD GRIMSTON OF WESTBURY: My Lords, has the noble Lord seen the leading article in to-day's Guardian which, referring to the policy of sanctions in Rhodesia, says:
"To go on affecting to believe that victory must eventually come puts Britain in the same sad psychological state as those Arab leaders who still affirm that Israel will be swept into the sea."
Is not this rather pathetic blockade of Beira part of that psychological attitude?
LORD SHACKLETON: My Lords, I do not propose to discuss the whole question of sanctions. I will just say that there is a difference of opinion on this matter.
LORD DERWENT: My Lords, may I ask whether any oil tankers have tried to get into Beira in recent months?
LORD SHACKLETON: To my knowledge, My Lords, certainly none has.
LORD STRATHCLYDE: My Lords, would the noble Lord give an indication of the cost of maintaining the patrol?
LORD SHACKLETON: The cost of the combined patrol, including the air side, is about £100,000 a year.
LORD BARNBY: My Lords, could the noble Lord tell us, with regard to this matter, quite apart from the Rhodesian angle (I say this as I happened to have been in the Port of Beira shortly after this patrol was instituted) whether this patrol, in its relationship to the sovereignty of Portugal, has any other recent precedent of action by Her Majesty's Government, since it is understood in Portugal that this not only was an unfriendly action, but came very near to impinging upon the sovereignty of Portugal?
LORD SHACKLETON: My Lords, I do not agree that it does impinge on the sovereignty of Portugal. I am aware that there are strong feelings in Portugal, and it would be a mistake to deny this. I am not aware of any similar incident in the past. I should not like to say positively that there has not been

879
one, but I do not think there has been an occasion where a resolution of this kind has ever been passed by the United Nations.
LORD BARNBY: My Lords, in view of the importance of maintaining friendly relations with Portugal, would the noble Lord look the matter up and make some reply on this matter, if this action really is an infringement of the sovereignty of Portugal in that area?
LORD SHACKLETON: My Lords, I do not accept that it is an infringement of the sovereignty of Portugal. This patrol takes place in international waters under a United Nations' resolution. The noble Lord raised the question of how much damage was being done. There is a great deal at stake, including not only our relations with African States but also the future of African/white relations. I do not think one can look at it purely in the context of Anglo-Portuguese relations, much as I and Her Majesty's Government would regret any damage done to those relations.

TRAIN ROBBERS' LIBEL ACTION
LORD MOLSON: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether Goody, Hussey, Welch and Wisbey were granted legal aid at the public expense in order to bring libel actions against the News of the World and the People.]
THE LORD CHANCELLOR (LORD GARDINER): My Lords, none of the plaintiffs Goody, Hussey, Welch or Wisbey was granted legal aid in order to bring libel actions against the News of the World and the People or anyone. There is in fact a case for contending that legal aid ought to be available in some defamation actions. Under the Act and Schedule as they now are, legal aid has never been available for any form of defamation proceedings.
LORD MOLSON: My Lords, may I ask the noble and learned Lord a supplementary question? Do the Government agree that the rule in Hinds v.
880
Sparks, under which conviction in a criminal court is not only not conclusive, but it is not even admissible evidence in a civil action for defamation, is really a most unsatisfactory state of affairs—indeed, that it is little less than a scandal that convicted persons should be able to sue when it is not questioned that the criminal trial has been perfectly properly conducted and has resulted in an entirely proper conviction? Will the Government consider altering the law upon this subject?
THE LORD CHANCELLOR: Yes, my Lords. The Government do so agree. I think the noble Lord was not here a week or so ago on the Third Reading of the Criminal Justice Bill, when the noble and learned Viscount, Lord Dilhorne, moved an Amendment on this point. I said that I was unable to accept it, first, because this is part of our civil law and it would not be appropriate in a Criminal Justice Bill; secondly, because while we agreed the law ought to be altered, everyone was not agreed on what the alteration ought to be—whether it should be not only admissible but conclusive evidence—and, thirdly, because I had myself some time ago referred this question to the Law Reform Committee and I thought we should await their Report. Today I can add that the day before yesterday I received the Report of the Committee. I at once sent it to be printed and published, and I hope that before we reassemble the Government will have decided whether or not to accept the recommendations of the Committee and, if so, when the necessary legislation can be introduced.

APPEALS FROM QUARTER SESSIONS
LORD MOLSON: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what is the average period between the conviction of an accused person at quarter sessions and the hearing of an appeal to the Court of Appeal.]
THE LORD CHANCELLOR: My Lords for those appeals from quarter sessions which were in the list last week

881
for hearing by the Court of Appeal, the average interval between conviction and hearing was 21 weeks.
LORD MOLSON: My Lords, can the noble and learned Lord the Lord Chancellor say, in that case, how it came about that when the "Rolling Stones" were convicted on June 29 it was arranged that their appeal should be taken before the end of July?
THE LORD CHANCELLOR: My Lords, there are several things which have to be taken into account. The noble Lord has referred only to appeals. Most of the work of the Court consists of hearing applications for leave to appeal. Moreover, the noble Lord has not distinguished between appeals against conviction and appeals against sentence. In the case of an appeal against a long sentence, there is obviously no particular reason for expedition. In the case of an appeal against conviction where there is a short sentence, there is obviously good reason for expedition. These factors are taken into account by the Court. Moreover, in the "Rolling Stones" case the court of trial had itself granted a certificate that there was a point of law involved. This made it unnecessary, of course, to obtain leave for appeal. Those cases are naturally taken sooner.

COMMONWEALTH IMMIGRATION: GRANTS FOR EDUCATION
11.26 a.m.
THE EARL OF ALBEMARLE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they are prepared to make, as equity would appear to require, special financial grants for the assistance of those towns upon whom national policy for the distribution of immigration "vouchers" has imposed an unwieldy concentration of immigrant families, so that adequate grounding in English may be provided for such families.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, grants for such purposes as English language teaching are available under
882
Section 11 of the Local Government Act 1966 to those local authorities which have substantial numbers of Commonwealth immigrants whose language or customs differ from those of the indigenous community.
THE EARL OF ALBEMARLE: My Lords, I do not understand that Answer. Perhaps I have not formulated my Question in a way which discloses what information I want to get. This question of integration, about which I am sure the Government are sincere, cannot be carried out unless steps are taken, and if ratepayers and the local education authorities cannot afford to take those steps the Government must help, because it is their policy. We have too many schools in which the proportion of over-sea children is beyond the one-third which was agreed with the teachers. Is the noble Lord aware that unless the Government help these authorities they will not be able to carry out their wish of integration? The teachers of both unions have said that the present position is fair neither to themselves nor to the children, but the Government merely make an answer such as I have just received, which does not fill the bill at all. I wish I could get more information from the noble Lord.
LORD STONHAM: My Lords, I thought the noble Earl's Question was perfectly clear, and I had hoped that my Answer was equally clear. May I try again? Since April 1 of this year, under the 1966 Act, local authorities have been able to get a grant of 50 per cent. of approved expenditure to cover staff specially employed in connection with any functions of local authorities, including education, child care and health. Some authorities have already submitted returns, and the first payments will shortly he made. This is precisely what the noble Earl has asked for. This is precisely what we are doing, and I hope that he will now be satisfied.
THE EARL OF ALBEMARLE: My Lords, I regret I am not satisfied. Is the noble Lord not aware that he is talking only about financial help in regard to teaching? Is he aware that you cannot teach children who do not know English in the same building as those who do know English and wish to get on? Therefore, is not help required for buildings?
LORD STONHAM: My Lords, I hoped I had made it clear that any approved expenditure for this purpose, where a local authority has a special problem of the kind about which the noble Earl is concerned, will qualify for 50 per cent. grant. I am perfectly aware, as are the local education authorities, of the difficulty he has mentioned of teaching immigrant and indigenous children in the same class, or perhaps in the same building. But the grant goes, not merely towards the cost of staff, but also towards training teachers and for special purposes of that kind. The grant is not only for children. There are classes, which also qualify for grant, for any adults who are willing to accept instruction in our language. I assure the noble Earl that this covers the whole field about which he has asked.
THE EARL OF ALBEMARLE: I thank the noble Lord.

FUTURE BUSINESS
11.30 a.m.
LORD SHACKLETON: My Lords, with permission, I should like to make a short business statement. After this statement on business, and before the two Motions in the name of my noble friend the Leader of the House, there will be two Statements, the first on Air Transport Policy, by my noble friend Lord Walston, and the second on the Culham Atomic Energy Authority Establishment, by myself.
Perhaps it would be for the convenience of the House if I informed your Lordships of the arrangements made for today and tomorrow. It is intended to sit until shortly after 1 p.m. to-day for further consideration of the Countryside (Scotland) Bill. If, as we anticipate, it is not possible to finish this morning, it is intended to complete the Committee stage of this Bill to-morrow evening. The House will sit again at 2 p.m. this afternoon for the Committee of the Medical Termination of Pregnancy Bill. It is intended to sit until a late hour and to adjourn for dinner at a convenient moment after 7 p.m.
To-morrow, Thursday, the House will meet at 11.15 a.m. After Questions, we will consider the Commons Messages on the Criminal Justice Bill, the Matrimonial
884
Homes Bill and the Road Traffic Regulations Bill in the morning. After a lunchtime adjournment, the House will meet again at 2 p.m. to consider the Commons Amendments to the Companies Bill. Thereafter, the Commons Message on the Water (Scotland) Bill will be considered and, as I have already said, the Committee stage of the Countryside (Scotland) Bill will be completed if it does not prove possible to complete it this morning.
My Lords, may I take this opportunity, in an irregular but I think satisfactory way, to wish my noble friend Lord Beswick, the new Government Chief Whip, the success I know he will achieve. He has come into his new office at a rather difficult time from a business point of view, but, none the less, I am sure that, with the usual way we manage things and his ability and skill, we shall contrive to get through our business.
VISCOUNT GOSCHEN: My Lords, as my noble friend Lord Carrington said yesterday, we on these Benches welcome the noble Lord, Lord Beswick, very much. We will naturally give him all the assistance that we possibly can.
On the business statement, we feel that the question of the Countryside (Scotland) Bill is slightly difficult. Owing to the fact that there are two Statements this morning, we shall not have much time, and I was wondering whether, if it looks a little later on that there might be a chance to finish it this morning, it would be possible to continue this morning's sitting until, say, a quarter past one or twenty past one, and then have the lunch adjournment slightly later. If we could finish it this morning, it would be of great assistance to some noble Lords who deal with the Scottish business.
LORD SHACKLETON: My Lords, the Government wish to be as accommodating as possible. I think the answer is to see how we get on. If we can possibly help it, I do not think we want to cut into the time of the Medical Termination of Pregnancy Bill. But I think the usual channels can watch progress, and we will continue to keep the House informed as to what adaptations, if any, are necessary. I am inclined to think that we might run

885
a few minutes after one o'clock if it serves any purpose; but let us see how we go.
THE DUKE OF ATHOLL: My Lords, may I ask why the arrangement made last Thursday has been altered, whereby we were going to go on through lunch—particularly as we had the Brighton Marina Bill pushed on us last Thursday, when we had originally understood that we were going to have the whole of Thursday for the Countryside (Scotland) Bill? Does the noble Lord not agree that, as some noble Lords have had to come down from Scotland, we might have been told in advance of these arrangements?
LORD SIIACKLETON: My Lords, I obviously sympathise with any Scottish Peer in these circumstances, but we do the best we can, and we have an extremely hard-working lot of Official Reporters who must have a few moments for sustenance. These matters have been very carefully considered. I am sorry the noble Duke was not aware of this, but I hope it will come out all right.
LORD BURTON: My Lords, on the Highlands and Islands Development (Scotland) Bill we sat far into the night, and we are quite prepared to do this again. I am very upset about this. I have come down all the way from Inverness for this Bill, and it is extremely inconvenient. We were allowed only 2½ hours last Thursday and were then put off for the Brighton Marina Bill. Now we are to be put off again, and it makes matters extremely difficult for us. It is a bit unfair that Scottish measures should be pushed into the background.
LORD SHACKLETON: My Lords, I should never dream of pushing a Scottish measure into the background. We just do our best to satisfy everyone; and the two sides of the House have been in constant touch. I realise that this is not a matter in which we shall always necessarily be able to satisfy Back-Benchers, with their particular problems. I am not unhopeful that we shall in fact be able to satisfy noble Lords from Scotland, and I can only say that we really are trying to do our best. I appreciate the noble Lord's feelings, and, if necessary, we can have some further discussion on it.
VISCOUNT MASSEREENE AND FERRARD: My Lords, has the noble Lord any idea what time on Thursday evening the Countryside (Scotland) Bill will come on?
LORD SHACKLETON: I am afraid I cannot give a definite undertaking on that. I am sorry, but I think we shall just have to see what progress we can make. I hope your Lordships, who have been extremely co-operative in the difficult situation that confronts us, will appreciate that we have our troubles, too, and that we just do the best we can.
LORD BESWICK: My Lords, may I just say how much I appreciate the good will which has been extended to me on my appointment, and add that I shall do my utmost to deserve it.

THE AIR TRANSPORT INDUSTRY
11.38 a.m.
THE PARLIAMENTARY SECRETARY, BOARD OF TRADE (LORD WALSTON): My Lords, with your Lordships' permission I should like to repeat a Statement which my right honourable friend the President of the Board of Trade made earlier to-day in another place. The Statement is as follows:
"The Government have decided to institute a broadly based inquiry into the civil air transport industry.
"Since the Board of Trade assumed responsibility for the industry a year ago, I have been impressed both by the achievements of the industry and by the problems it faces. There is undoubtedly a feeling of uncertainty about the future of British civil aviation. This has found particular expression in criticism of the present licensing system, with its influence on the structure of the industry. Honourable Members on both sides of the House have shown concern and sought reform.
"Because our civil aviation industry is of great importance, both as an integral part of our system of transport and as an earner of foreign exchange, the Government are anxious that it should be as strong and competitive as possible. Before considering changes affecting the industry, the Government

887
have decided to obtain independent advice. There has been no independent inquiry since the war, and the time has come to take stock. I am, therefore, setting up a Committee with the following terms of reference:
'To inquire into the economic and financial situation and prospects of the British civil air transport industry, and into the methods of regulating competition and of licensing currently employed; and to propose with due attention to other forms of transport in this country what changes may be desirable to enable the industry to make its full contribution to the development of the economy and to the service and safety of the travelling public.'
"While the inquiry must be thorough, it is also important that it should be completed quickly. I hope it will be able to make at any rate a first report with recommendations in spring, 1968. I trust that the industry itself will respond to this opportunity by giving the Committee its full support and co-operation."
LORD DRUMALBYN: My Lords, I should like first to thank the noble Lord for having repeated that Statement and then to say how much we welcome it. I hope that this is an earnest of the effects of the "new broom" in the transfer of functions to the Board of Trade. May I ask about the scope of the Inquiry? Am I right in thinking that it will cover all forms of air transport, nationalised industries and the others? Secondly, will it cover freight as well as passenger transport? May I also ask about the composition of the body that is to conduct the Inquiry? Have any decisions been made about this? As the time is short, obviously this matter has to be tackled quickly.
May I also ask about the evidence the Committee will take? In view of the nature of the industry, will they be enabled to take evidence not only here but abroad? So far as the development of air freight traffic is concerned—which I hope is included—will the Inquiry go into matters of facilities such as customs and others? There is one very important aspect that has to be looked at, the question of investment grants for aircraft. This is an urgent matter. Will it be possible, if necessary, to legislate before the Inquiry has concluded? Then, on the Air Transport Licensing Board,
888
could the noble Lord say whether the whole scope of air transport licensing will be fully covered by the Inquiry?
May I conclude by saying this? We have certainly as good an air transport industry in this country as any other in the world; but this is largely due to the quality of its personnel. May I express the hope that, whatever else happens, all the skill at present available will be maintained, and that nothing will result from the Inquiry which will interfere with that? We agree with the noble Lord that the object must be to ensure that the industry is a strong and expanding one.
LORD WALSTON: My Lords, the noble Lord has asked me a great many questions, all of them very pertinent. I will try to answer all of them. The noble Lord's first question was whether this Inquiry would cover all forms of air transport, both nationalised and others; the answer is, Yes. Second, whether it would cover freight; and again the answer is, Yes. The noble Lord asked about the composition of this Inquiry. That has not yet been decided; but I hope that an announcement will be made in the near future. Then he asked whether the Inquiry will take evidence overseas, as well as at home. It will be for the Chairman to decide where he wishes to take his evidence. Certainly there will be nothing in his terms of reference which will preclude him from taking evidence overseas. Will the Inquiry cover Customs facilities and matters of that sort? Again that is for the Chairman to decide; but as the scope of the Inquiry is wide, and covers freight in all its aspects, I imagine—although I cannot commit the Chairman or the Inquiry itself—that, naturally, they would wish to take into account these matters and also such matters as integration with other forms of transport, regional development and so on.
My Lords, I think the question of investment grants for aircraft may be outside the scope of the Inquiry because it falls more within the field of aircraft construction. This is an Inquiry into air transport industry. While not committing the Chairman by saying that he would not decide to inquire into this subject, I should expect that it would not be something to which he would devote too much time. That being so, there

889
would be no reason why any legislation which might be contemplated would have to be held up for the result of the Inquiry. The Air Transport Licensing Board and its activities will, of course, be covered in the Inquiry. I agree with what the noble Lord had to say about the quality of the personnel, and I am sure that the Inquiry itself will do a great deal to stimulate and encourage the people engaged in the whole of the air transport industry. I am certain that at the end of the Inquiry there will be no question of lack of confidence. I think it will be just the reverse and that there will be still more encouragement to people to give their services.
LORD NUGENT OF GUILDFORD: My Lords, is the noble Lord aware that in this fast-moving and fast-developing industry, the private enterprise section has a particularly valuable role to play—in its ability to move more rapidly than the nationalised corporations and often develop in a more flexible way and thereby to take advantage of opportunities which the national corporations could not? Can the noble Lord assure us that in this Inquiry the possibility of the continuing and more rapid development of the private enterprise section will be given full scope?
LORD WALSTON: My Lords, I can assure the noble Lord that the role of private enterprise in civil aviation will be fully investigated and taken into account.

CULHAM LABORATORY AND FUSION RESEARCH
11.47 a.m.
LORD SHACKLETON: My Lords, with permission I should like to repeat a Statement made by my right honourable friend the Minister of Technology in another place.
The Statement is as follows:
"Last year the United Kingdom Atomic Energy Authority appointed a Working Party to review their present effort on plasma physics and fusion research. After considering the views of the Working Party, the Authority have advised me that this effort should be reduced over the next five years by about 10 per cent. a year. I have now
890
endorsed their conclusion. Since the decision to start fission reseach, rapid progress has been made towards economic nuclear fission power. In particular, the fast breeder reactor programme shows real promise. Consideration of this progress in relation to the earliest period when fusion could conceivably contribute to the power programme, leads inevitably to the conclusion that plasma physics and fusion research should be substantially reduced. The present annual expenditure of £4 million on this work will be cut by nearly half.
"In so advanced a technology as this, circumstances can change rapidly. I have therefore agreed that the Atomic Energy Authority shall keep the situation under review and that in any event there should be a re-examination in five years' time.
"Fewer professional staff will be needed on this work. The Authority have told me that they will keep in close consultation with their staff and trade union sides in dealing with this. While I do not intend to authorise non-nuclear work for the Atomic Energy Authority solely in order to absorb surplus staff, whether at Culham or elsewhere, I shall continue to authorise such work where this is appropriate.
"In reaching the decision full account has been taken of the outstanding quality of the work being done, of the high international standing and the considerable scientific achievements of the Laboratory. The Atomic Energy Authority assure me that Britain will still maintain a leading position in this field of research. The work done at Culham has attracted international interest and respect. I am confident that it will continue to do so."
THE EARL OF BESSBOROUGH: My Lords, I am grateful to the noble Lord for repeating the Statement which on the whole we must accept although the cut—virtually 50 per cent, over five years—is pretty drastic. And this at a time when France, for example, is increasing its allocation for fusion research and is setting up a new laboratory at Grenoble, while the U.S.S.R. is doing the same at Novosibirsk. However, I welcome the point made in the Statement that the

891
fast breeder reactor programme shows real promise. I was glad to hear that the Government do not intend to authorise non-nuclear work for the A.E.A. solely in order to absorb the surplus staff. I should like to endorse the outstanding quality of the work being done.
I have only three questions. First, how many projects at Culham will have to be abandoned? Secondly, was this reduction referred to the Zuckerman Central Committee? I feel that this action should not be taken in isolation but should be considered as part of the total survey of scientific and technological resources which Sir Solly has been undertaking. Thirdly, I wonder whether in the long term the noble Lord would not agree that this work would not be better placed under the Science Research Council. I think that this view was supported in our debate on these matters.
LORD SHACKLETON: My Lords, I am grateful to the noble Earl. It was a difficult matter, as I know he will admit. There were indeed arguments that since there was no immediate prospect of getting a fusion reactor, the work should cease altogether. I think that what has been decided is a satisfactory compromise, bearing in mind (and this I think weighs with the noble Earl as with me) the great excellence of Culham. It will continue to play a leading part, and it is very much a question of the amount of effort one thinks right to allot to it. It could be argued, in view of the decline, the fact that earlier hopes were not entirely realised, that it was set up on too big a scale. I am quite confident that we shall not in any way lose the position that we have internationally, and this will preserve it.
The noble Earl asked three questions. First, how many projects? I cannot say; indeed, I am not sure whether they are establishable as separate projects. There are many parallel researches going on and some that might be called by-products, researches in super-conductivity and other matters which are related and have arisen out of this.
THE EARL OF BESSBOROUGH: My Lords, I wondered which of them was going to suffer the most.
LORD SHACKLETON: My Lords, I cannot really answer that question. This
892
is a "broad brush" decision and it will be a steady rundown. These decisions will have to be made.
Regarding the suggestions that the matter should have gone to Sir Solly Zuckerman's Committee, it so happened that there was a separate report. The Ministry of Technology have been looking at this for a long while. I think it is arguable that if that had not been under way, this is a matter which would have gone to the Central Committee. I do not dissent from the general principle, but I think that the Minister of Technology felt that he was in a position to make this decision. Again, regarding the argument about the Science Research Council, it is one of the factors that was weighed. I think there were quite powerful arguments for leaving it with the Atomic Energy Authority. These are matters of fine judgment, and my right honourable friend concluded that this was right. Nevertheless, I think that all the questions asked by the noble Earl were relevant.
LORD WADE: My Lords, is the noble Lord able to estimate the amount of expenditure which will have to be written off as a result of projects being abandoned?
LORD SHACKLETON: My Lords, I do not think that the noble Lord's question, though well meant, is quite relevant to science research. This is research which increasingly has been seen to be pure research, and I do not think that one can ever talk about "writing off" pure research. Sometimes it comes to an end, for one reason or another. There will be a declining effort, obviously, in the field of plasma physics and fusion research, particularly. Certain of the work may have led by itself to no specific result, but that is part of the general scientific process.

BUSINESS OF THE HOUSE
11.55 a.m.
LORD SHACKLETON: My Lords, on behalf of my noble friend the Lord Privy Seal I beg to move the Motion standing in his name on the Order Paper.
Moved, That Standing Orders No. 35 (Arrangement of the Order Paper) and

893
No. 41 (No two Stages of a Bill to be taken on one day) be suspended from the first sitting day after the Recess until the end of the Session.—(Lord Shackleton.)
On Question, Motion agreed to.

STANDING ORDERS OF THE HOUSE
THE LORD PRIVY SEAL (THE EARL OF LONGFORD): My Lords, in moving the Amendments to the Public Bill Standing Orders which are in my name on the Order Paper I am asking the House to give effect to recommendations made by the Procedure Committee in its Fifth Report and approved by the House on June 19. These suggested Amendments all arise from the agreement of the House to that Report. I beg to move.
Moved, That the following Amendments be made to the Standing Orders relating to Public Business.
In line 3 of Standing Order 37, after "but" insert "except for starred questions".
In Standing Order 35(5), leave out "if the convenience of the House so requires, be varied by Order of the House" and insert "be varied, if the convenience of the House so requires".
In Standing Order 21—
Leave out lines 1 to 7 of paragraph 3.
In line 2 on page 12, leave out "any session of a Parliament other than the first" and insert "every session".—(The Earl of Longford.)
On Question, Motion agreed to: the said Standing Orders amended accordingly.

COUNTRYSIDE (SCOTLAND) BILL
11.59 a.m.
Order of the Day for the House to be again in Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Shackleton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 24:
Acquisition by local planning authorities of land for public access
24.—(1) Where it appears to a local planning authority, as respects any land in their area
894
which is or which gives or forms part of access to open country,—
(a) that it is requisite that the public should have access to that open country for open-air recreation; and
the authority may acquire the land compulsorily.
THE EARL OF DUNDEE THE EARL OF DUNDEE moved, in subsection (1), after paragraph (a) to insert:
"(b) that it is impracticable to obtain such access by means of an access agreement or access order; and"
The noble Earl said: On the resumption of the Committee stage of the Bill, I should like to say that when my noble friend and I and some of us were asked how long the Committee stage would take, we replied that we could deal with it easily in one day if given a full day. On Thursday we were docked at one end by a rather lengthy Government Statement and at the other end by the discussion on the Brighton Marina Bill. We got only two and a half hours. Now our small ration of time this morning has been cut by fully half an hour by two very lengthy Government Statements. I hope that the Government will really try to do their best to meet the convenience of those noble Lords from Scotland who have to make their plans several days in advance in order to get here for this kind of business. I am sure that the noble Lord will do his best to meet us.
LORD SHACKLETON: May I reply to the noble Earl? Certainly we will consider anything. I can only repeat my sympathy. If there is a way round these difficulties, I will go into action with my noble friend the Chief Whip to see whether we can do something.
THE EARL OF DUNDEE: I thank the noble Lord very much. I hope that at least we may not be interrupted any more in the meantime by Government Statements.
The Amendment which I beg to move is to insert a new paragraph (b) in subsection (1) of Clause 24. It is similar to the Amendment accepted in another place in regard to Clause 21, which deals with paths. In the terms of that Amendment, which the other place accepted, compulsory powers can be put into

895
operation only if it appears to the local planning authority impracticable to create a path by means of a public path creation agreement. It seems to us that similarly we should have this provision in Clause 24, that compulsory powers may be put into operation only if it appears impracticable to obtain access by means of an access agreement. I think that this Amendment would be consistent with the next Amendment, No. 28, in the name of the noble Lord, Lord Hughes, and if both these Amendments were agred to, it would follow that subsection (2), which it is the purpose of Amendment No. 29 to leave out, would be unnecessary. I beg to move.
Amendment moved—
Page 22, line 18, at end insert the said paragraph.—(The Earl of Dundee.)
LORD HUGHES: My Lords, The noble Earl said that this Amendment runs with the one which I shall be moving next. The Government are prepared to accept the Amendment in principle. However, its drafting does not quite fit in, and if the noble Earl will agree to withdraw the Amendment, I will undertake to put down an Amendment at the next stage along these lines, in words which fit otherwise with the Bill.
THE EARL OF DUNDEE: I am grateful to the noble Lord, and I beg to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD HUGHES: In moving this Amendment, I would point out that with the Bill as drafted there is some doubt whether the local planning authority would have power to acquire land for access by agreement. The purpose of the Amendment is to remove that doubt, and I hope that the Committee will agree to accept it. I beg to move.
Amendment moved—
Page 22, line 22, after ("may") insert (",with the consent of the Secretary of State, acquire the land by agreement, whether by way of purchase, feu, lease or excambion, or")—(Lord Hughes.)
On Question, Amendment agreed to.
THE EARL OF DUNDEE THE EARL OF DUNDEE: I beg to move Amendment No. 9.
Amendment moved—
Page 22, line 23, leave out subsection (2).—(The Earl of Dundee.)
LORD HUGHES: I accept this Amendment.
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Acquisition by Secretary of State of land for public access]:
THE DUKE OF ATHOLLhad given notice to move to leave out Clause 25. The noble Duke said: With a view to the time factor, I will discuss this clause on Report stage.
Clause 25 agreed to.
Clause 26 [Maps of land subject to public access]:
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved, in subsection (2) after "map" where that word occurs a second time, to insert
"and lists specifying any restrictions applying to the land or any part thereof".
The noble Duke said: I think it would be useful if the local authority, as well as displaying a map, should also, if practicable, display lists specifying any restrictions applying to the land to which the map refers. This will enable people to find out more easily exactly which parts are subject to access agreements and what restrictions there are on these parts, if any. I beg to move.
Amendment moved—
Page 24, line 23, after ("map") insert the said words.—(The Duke of Atholl.)
LORD HUGHES: I think this Amendment stands with Amendments Nos. 31, 32 and 33. I am prepared to accept the principle of these Amendments. I do not think there is any doubt that the subsection can and ought to be improved, but I should need a little more time to consider how best this could be done. If the noble Duke will accept my assurance that we accept the principle of the Amendment, I would ask him not to press this or the three succeeding Amendments.
LORD DRUMALBYN: The noble Lord, Lord Hughes, has referred to Amendments No. 32 and 33, as well. May I ask him whether he will say what his attitude is on those Amendments? The reason why I put those Amendments down was because it seemed to me that such maps will certainly be of great

897
use. They are available now, in certain circumstances, and where they are available they are greatly used. They have an additional advantage in that they tend to canalise people into coming in by the proper means of access. If you put a map there, people use the proper means of access and do not approach by other means. There are great advantages in this. I know of no case where it would be impossible to provide a map of the appropriate means of access, and it seems to me to be not unreasonable to suggest that this should be mandatory, and also to give the local planning authority the opportunity to place maps in other places—that is to say, to arrange for them to be put up in hotels and other places where people would use them.
LORD HUGHES: With a view to facilitating progress, I was speaking to the noble Duke earlier, and I am sorry that the noble Lord, Lord Drumalbyn, did not have the benefit of that discussion. I should like to say briefly, in answer to his question, that we accept that maps and restrictions ought, if it is possible so to provide without making too onerous a requirement on local planning authorities, both to be available for public inspection and to be displayed at the main access points to access land. The difficulty is that in so many cases the access to the kind of land about which we are talking can, with little effort and no harm to anyone, be made from anywhere on those boundaries. I will, however, see what can be done about providing a suitable form of words on the Report stage, and it is on this understanding that I invite both noble Lords not to press these Amendments at this stage.
THE DUKE OF ATHOLL: I thank the noble Lord for accepting these Amendments in principle, and beg leave to withdraw Amendment No. 30.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Clause 27 [Provisions as to danger areas]:
On Question, Whether Clause 27 shall stand part of the Bill?
LORD DRUMALBYN: I should like to ask a question on this clause. This
898
is an important clause, and it is a little difficult to see for what purposes it is going to be used. We have already dealt with the clause dealing with fire risk. It is not quite clear what dangers the Government have in mind here. Are they, for example, to do with military training areas, practice firing areas, and so on? Are they to do with stalking risks? This seems to be a wide clause, and as this is a Committee stage, I think a little explanation on it would be helpful.
LORD HUGHES: I am afraid that in attempting to make as much speed as possible on the Amendments I have come across without my notes on the clauses, and without them I could not talk very intelligently on Clause 27. As the noble Lord is aware, I shall be making a statement on the Schedule in relation to the general position of access, and if it suits his convenience, I will have tacked on to that a statement about the effect of this clause. It will give me an opportunity, perhaps at some time in the early afternoon, of having a look at it.
LORD DRUMALBYN: Despite the fact that the missing documents now appear to have arrived. I am willing to accept the noble Lord's offer.
Clause 27 agreed to.
Clause 28:
Boundary notices
28. A local planning authority shall have power to erect and maintain notices indicating the boundaries of land comprised in an access agreement or order and of excepted land.
12.8 p.m.
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved to leave out "have power to". The noble Duke said: This clause gives the local planning authorities power to erect boundary notices at the edge of land comprised in access agreements or access orders, and also boundary notices to show where the excepted land starts. As one of the main difficulties that I visualise under the Bill is communication between the local planning authority and the public about what parts of the country are subject to access agreements, and exactly what limitations they have on them, this clause and the second part of Clause 26 have quite a lot in common.
I should have liked it to be mandatory upon the local planning authorities to erect boundary notices showing the edge of the land to which access agreements apply. I realise that it will be impossible to erect boundary notices where the public can go on to or off the land, but I should have thought such notices were well worth while at any place where there is a footpath, or something like that, on to or off the land in question. I have therefore suggested that the words "have power to" should be deleted from the clause, which would then read:
"A local planning authority shall erect and maintain notices indicating the boundaries of land …"
The noble Lord will probably say that this would be too difficult and would mean that they would have to erect them everywhere, which would be untidy and ugly. I entirely agree with him on this point. Perhaps I ought to have added, "where practicable". Meantime, I beg to move the Amendment as it stands.
Amendment moved—
Page 25, line 32, leave out ("have power to")—(The Duke of Atholl.)
LORD HUGHES: This Amendment was looked at in another place. In fact, I think that a quite disproportionate amount of time was spent in looking at it in another place, and I do not wish to say much about it here, because we do not have time to repeat what they said elsewhere. The main difference between us seems to be in the way of going about achieving the same end; namely, the erection of sufficient notices at suitable places. The circumstances of each case will determine how many notices will be required and where they will best be situated. We cannot legislate for this—the clause as it stands does not pretend to do this—and the letter of the proposed Amendment could be met, for instance, by the erection of two notices anywhere.
The only reasonable way to go about this in practice is to look at each individual case. In an agreement an owner or occupier can arrange for suitable numbers and placings of notices. In the case of an order, the local planning authority will set out their proposals and the Secretary of State can vary the order or impose conditions in it, if he
900
thinks these proposals are inadequate. The clause gives them the power, and the Government think that any authority prepared to go to the trouble and expense of making an agreement or an order will surely be willing to mark its boundaries at appropriate places. In practice, therefore, the Amendment is unlikely to achieve anything more than the clause as drafted, and I would ask the noble Duke not to press it. In these matters we are seeking to work on the basis that local authorities are responsible bodies and in the majority of cases can be trusted to exercise their powers as well as fulfil their duties in a reasonable way, and I see no reason to believe that this case would be an exception.
THE DUKE OF ATHOLL: I have listened to the noble Lord with great interest, and for the moment I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
Clause 29 [Power of local planning authority to contribute to work carried out by other persons]:
THE DUKE OF ATHOLL: Clause 29 gives local planning authorities power to contribute to the erection of notices about danger areas under Clause 27(4). I am suggesting that they should also have power to contribute to notices erected under Clause 26(2), showing where the public may enter land to which access agreements or orders apply. I beg to move.
Amendment moved—
Page 25, line 42, at end insert ("or section 26(2) above ").—(The Duke of Atholl.)
LORD HUGHES: I accept the noble Duke's Amendment.
On Question, Amendment agreed to. Clause 29, as amended, agreed to.
Clause 30 [Creation of public paths by agreement]:
BARONESS ELLIOT OF HARWOOD: Clause 30 deals with the creation of public paths by agreement, and I want to ask the noble Lord whether the Bill in its present form provides that rights way established in Common Law will be covered by Part III of the Bill. The

901
purpose of the Amendment is to make clear that existing rights of way at the date of the commencement of the Bill are also covered by these provisions. This is a matter which has been discussed in another place, but it is not clear whether Clauses 34 to 36 will apply to public rights of way, whether created before or after the commencement of the Bill. I beg to move.
Amendment moved—
Page 26, line 15, at end insert ("and, for the purposes of sections 34, 35 and 36 of this Act, includes any such way existing at the commencement of this Act").—(Baroness Elliot of Harwood.)
LORD HUGHES: My Lords, may I refer the noble Baroness to Section 38(1) of the Bill which reads:
"Sections 34 to 36 above shall apply in relation to all public rights of way, whether created before or after the commencement of this Act."
This completely meets the point of the noble Baroness's Amendment.
BARONESS ELLIOT OF HARWOOD: I am delighted to hear that and have great pleasure in withdrawing the Amendment.
Amendment, by leave, withdrawn.
THE DUKE OF ATHOLL: This is an Amendment on rather the same lines as the last Amendment, but with a slightly different objective. It is to clarify the point whether or not Clauses 54, 55 and 64, dealing with bylaws and wardens, apply to rights of way already existing. I think that it is essential that they should, because presumably existing rights of way will go through land which will be subject to access agreements, and it would seem strange if wardens did not have power on these rights of way. I feel that as a result of this Bill existing rights of way will get greater use, that the litter problem will become greater, and that it might be awkward if by-laws cannot be applied to them. Therefore I hope that the noble Lord will be able to say that existing rights of way are subject to the clauses on by-laws and wardens. I beg to move.
Amendment moved—
Page 26, line 15, at end insert ("and, for the purposes of sections 54, 55 and 64 of this Act, includes any such way existing at the commencement of this Act")—(The Duke of Atholl)
LORD HUGHES: Throughout the preparation of this legislation the Government have been anxious not to weaken or in any way prejudice the current provisions governing rights of way and the manner in which the public have traditionally been able to enjoy them. I therefore feel very reluctant to accept the effect of this Amendment, which would enable by-laws to be made and wardens to be appointed in relation to existing rights of way when these have functioned for many years without such provisions, and especially when we do not in any case envisage such controls being widely needed on public paths as distinct from areas of access land. If circumstances should arise where it is felt that some form of by-law or warden control is desirable over an existing right of way—and this would probably in any case be where the way leads to an area of access land—then it would seem appropriate that the local planning authority concerned should transform the right of way into a public path, by agreement, I would hope, and they would then be in a position to promote the by-laws required. In the circumstances, therefore, I hope that the noble Duke will not seek to press his Amendment, which would confer a wide power over existing rights of way to deal with what, so far as I am aware, is probably only a very restricted problem.
THE DUKE OF ATHOLL: I thank the noble Duke for his reply. If we were to make an existing right of way into a public path, with whom would we get agreement? Probably we would get agreement with the owner and occupier concerned, but I should have thought that the Rights of Way Society and suchlike organisations may feel that they have a part to play in this before existing rights of way were converted into public paths, with all that goes with that conversion. I should have thought that it would have been much easier to make it possible for these clauses of the Bill to be applied to existing rights of way. I fully realise that at the moment the noble Lord cannot go any further, but perhaps he might consider this point before Report stage. If not, I feel that I would have to raise the matter again. If the noble Lord has nothing further to say, I beg leave to withdraw this Amendment, but warning

903
him that I shall come back to it at the next stage.
Amendment, by leave, withdrawn.
Clause 30 agreed to.
Clause 31 [Compulsory powers for creation of public paths]:
On Question, Whether Clause 31 shall stand part of the Bill?
12.20 p.m.
LORD DRUMALBYN: May I ask two questions on this clause? There is no Amendment down, similar to Amendment No. 44, but should I be right in assuming that it is the intention, at any rate, of the Government that local planning authorities should not make orders unless they had attempted and failed to make access agreements? Secondly—and this is largely on the same point—should I be right in assuming that in practice they would invariably consult the owners and occupiers of the land before making an order of this kind? I think that this matter is covered by Schedule 3.
LORD HUGHES: The answer to both the queries put by the noble Lord is, Yes. I would direct his attention to lines 28 and 29.
Clause 31 agreed to.
Clauses 32 to 36 agreed to.
Clause 37 [Compensation for creation, diversion and closure of public paths]:
THE DUKE OF ATHOLL: This Amendment is a purely probing Amendment. I should like to know whether people who are caused disturbance as a result of a public path creation order, or public path diversion order, but who are not actually physically affected by it, have a claim for compensation. If a footpath were diverted, and instead of going behind a hill, from which it could not be seen from a house, went in front of the house, and people threw bottles and litter into the garden, would the occupiers of the house who were thereby caused annoyance have any claim for compensation? I beg to move.
Amendment moved—
Page 31, line 39, leave out subsection (4).—(The Duke of Atholl.)
LORD HUGHES: In this clause, dealing with compensation, we must limit
904
the right to compensation to those directly affected by the creation, diversion or closure of public paths. It is entirely in accordance with established principles to limit compensation to persons with an interest in the land over which the path runs or in land in the same ownership. At the same time, we wish to preserve existing rights of owners of adjoining land in those cases where they have a legal interest in the land over which the path runs. If, for example, an owner enjoyed the benefit of a real burden or other restriction against the creation of such a path by voluntary agreement, and would have been able to take legal action to prevent such an agreement, subsection (4) would preserve his position and entitle him to consideration for compensation. This, I think, is quite fair.
THE DUKE OF ATHOLL: I do not think the noble Lord has quite answered the point. If a footpath is diverted, and the path is much nearer to someone's garden, and he has bottles and litter thrown into his garden—and the fire damage, too, is obviously increased—will he be able to get any compensation in such a case? I think it is a point of some importance.
LORD HUGHES: I think that if the land on which the diverted path exists is in the same ownership as the garden is, then the point will be covered; but if it is not in the same ownership, then of course it will not be covered.
THE DUKE OF ATHOLL: Would the noble Lord consider covering it? I fully realise that it will not apply in a very large number of cases. But it seems very unfair that if you have a garden which has not had a path near it for many years, if someone suddenly decides to divert an existing right of way, under this Bill, so that a path goes past your garden, with the result that you suffer this extra disturbance, there is no way of getting any compensation for it.
LORD HUGHES: If the likelihood of such a nuisance were obvious, I should think that this would probably be a very sound reason for not having the diversion. It certainly would not take place by agreement unless the adjoining owners were on tolerably friendly terms with

905
each other; it would not take place if an owner felt that bottles were likely to be pitched into his garden by the owner of adjoining land. We do not think that that is the usual situation that exists between neighbours, particularly in this sort of area. But I will look at the matter, although I must point out to the noble Duke that it is very difficult to breach a principle so that compensation may become payable to somebody who does not have a direct interest in the land which is affected.
VISCOUNT MASSEREENE AND FERRARD: May I point out that when you have main roads going through your land, as I have, you frequently get a lot of bottles and other litter on land. But, so far as I know, it is never possible to get compensation. I should certainly like to back up my noble friend the Duke of Atholl. I think it would be an excellent idea if one could get compensation; but how one could get it, I do not know.
LORD HUGHES: The noble Viscount speaks of a road going right through his land. The answer which I have given makes it perfectly clear that in that particular case compensation would be available against likely loss. But the point the noble Duke is raising is where a path is diverted, not on to someone's land, but on to land adjoining it, in such a way as to interfere with his proper enjoyment of the use of his own land.
LORD SALTOUN: May I press the noble Lord to examine this matter with great care? I have very long experience of life in the country (if I take into consideration my father and his friends, as well as my own life, it comes to nearly a century of it), and I know of a good many cases where adjoining owners are not on the best possible terms. It is bad legislation to have a law so that one man, by taking advantage of the law and his position, can inflict an injury on another. I say that to answer what the noble Lord, Lord Hughes, said: that most adjoining owners are on the best possible terms. I do not think that is necessarily the case, and I submit that legislation which assumes it is must be
906
bad legislation. One ought to take all sorts of factors into consideration.
LORD HUGHES: I think the noble Lord is overlooking the fact, which I pointed out, that this diversion would be the subject of either an agreement or an order. And surely one would expect that the owner of a garden who thought he was going to be adversely affected, because of the fact he was on bad terms with the man who might be making the agreement, or accepting the order, would, in these circumstances, make his point of view well known. I did not say that everybody in Scotland was on good terms with his neighbour. What I said was that the majority of them were.
THE DUKE OF ATHOLL: On the assurance that the noble Lord will look at this point, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
Clause 38 [Supplementary provisions as to creation, closure and diversion of public paths]:
LORD HUGHES: If I might speak to Amendments 39 and 40, I would say that these are linked drafting Amendments. The three extra prepositions are needed to make the wording sufficiently comprehensive to cover all the possibilities. May I take this opportunity of informing the Committee that my noble friend Lord Shackleton has just told me that it will be possible to sit until a quarter to two, if we can make a special effort to get through the whole of our proceedings on this Bill by that time. I beg to move.
Amendment moved—
Page 32, line 41, leave out from beginning to ("which") and insert ("under, in, upon, over, along or across").—(Lord Hughes.)
On Question, Amendment agreed to.
LORD HUGHES LORD HUGHES: I beg to move Amendment No. 40.
Amendment moved—
Page 33, line 12, leave out from ("there") to ("the") and insert ("was under, in, upon, over, along or across").—(Lord Hughes.)
On Question, Amendment agreed to.
Clause 38, as amended, agreed to.
Clause 39 [General provisions as to long-distance routes]:
12.30 p.m.
THE DUKE OF ATHOLL: This is the clause which sets up the long-distance routes, and it is anticipated that these routes will be used not only by people on foot but also by people on horseback and on bicycles. Therefore the only practical means of access and egress from one enclosure to another will be gates, and I want to put in an Amendment that these gates should be self-shutting gates. It is obvious why it would be better if they were self-shutting gates: people would then not be able to leave them open, which in that part of the country would cause a lot of difficulty and trouble. I beg to move.
Amendment moved—
Page 33, line 39, after ("paths") insert ("including the provision of self-shutting gates").—(The Duke of Atholl.)
LORD HUGHES: These three Amendments, Numbered 41, 42 and 43, in the name of the noble Duke, have drawn my attention to the possibly too restricted range of matters on which the Commission may report on long-distance routes. However, I should like to be sure that we should not fall into the danger of appearing to make the list exhaustive—and therefore inevitably restrictive, if by mischance we left something out—by adding these further items. For that reason I should prefer not to commit myself today, but to undertake to look further at this clause, with a view to amending it at Report stage and perhaps to add a generalisation like that in the opening words of Clause 54(2). If we did that in might in fact avoid some consequential Amendments in Clause 34(5).
However, I must say that I am not attracted by the proposal in regard to self-shutting gates. This is really a matter of detail for a particular case, and the Commission's Report should cover the proposals in broader principle. I have no real objection to adding a reference to picnic places, although I wonder whether they are really appropriae to long-distance routes. After all, the Scottish hills are full of natural picnic places, and one of the joys of the long-distance route is the chance it gives to get away from over-organised welfare
908
provisions. The noble Lord, Lord Balerno, had a wise word of warning about too much paternalism in his Second Reading speech.
The third Amendment is not really needed because, strangely enough, the Scots Parliament of 1424 has already attended to this point, and it might be of interest if I read it. It reads as follows:

CAP. 25
[1424, cap. 24]
Of hostilaris in burowis townis and thruchfaris
Item It is ordanyt that in all burowis townyss of the realme and thruchtfaris quhar common passagis ar that thar be ordanyt hostilaris and resetteris haifande stabillis and chawmeris to ridaris and gangaris And at men fynde with thame brede and aile and all vthir fuyde alsueill to horse as men for resonable price eftir as the chapis of the cuntre standis.
[THE INNKEEPERS ACT 1424]
I am informed that the last words might reasonably be interpreted in these modern times as
"according to the prices and incomes policy of the day"!
THE DUKE OF ATHOLL: I thank the noble Lord for saying that he will consider this point. All I wanted to do was to draw the attention of the Government to the desirability of having self-shutting gates. Possibly it would be inappropriate to write it in here, but perhaps the noble Lord will be prepared at the next stage to give an assurance that in nearly all cases self-shutting gates will be used on these long-distance routes, because I think it is a point of some importance.
I fully realise that a hundred years ago, when providing refreshments one provided them for horses as well as for humans, but I think this practice has rather dropped out in modern times. I just wanted to draw attention to the fact that it will be necessary to have refreshment for the horses as well as for the humans, in addition to accommodation for the horses. One of the difficulties of pony trekking at the moment is that unless you trek from one centre and go out in a different direction each day you can never find places to stable your ponies overnight. When these long-distance routes were set up I was hopeful that this difficulty would be overcome and that people would be able to go for genuine pony treks over, perhaps, 50 or 100 miles without staying two nights

909
at the same place. However, with the noble Lord's assurance I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
BARONESS ELLIOT OF HARWOOD: A discussion took place in another place on this Amendment, and I believe the Minister undertook to look further into the question of prior consultation with owners and occupiers. This Amendment is the same as that moved in the Standing Committee of the House of Commons. It would seem desirable in the exercise of their general functions under this part of the Bill that there should be express provision for consultation between the Commission and the owners and occupiers of the land through which the routes are passing, particularly as, if the various types of accommodation for the benefit of long-distance travellers were to come into effect, it would be necessary to have the permission of the owners and occupiers for any additional stabling that might be needed on the route. I beg to move.
Amendment moved—
Page 34, line 5, after ("with") insert—("the owners and occupiers of the land through which the route passes and with ").—(Baroness Elliot of Harwood.)
LORD DRUMALBYN: I should like to support my noble friend, and simply observe that I think her Amendment would require a consequential Amendment in line 22, so that representations would also be capable of being made by the owners and occupiers, and included in the report. I am sure this would be a wise thing to do. What I understand my noble friend is asking for is consultation before the order is made. Under the Schedule it would be possible after the order is made, but consultations beforehand might be a good deal better.
LORD HUGHES: As the noble Baroness has stated, this Amendment was considered in another place, and I should like to draw the attention of the Committee to what my honourable friend the Minister of State said in the Scottish Standing Committee:
"I accept that consultation with landowners at this stage should take place if particular difficulties appear to exist. Under Clauses 30 and 31, when the time comes to put the pro-
910
posals into practice, the owners and occupiers will be consulted. That is right and proper. All that we are arguing about now is a functional power and whether in all the circumstances, even though there are no difficulties or there appear to be no difficulties, we should have to do this. It is simply on the ground of doing unnecessary work and having to carry out unnecessary consultations that we object to these two Amendments."
That was what was then said: that we must hold the balance between getting on with the job and consulting many people who might in the event not be concerned.
We consider that the right stage for consultation with individual owners and occupiers is at the implementation stage. Consultation is implicit in the making of a public path agreement, and the Secretary of State would want to be satisfied that a serious attempt had been made to make an agreement before he would approve an order. Therefore I regret that I do not feel able to accept the Amendment. But I repeat the Government's hope that there will be the fullest practicable consultation with owners and occupiers at every stage where this would be helpful, and the confidence of the Government that the Commission and local planning authorities will be fully alive to the sensibility of proceeding in this way without the necessity for too onerous statutory obligations.
BARONESS ELLIOT OF HARWOOD: I was interested in what the noble Lord said and I will not press the Amendment. But we are in danger of shutting the stable door after the horse has escaped. The point made by my noble friend Lord Drumalbyn, and which I want to stress, is that it is before these things are actually coming into effect that we want to get people's good will. If you do not have their good will and you start off by putting the scheme almost into effect, then you get the difficulties that arise because people are angry as they have not had an opportunity to go along with the plan. If the noble Lord feels that this point is already covered, I am quite happy. But I am anxious for the Bill to be a success and keen about its provisions with regard to long distance trekking and so on, and it will be a great pity if it does not succeed simply because the consultations come after, rather than before the order.
LORD HUGHES: I do not think there is any likelihood of our locking the stable door only after the horse has escaped. I think we have doors which can be kept reasonably shut and which the horse will not be able to open of its own accord.
THE DUKE OF ATHOLL: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Clause 40 [Approval of proposals relating to a long-distance route]:
THE DUKE OF ATHOLLhad given Notice of his intention to move, in subsection (2), after "authority", to insert "owner and occupier". The noble Duke said: The point of this Amendment is so closely connected with the point discussed under the last Amendment that it is hardly worth moving at the moment.
Clause 40 agreed to.
Clauses 41 and 42 agreed to.
Clause 43 [Ploughing of public paths]:
12.42 p.m.
THE DUKE OF ATHOLL: This Amendment is designed to save a person who ploughs up a public right of way which is in the middle of his field from having to notify the fact to the authority responsible if the right of way is not used frequently. For this purpose, I have said that if the right of way has not been used during the course of the previous year the occupier need not notify the fact that he has ploughed it up. I think this is a reasonable proposition. It seems to me that it would just create a lot of unnecessary paper work and annoyance for both the occupier and the local planning authority if the occupier had to notify the local planning authority in those cases where the right of way is hardly ever used. I beg to move.
Amendment moved—
Page 36, line 37, after ("way") insert ("which has been used during the course of the previous year").—(The Duke of Atholl.)
LORD HUGHES: The effect of the Amendment which the noble Duke has proposed is that if a right of way has not been used in the previous year it shall in fact be treated as if it were not a right of way. The current period
912
over which a right of way must be disused before it ceases to be a right of way is 40 years. It is an exceedingly radical Amendment to reduce 40 years to one year, and I am quite certain that many people much less reasonable than the noble Duke could not expect me to accept an Amendment of this kind. I am quite certain he will not press it.
BARONESS ELLIOT OF HARWOOD: If it is not acceptable—and I agree that one year is a very short time—is there any point at which somebody who wishes to cultivate land on a rotational basis will ever be able to do so if a right of way passes through the field or in some way over his land? Is this land going to be sterilised for ever and never cultivated for 40 years?
LORD HUGHES: The Bill as it stands does nothing to alter the existing law in relation to rights of way, and something with which people have had to live over all this time will continue to be in that fashion. I mentioned when we were talking about rights of way previously that it is perhaps possible, with this new procedure of having access agreements, that a right of way, on consultation with those concerned, may be changed through an access agreement, which would in fact serve the same purpose. As the noble Duke indicated, this would probably require consultation with, among others, the Rights of Way Society. I am quite certain that it would be improper to attempt anything of this kind without consulting them. I have no doubt that if they could be satisfied that through an access agreement they could achieve exactly the same purpose as they previously had with the right of way, agreement might be possible. If they could not be satisfied, then I should think it would be impossible to move on this matter unless Parliament deliberately decided to alter the law in relation to rights of way, and we could not do this as a side issue in a Bill of this kind.
THE DUKE OF ATHOLL: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF DUNDONALD THE EARL OF DUNDONALD moved, in subsection (3) to leave out "as soon as may be after the ploughing is completed" and insert "after final cropping". The

913
noble Earl said: I raised this matter at some length on Second Reading. What do the words "as soon as may be" mean? The Minister in his reply was good enough to agree that they mean very little. Perhaps I may read what he said, referring to my remarks:
"I cannot disagree with him when he implies that this phrase has no precise legal meaning in terms of time."—[OFFICIAL REPORT, col. 1202, 12/7/67.]
The noble Lord went on to say that the courts would take certain views about the matter. But I feel we do not want to think in terms of court cases. What we want to do is to make the position quite clear to the owner or occupier. I have tried various forms of words, and the wording I have set down is the best I can put forward which would allow the rotation of the field concerned. In fact the right of way or path could be put back after normal rotation. I hope the Minister will be able to agree to this Amendment, or at least to look at the matter further. I beg to move.
Amendment moved—
Page 36, line 43, leave out ("as soon as may be after the ploughing is completed") and insert ("after final cropping").—(The Earl of Dundonald.)
VISCOUNT MASSEREENE AND FERRARD: I should like to support my noble friend. Personally I should prefer, instead of the words, "after final cropping", to see the words, "when the land returns to permanent grass". I was wondering whether, to get over this difficulty while the land is under crop, the right of way could perhaps go round the headlands of the field. That seems quite feasible. I hope that the Minister can give some satisfaction on this point, because obviously it is quite impracticable, when you plough a field and sow a crop, to have people walking across it.
LORD HUGHES: I have no desire to get away from what I said on Second Reading, because it is clear that we cannot attach a precise legal meaning to the words "as soon as may be". I certainly did not wish to create the impression that we expected that there would be a multiplicity of court actions over this sort of thing. We believe that court action would be an exceedingly rare proceeding, as it has been on this side of
914
the Border. I gave an example of how wide an interpretation the court placed on a similarly vague phrase in other legislation.
One of the purposes of the clause as drafted is to save the farmer what might, in certain circumstances, be a considerable amount of inconvenience. I think that to use wording which has been chosen after a great deal of thought is as far as we can go, and the Amendment which the noble Earl has proposed, although at first glance it appears to be more precise in terms of time, would mean that in certain circumstances the path could not be available for a very considerable time.
The noble Viscount, Lord Massereene and Ferrard, pointed out one possibility in that connection. I do not know in how many ways this could be extended. For instance, it is not inconceivable that a man might say, "My plans for cropping extend over the next ten years and my final cropping is not until the tenth year. I am going to keep the land closed, and I shall have the right, because of this, to keep it closed all that time." Obviously, this would defeat the whole purpose of the clause, which is to permit the land to be ploughed up for the shortest reasonable possible time. There have been many close consultations with both the Scottish National Farmers' Union and the Scottish Landowners' Federation, and I can say that there has not at any time been any suggestion by either of these organisations that the wording as drafted would impose an undue burden on anybody. In fact, we think that the loose nature of the wording is much more likely to apply in favour of the farmer or landowner rather than against him. I hope, therefore, that the noble Earl will feel it possible to withdraw his Amendment.
THE EARL OF DUNDONALD: I am most grateful to the Minister for his full reply, and in the light of what he has said I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 43 shall stand part of the Bill?
THE DUKE OF ATHOLL: May I ask the noble Lord one question on Clause 43? There seems to be no provision made for an alternative path while the footpath is ploughed up. I feel that it ought to be written into the Bill somewhere that when a footpath is ploughed up the farmer must leave a headland round that particular field in such a way that members of the public who wish to use the path will be able to get round the field without either going across the ploughing or having to go along what might well be a barbed wire fence or thorny hedge. I think it should be written into this clause that where a farmer takes advantage of the clause, and in the interests of good husbandry ploughs up a footpath going across the field, he should leave a sufficient headland on one side or the other to enable people to get round to the point where the particular path normally begins and ends.
VISCOUNT MASSEREENE AND FERRARD: To help the Minister may I say that I have done this in England in consultation with the local authority? Where the public right of way has been ploughed up, I have left a path round the headland.
LORD HUGHES: I am not certain whether there are difficulties in the way of doing this. I should certainly like to see something of this kind in the Bill, and I will undertake to look at this point before the next stage.
Clause 43 agreed to.
Clause 44 [Pasturing of bulls]:
12.55 p.m.
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved, in subsection (1)(b), to leave out "cows or heifers "and insert" other cattle". The noble Duke said: I should like to congratulate the noble Lord on the revised version of Clause 44. It is a big improvement on the original version. But it seems to me that there is one small snag with subsection (1)(b), in that sometimes, because a farmer does not want his cows to calve too late in the following year, he does not wish to run the bull with the cows and heifers after, say, April or May of a particular year, and it may be more convenient to him to run his bull with the bullocks. I should have thought, therefore, that we might use the words
916
"other cattle" rather than "cows or heifers" in Clause 44. I think I can assure the noble Lord that normally beef bulls are extremely docile—much more docile than the cows concerned. So long as they have some sort of company, I think they will be perfectly happy. I beg to move.
Amendment moved—
Page 37, line 32, leave out ("cows or heifers") and insert other cattle").—(The Duke of Atholl.)
LORD HUGHES: As the noble Duke is well aware, the clause is in this form after considerable discussion with all the interests concerned, and I am informed that there is no strong agricultural interest that requires an Amendment along the lines which he suggests. I do not pretend that the clause has in it everything which the Scottish N.F.U. would like; in fact, they might have been happier without any clause at all. But they are reasonably content, having regard to the purpose of the clause—which is to protect the public without imposing undue burdens upon the farmer—that this is as far as they can reasonably expect the clause to go. In these circumstances, I hope that the noble Duke will accept that it would be unreasonable for us to go beyond the terms of this clause. I would remind him also, since it may not have been in his mind, that the Sexual Offences Bill was passed last week, but I do not see that we should extend this sort of activity, under the Countryside Bill, to bulls.
THE DUKE OF ATHOLL: Having heard what the noble Lord has said I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved, in subsection (2), after "who" to insert "deliberately". The noble Duke said: This is a probing Amendment to find out exactly where the line will be drawn, in regard to negligence, between people who are simply negligent and the bull gets into a field through which a public right of way passes, and people who are sufficiently unlucky that, through no fault of their own, a bull gets into such a field. I can visualise a case where someone leaves open a gate, or possibly where a tree blows down and falls over a fence, thereby enabling the bull to walk through

917
into the next field. I should be happier if the word "deliberately" were inserted in subsection (2) of this clause, but I suspect that in legal terms it may be automatically accepted and that the noble Lord may tell me that it is unnecessary. I beg to move.
Amendment moved—
Page 37, line 34, after ("who") insert ("deliberately").—(The Duke of Atholl.)
BARONESS ELLIOT OF HARWOOD: May I say a word in support of this Amendment? One often finds that one's neighbour's bull gets through on to one's land, which one does not want in the least, because of all the nuisance of getting it out again. It is possible that a fence is not quite strong enough, or that some condition prevails of which one is not aware; and it is most inconvenient and it would be unfortunate if one were suddenly fined £50, not because one had been negligent but because of a series of accidents or because of the negligence of one's neighbour.
LORD HUGHES: I think I can satisfy both the noble Duke and the noble Baroness that what they are worried about is adequately covered by the Bill as it stands. The fact is that there are two aspects of a penal offence. First, it is necessary to catch the person who deliberately sets out to ignore the statutory requirement. Secondly, the question arises whether the person who has offended, not by intent but by gross negligence, should also be liable. In some cases it is true that he should not, and the usual formula is that a person is liable if he has for example, knowingly misrepresented certain facts. Here, however, I am sure that the public interest requires that little extra care to ensure that the bull is not negligently left in a field through which mother and children may have to walk in order to follow the right of way. If, however, the farmer has taken all reasonable precautions to prevent the bull from entering on the right of way, I think there is no doubt that he would not be held to be liable if, by mischance, it broke loose.
The Scottish N.F.U. are, I understand, satisfied on this point, and accordingly it would be wrong, I think, to accede to this Amendment, which would let out not the person to whom the noble Duke and
918
the noble Baroness have referred, but the person who had no interest in seeing that the clause was implemented in order to protect the public.
LORD DRUMALBYN: Could not this Amendment be made completely in keeping with what, I think, are the wishes of the Committee, if the words "deliberately or negligently" were inserted?
LORD HUGHES: As the noble Lord, Lord Drumalbyn, is aware, in drafting terms sometimes words which have one meaning to the layman have another meaning altogether to the lawyer simply by reason of the usage which the courts have applied. While I must admit that the addition of these words seems, at first glance, to be quite reasonable, the noble Lord will appreciate that I must consider their legal meaning. But I will certainly undertake to look at this for the next stage, and in the interval to write both to the noble Duke and to the noble Lord to let them know whether or not this can be accepted, and if it cannot be accepted to explain the professionals' reasons for not wishing to accept it.
THE DUKE OF ATHOLL: Would the noble Lord also consider the point that where a tree falls across a fence the owner of the tree and of the fence could have been negligent in that he did not know that the tree had disease or something of the kind? It is not practicable to look at all the trees which are near fences to see whether they are liable to fall down. One knows that elms are always a great risk since they seem to shed limbs in no uncertain way. I should have thought that if such a thing did happen, if a bull got out of one field into another through which a path passed, the owner or occupier ought not to be liable for all this. I should be grateful if the noble Lord would look at the point. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 44 agreed to.
Clause 45 agreed to.
Clause 46 [Protection of rights of way]:
THE DUKE OF ATHOLL: This Amendment, No. 50, is on much the same lines as a previous Amendment which I moved a little earlier. It seemed to me to be unnecessary for a local planning authority to protect and keep open and free from obstruction a right of way if the right of way was not normally used. Local planning authorities should have much better things to do with their time and money, and if we can find some method which is agreeable to all concerned, including the Rights of Way Society, the owners and the local planning authorities, for doing away with such rights of way, it would be a good thing, and the money thus saved could be spent far more profitably on improving rights of way which are used. I beg to move.
Amendment moved—
Page 38, line 38, after ("way") insert ("for which there is need, and")—(The Duke of Atholl.)
LORD HUGHES: In view of what I have said earlier about the right of way existing for 40 years, the noble Duke will not be very hopeful of my accepting this Amendment; and, if I am right in reading his thoughts, he will not be surprised at what I am now going to say. I should like to say, however, that we shall be watching to see how the new provisions of the Bill work, and so will the Countryside Commission. In the light of the experience we gain and the advice we receive from the Commission and other bodies, including bodies representing owners and occupiers of land, bodies representing users of rights of way and, not least, the local authorities who have the duty of maintaining them, we shall naturally keep the matter under review. But that is as far as I can possibly go. We are creating an entirely new concept, and it may be that in the light of experience the users of land will accept that the right of way, which was the only thing which they had in the past, does not now have the complete importance that it formerly had. As it would be wrong for me to accept at this stage any alteration of existing rights of way, it would be equally wrong to argue that we should ignore the experience which we are going to gain over the next few years
920
in considering future policy in relation to them. In the circumstances, I hope the noble Duke will withdraw the Amendment, and perhaps come back to this matter in a debate in two or three years' time.
THE DUKE OF ATHOLL: The difficulty is that at the moment it is almost impossible ever to close a right of way, because to prove that it has not been used for 40 years is something that few people would be prepared to undertake. I fully understand why the noble Lord cannot accept my Amendment; I must admit that I never thought he would be able to. Therefore I beg leave to withdraw the Amendment, hoping that some form of legislation will be brought in in the future whereby rights of way which patently have little or no use can be closed.
Amendment, by leave, withdrawn.
LORD HUGHES: When subsection (2) of this clause was added to the Bill in another place my honourable friend the Minister of State undertook that the Government would look into the effect of its last four lines. The result of our consideration is the present Amendment. The words which we now propose to delete were taken from the similar provision relating to district councils in Section 29 of the Local Government (Scotland) Act 1894. We are inclined to agree that the clause as it stands goes too far in relieving the local authority of responsibility for the consequence of its acts—even if these are done in the exercise of a permissive power and not of a duty. They may have been all right in 1894, but if, in 1967, a local authority exercises the permissive power which the clause gives to maintain a public right of way, it is only fair that it should be possible for it to be held responsible for damages arising from the way in which it has done the maintenance. I beg to move.
Amendment moved—
Page 39, line I, leave out from ("maintenance") to end of line 5.—(Lord Hughes.)
On Question, Amendment agreed to.
Clause 46, as amended, agreed to.
Clause 47 agreed to.
Clause 48 [Country Parks]:
1.7 p.m.
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved, in subsection (1), to leave out "position in relation" and insert "proximity". The noble Duke said: This is an Amendment which I very much hope the noble Lord will be able to accept. Not only does it replace three words with one word, which is always a good thing, but it also makes it much clearer that local authorities will not be able to set up countryside parks miles away from their own particular town. It is an advantage to make this clear. From all that has been said in another place and on the Second Reading in this House, I am sure the intention is that local authorities should set up these parks in places where people in the area will be able to go in a reasonably short space of time; therefore, they will have to be fairly close to the town or city concerned. It would be better to include the word "proximity" rather than "position in relation", as it seems to me to be more precise and is certainly shorter. I beg to move.
Amendment moved—
Page 39, line 29, leave out ("position in relation") and insert ("proximity").—(The Duke of Atholl.)
LORD BURTON: I should like to support my noble friend on this matter. This is a point which has considerably worried the Inverness County Council, and I think this Amendment would solve their worries.
LORD HUGHES: I am interested that the noble Duke should have brought forward his Amendment involving the use of this word, for when the Bill was being drafted this was a possibility which was considered. It was in fact discarded, and it was because I knew it was discarded that I became wary of accepting the wording which the noble Lord, Lord Drumalbyn, accepted previously. The word "proximity" has been legally interpreted to mean very near—indeed it is hardly wider than "contiguous or adjacent to". It is because of the very restrictive legal effect of the use of the word "proximity" that we abandoned it and sought instead the words "position in relation". We use this word in Clause 59 because there we were looking for a relatively restrictive word.
922
The noble Duke said—and it shows the difficulty of explaining what is meant—that a local authority should not be able to have a country park miles away from its own city or town. Of course, it depends what he means by "miles away". If he is thinking in terms of hundreds of miles, I agree with him. If, on the other hand, he is thinking of "miles away" meaning twenty or thirty miles I must disagree with him, because that possibility is contemplated. What we have in mind is that country parks should be convenient for the town dwellers, and within easy reach for the average family motorist to visit in an afternoon. These parks could not possibly be included if we used the word "proximity", but it would certainly rule out the possibility of country parks being so remote from the town that you had to spend a day getting there and another day getting home. The words in the Bill are therefore reasonably restrictive, but not so restrictive as "proximity" would impose upon us.
THE DUKE OF ATHOLL: I know that the noble Lord and I are trying to achieve exactly the same object. If he does not like the word "proximity"—I did not know that it had this very narrow legal meaning—I should like to suggest the word "propinquity", which was my first choice, but I was told that "proximity" was a more legal term. I feel that "position in relation" is very imprecise, and it depends on your form of travel. If you had an aeroplane you could easily reach a country park somewhere near Nairn, which could be provided by Glasgow. You could travel in half-an-hour in your aeroplane from Abbotsinch to Dalcross, and there you would be. I suppose you could say that it was a "position in relation to", due to the fact that a country park near Nairn was very near Dalcross, and therefore people could get there very quickly. But it seems to me that this argument is entirely fallacious, and I should have thought that some word such as "propinquity" would be infinitely better than this vague phrase of "position in relation". Do I gather that the noble Lord wishes to say something more before I withdraw the Amendment?
LORD HUGHES: Yes. I just wanted to make it quite clear that we had not visualised the possibility that local

923
authorities would be providing many country parks for the particular convenience of those who could afford to buy an aeroplane.
THE DUKE OF ATHOLL: Yes, but I am not sure that the phrase "position in relation" excludes this. This is what worries me. I did not visualise that the Government intended this. I should like the noble Lord to look at this point again, and in the meantime I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN: This is a purely drafting Amendment dealing with the joint advisory committees, and the question is whether, as the words stand, they will have to consult with some local planning authorities. If the noble Lord will simply say that these two words are not necessary, then I shall not press the Amendment. I beg to move.
Amendment moved—
Page 39, line 40, after ("authorities") insert ("if any").—(Lord Drumalbyn.)
LORD HUGHES: The advice I am given is that they are quite unnecessary.
LORD DRUMALBYN: In that case, I should like to withdraw the Amendment.
Amendment, by leave, withdrawn.
1.14 p.m.
LORD DRUMALBYN: Again, I am not certain whether these words are necessary. The point is simply that in this case a sort of marriage, possibly a plural one, is being contemplated between various local authorities for the purpose of providing country parks. As the words stand, they seem to mean that you reach an agreement, with a kind of marriage contract at the start, which cannot subsequently be altered. This seems to be wrong in terms of the words that are used, "having regard to the prospective use". That prospective use must change from time to time, and I should have thought that "from time to time" were the appropriate words to put in. I beg to move.
Amendment moved—
Page 40, line 17, after ("agreed") insert ("from time to time").—(Lord Drumalbyn.)
LORD HUGHES: The noble Lord is quite correct in stating that there obviously must be a need for reviewing this
924
from time to time, because of a possible change of circumstances. The advice which I am given, however, is that this was very much in the mind of the draftsman when the clause was drawn, and that there is no doubt at all that the clause as drafted permits such a review to take place from time to time. I hope that, with this very firm assurance, the noble Lord will not require me to insert words which the draftsman assures me would be redundant.
LORD DRUMALBYN: The noble Lord has said that there is no legal doubt at all, but I felt some doubt about this myself. But in view of the very firm assurance which he has given me, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 48 agreed to.
Clause 49:
Camping and caravan sites
49.—(1) A local authority shall have power to provide camping sites for holiday or recreational purposes whether for the benefit of the inhabitants of their own area or otherwise, and to manage the sites or lease them to some other person.
(4) A local authority shall, in the performance of their functions under this section, have power to acquire land compulsorily where it appears to them that a camping site or an additional camping site is needed in their area, or that land which is in use as a camping site should in the interests of the general public be taken over by the local authority.
LORD BURTON LORD BURTON moved, in subsection (1), after "power" to insert "within their area". The noble Lord said: As on the Second Reading, I must declare an interest, being the owner of two caravan sites. One of these sites was started because on one night there were no less than five different parties camping on the verges of my private drive, and I felt it necessary to have somewhere to offer such people as an alternative camping site. At the same time, a site was set up by Inverness Burgh about five miles away. With the competition from a municipal site, my site ran at a loss for the first three years. However, as a number of our visitors have continued to return, and have also recommended our site to their friends, we have now established a large concern.
I hope it will be seen from this that there is no initial financial incentive for anyone to start a camping site; indeed, it is a considerable gamble. There is a substantial capital outlay; it is frequently difficult to secure planning permission; the season is very short (about four weeks at the peak) with consequent employment difficulties and, as the law stands at the present time, there is little to prevent anyone from parking their caravan or setting up their tent anywhere they like.
If this Bill passes in its present form, it would appear that any local authority can step in and take over a camping concern which has been worked up at considerable risk and is now flourishing. They will, of course, be able to set up sites in opposition at public expense. Rather than jeopardise the establishment of sites by private individuals and risk public money it is surely better to give every possible encouragement to the establishment of privately run sites. It is possible that grants or loans could be given by the Countryside Commission to help establish such sites. It is also possible that the Commission may be able to help with planning permission, in which case, of course, it will be welcomed.
There is a need to curb indiscriminate camping, and the noble Lord, Lord Hughes, has drawn my attention to the 1865 Trespass Act which has fallen into disuse as the penalties are quite out of date. It is hoped, however, that when these penalties are amended the Government will ensure that the public know that they are breaking the law if they camp without permission; and perhaps we could have an undertaking that the police will be asked to enforce this law. Furthermore, there is a need to bring tents within the same jurisdiction as caravans; and, indeed, from the point of view of sanitary arrangements there is a very much greater need for this adjustment.
I appreciate that there are difficulties in accepting this Amendment, not least of which are the representations made by the Association of District Councils. In the North, however, there seems to be no desire that an outside authority should be allowed to come and set up establishments within our authority areas. I
926
raised this matter at the last full meeting of the Inverness County Council, and my remarks seemed to receive a favour able reception. So even if the noble Lord cannot accept this Amendment. I think he will appreciate the need for urgent action; and I hope that he will give an undertaking that steps will be taken—if not now, at least in the near future—to deal with indiscriminate camping and camping in tents, and that there should be some limitation on local authorities setting up establishments in other local authority areas. I beg to move.
Amendment moved—
Page 41, line 11, after ("power") insert ("within their area").—(Lord Burton.)
LORD FERRIER: I should like to support what the noble Lord, Lord Burton, has said in regard to this Amendment.
THE EARL OF DUNDONALD: I, too, should like to support what the noble Lord, Lord Burton, has said, particularly his remarks in relation to indiscriminate camping. As I understand the position at the moment, caravanning is completely under control. Caravans are in caravan camps, and if crofts are allowed to have two caravans they are under proper control, particularly in regard to sanitary conditions. In Argyll we have a great deal of experience of organised caravan camps, but there is nothing to prevent a whole lot of indiscriminate camping going on next door, without any sanitary facilities at all. I should very much like to support what the noble Lord said in that connection.
VISCOUNT MASSEREENE AND FERRARD: I should also like to support my noble friends in this matter. This is becoming a very serious problem.
LORD HUGHES: I must thank the noble Lord, Lord Burton, for the very fair way in which he spoke to this Amendment, and for the way in which he drew attention to the interests of the District Councils' Association. All noble Lords may not be aware that the Bill as originally presented had these words in it, and that it was because of the representations of the District Councils' Association that they were deleted. The district councils argued that the words were unduly restrictive and that they were by

927
a deliberate decision left out of the corresponding clause in the Caravan Sites and Control of Development Act 1960 in so far as it applied to Scotland. There are Scottish local authorities which do operate caravan sites outside their areas; some indeed did so before the 1960 Act. Some of them may well want to operate camping sites, possibly in association with their caravan sites, and we do not see why they should not be allowed to do so. If a local authority decides to exercise these powers outside its area, it will of course have to get planning permission in the same way as any ordinary person would. So there is no question of a local authority having another authority opening a camping site inside its area without its concurrence.
I think I might go on to say something about the camping position. I think it would be improper for me to suggest that the Government should invite the police to enforce the law. We work on the basis that the police in fact enforce the law, and I have had definite evidence of the fact that they do. I may get myself into trouble by revealing this, but one of the reasons why my advisers are so confident that the present law is enforced is because one of them, when a very much younger man than he is now, was in fact fined for infringing the 1865 Act. However, I should like to say that we have discussed the system of licensing of camping sites with the Ministry of Housing and Local Government, who have had preliminary discussions with their local authority associations about it, and we in the Scottish Office are agreed with them that this is a problem which should be tackled in due course by legislation for Great Britain as a whole. The Caravan Act licensing system itself is in fact just emerging from its initial settling down period, and there has been no demand—no strong demand, at any rate—from Scottish local authorities for camping site licensing powers. The evidence we have suggests that they are able to keep sites under reasonable control by using their Public Health Act powers.
However, as I have said, the matter is under consideration, and if it should be felt that it is desirable to extend to camping sites the sort of licensing system as exists for caravan sites, then in due course
928
this will come forward as legislation which will apply in Scotland as well as in England and Wales. I have no doubt that the noble Lord, Lord Burton, will find some way in which, at some meeting of the Inverness County Council, he can give publicity to the way in which the Trespass Act should be enforced; and publicity up there, where it is a matter of strong local interest, may be very much more useful publicity than anything we say in this Committee. Here, perhaps large sections of the Press do not consider that it is worthy of the headlines, whereas up there it might get a headline in a local newspaper.
LORD BURTON: Perhaps this is not within the Bill, but I am afraid that the police are not enforcing the law. Only last night I went to a tent and asked the people to move, and I was told that the police had already been there in regard to a road traffic accident and had told them that it was perfectly all right for them to stay there. It was in one of my woods near a road, and I strongly objected to this. Can the noble Lord tell me whether the Commission will be able to help in the establishment of caravan parks? Because the necessary capital required to start a caravan site is too much for a good many small people, particularly now, if there is a risk of their being taken over by the local authority. I am quite sure that many people will not like risking their money.
LORD HUGHES: The noble Lord will remember that there is provision for the Commission to help private individuals to do certain things, but under fairly tight control.
LORD BURTON: I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
1.25 p.m.
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved, in subsection (4), to leave out all words from "area" to the end of the subsection. The noble Duke said: This is an Amendment to delete the provision whereby local authorities are able to take over land which is already in use as a camping site if they consider it "in the interests of the general public" to do so. I think this is an outrageous provision: that, after people have spent money and provided facilities in establishing a camping site, the local authority

929
should then be able to come along and say, "We think it will be in the interests of the general public that we should take over your site because we charge them 6d. less a night", or something like that. I do not think a local authority should have this power.
I am with the Bill, so far as it goes, in that a local authority should be able to take over virgin land in order to develop a camping site, because there are many places where, I agree, it would be desirable to have camping sites but where, possibly, the private owner does not wish to provide this facility. But where the private owner, or his agent, already provides this facility I cannot see why the local authority should have the power to take over a perfectly good camping site just because they say that it is in the interests of the general public for them to do so. I might add, in parenthesis, that in my experience it is seldom in the interests of the general public for either local authorities or nationalised bodies to take over anything. I beg to move.
Amendment moved—
Page 41, line 29, leave out from ("area") to the end of line 31.—(The Duke of Atholl.)
LORD HUGHES: I should like to assure the noble Duke that this is not a case of "backdoor" land nationalisation. It is, in fact, precedented in the Caravan Sites and Control of Development Act 1960—and, so far as I know, that was not introduced by a Socialist Government. These words are there for the protection of the public. I am glad to say that the equivalent powers in the Caravan Sites Act have been used only once in Scotland. This will not be a surprise to the noble Duke's neighbour, because they were used by the Inverness County Council in respect of a site at Fort William. The Secretary of State would consent to their use only if other ways of bringing the site up to an acceptable standard had been tried and failed.
I can assure the noble Duke that every possible means would be used to protect the interests of the public while retaining the camp in its existing ownership; and I am quite certain that the Inverness County Council (which, so far as I know, is no more Socialist than the Government in 1960) felt that it had to operate its
930
powers only because every other possible means of safeguarding the public had failed. That is the intention in repeating the clause in this Bill, and the Secretary of State, before he would consent to such a takeover, would require the most firm assurances from the local authority concerned that it had taken every possible step to achieve its object without acquiring ownership.
LORD BURTON: I think the reason why the Inverness Council acquired the site was because it could not find anyone prepared to risk the capital. It may be that this will be put right by the Countryside Commission.
THE DUKE OF ATHOLL: I should also like to point out that camping sites are not quite on a par with caravan sites, and that, on the whole, camping sites are considerably cheaper to set up. Therefore, there is probably less reason, when they need expansion, for the local authority having this power, which is what I gather happened in the Inverness case. I would also try to cast the noble Lord's mind back to the Caravan Sites Act. On that occasion, so far as I can remember, many noble Lords on this side of the House objected to the provision in that Bill, but owing to the fact that on that particular day the Whips were on we failed to carry it. I think it was my noble friend Lord Haddington who moved the Amendment to delete this particular provision in what is now the Caravan Sites Act. Unfortunately, the English noble Lords who sit on this side of the House were not so worried about "backdoor" nationalisation, and they all voted with the then Government—plus, of course, the noble Lord's supporters opposite. I think it an outrageous piece of legislation that these words should be in the clause. I realise that now is probably not the best moment to divide the Committee, particularly as it may interfere with everyone's lunch. So I beg leave—
LORD STRATHCLYDE: I wonder whether the noble Lord could help me. He seemed to imply that the Secretary of State would have to give permission before such sites could be taken over by a local authority. Is that so or not? I cannot find any reference to it in this part of the Bill.
LORD HUGHES: I can assure the noble Lord that the consent of the Secretary of State is necessary before this can be done.
THE DUKE OF ATHOLL: I hope that the noble Lord will look at this again, if only to write in some provision that it can be done only when the camping site is a health hazard or something of that sort. With those words, and with the warning that I shall return to this matter at the next stage of the Bill, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
Clause 50 [Provisions of accommodation, meals and refreshments.]:
THE DUKE OF ATHOLL: When I first saw this clause I was hopeful that it would at least allow a breath of competition into the State management areas so far as the sale of alcoholic liquor was concerned. I do not think I need go into the iniquities of the State management area at the moment, because those who were here when my noble friend, Lord Cromartie, introduced his Bill about eighteen months ago will remember the feeling there was that the State management areas should be done away with, at any rate so far as off-licences were concerned, and that some competition should be allowed in such places. I have put down this Amendment to make it quite clear that the Secretary of State shall not be able to stop a local authority from putting refreshment houses in these areas if they consider there is a need for them. I can assure the noble Lord that, particularly in the Annan area, there is a great need for many more such places. I beg to move.
Amendment moved—
Page 42, line 13, at end insert—
"( ) For the purposes of this section the Defence of the Realm (Amendment) (No. 3) Act 1915 shall be deemed to have been repealed").—(The Duke of Atholl)
LORD BALERNO: I want to draw attention to the fact that this clause infringes the principle laid down by the Guest Committee, that giving the local authorities permission to apply for a licence for the sale of liquor is putting the local authority virtually in a position of judge of its own cause. That was
932
something the Committee thought most unlikely ever to happen in Scotland. However, it is such a small infringement that I would not for a moment press it, because I think this exception might well be allowed. I support the noble Duke's Amendment that the areas which were excluded from liberty under the Defence of the Realm Act 1915 should be treated in the same way. It is another slight infringement that would make for greater liberty of the subject.
LORD HUGHES: The Amendment proposed by the noble Duke is technically unsound. The Defence of the Realm Act 1915 was repealed by the Licensing Act 1921, which was, in turn, repealed by the Licensing Act 1949. But what all these Acts had in common was that they continued these special districts. So even if I wanted to accept the Amendment I could not do so, because the Amendment, as it stands, because of these repeals, has no meaning. However, the noble Duke knows that I do not share his views in relation to State management districts. If there is to be an alteration in the law in relation to State management districts it must be because Parliament has discussed the matter and has decided that there is a need for a change, and not just as a result of a by-blow in the middle of lunch-time in your Lordships' House.
THE DUKE OF ATHOLL: As the Amendment is defective—and I was afraid that it might be—and for that reason only, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 50 agreed to.
Clauses 51 to 53 agreed to.
Clause 54 [By-laws.]
THE DUKE OF ATHOLL: As time goes by more and more noise is inflicted upon us. If we are going to list some of the things which are to be put into by-laws for access orders, I should have thought we might also list the making of unnecessary noise which I feel to be on a par with the depositing of rubbish and the leaving of litter. I also think that the making of unnecessary poise disturbs not only other people who wish to take advantage of the land to which these orders apply but also the bird and animal life already on the land. I should have thought that if we are

933
to make such a list then the making of unnecessary noise should be high on it. I beg to move.
Amendment moved—
Page 43, line 41, at end insert—
("( ) the making of unnecessary noise").(The Duke of Atholl.)
VISCOUNT MASSEREENE AND FERRARD: I should like to support this Amendment, particularly with reference to motorcycles and also to speedboats of which, presumably, we shall have a great number in Scotland as a result of this Bill.
LORD HUGHES: My only reason for opposing the noble Duke's Amendment is that the by-laws that would be made could cover the question without the Amendment. I am sure that if the noble Duke looks at subsection (1) he will agree that it is drawn widely enough to cover the point. The wording allows a local planning authority to make by-laws
"… for securing that persons resorting thereto will so behave themselves as to avoid undue interference with the enjoyment of the land, park or waterway by other persons".
This surely covers the making of unreasonable or unnecessary noise and puts it in context; because it is only when noise becomes offensive to other people that it constitutes a nuisance. The lone tenor on the hilltop (just as the same tenor in the bath in the house on his own) is a nuisance only to himself. I think we have made adequate provision for by-laws covering this point.
LORD STRABOLGI: Before the noble Lord speaks further to his Amendment I should like to ask my noble friend why, if this matter is covered by subsection (1), it is necessary to list also the other matters such as depositing rubbish, leaving litter and the lighting of fires. All of them, it seems to me would constitute an "undue interference with the enjoyment of the land", and so on. I cannot see why the Government are averse to adding the words proposed by the noble Duke. It is not just a case of the lone tenor on the hilltop, romantic picture though that may be: it is a question of transistor sets, the numbers of which are increasing yearly. Transistor sets have been banned in most of the Royal Parks in the London area—and very rightly so. This is the kind of thing about
934
which I think it necessary for us to legislate. That is why I consider that the noble Duke's Amendment has much to commend it.
THE DUKE OF ATHOLL: I fully realise that the making of unnecessary noise is covered by subsection (1) but, as has been pointed out by the noble Lord, Lord Strabolgi, so are all the other things listed in subsection (2). I feel that to legislate against the making of unnecessary noise is extremely important. I should also like to point out to the noble Lord, Lord Hughes, that although the lone tenor on the mountain top may worry no other human being, there is no reason to suppose that the golden plovers should like the noise he is making. It may easily disturb their well-earned rest on the top of the mountain—or that of the snow buntings. I cannot see why the noble Lord, Lord Hughes, objects to putting in this sentence, as we have all the other things in anyway, and the subsection starts with the words:
"Without prejudice to the generality of the foregoing subsection …"
I feel it is important that the making of necessary noise ought to be mentioned if we are to mention any of these things at all.
1.41 p.m.
LORD HUGHES: I am all in favour of including the making of unnecessary noise, either in the Highlands or here; but the advice which I have been given is that we ought not to accept this Amendment. I am, however, far from persuaded that the advice which I have been given is necessarily the last word. But in order that I do not make unnecessary difficulties for myself I will ask the noble Duke to withdraw his Amendment now, on the understanding that if between now and the next stage I do not provide him with a more satisfactory reason for not pursuing the matter, he will come back with it. I think that we shall also have to arrange to have a little more time on the next occasion to ensure that all the things which the noble Duke is threatening to bring back, and which I may be encouraging him to bring back, may be adequately discussed.
THE DUKE OF ATHOLL: After those kind words, of course I ask leave to withdraw the Amendment on this occasion.
Amendment, by leave, withdrawn.
Clause 54 agreed to.
Clauses 55 and 56 agreed to.
Clause 57 [Supplementary provisions as to by-laws]:
LORD HUGHES LORD HUGHES moved, in subsection (1), after "authority" where that word occurs a first time, to insert "or an Electricity Board". The noble Lord said: With this Amendment I wish to associate Amendments Nos. 60, 61, 62, 63, 70 and 74. They are all related to the same subject, which is concerned with the provision of recreational facilities by our two Electricity Boards. The Boards own large tracts of land and water. Both they and the Government feel that it is right that they should have clear powers to make the most of the recreational potential of their property. As those of your Lordships who have followed the proceedings of the Countryside in 1970 will know, it is fully in accord with the recommendation of the 1965 Conference that statutory authorities should identify recreational opportunities arising from their operations and be enabled to provide facilities for the enjoyment of such opportunities.
The Amendments put the Electricity Boards in the same position as Clauses 63, 64 and 57 of the Bill put local water authorities. That is, they can provide facilities and charge for them or let them; they can provide facilities jointly with other persons and receive contributions from other persons or bodies towards their cost; and they can make by-laws and appoint wardens. Without making any invidious distinctions, I should like to take this opportunity to refer to the enlightened and sympathetic way in which the North Board has already developed the potential of its new works at Pitlochry which, far from spoiling the countryside, add notably to its tourist attractions. Up till now the North Board, by virtue of their "social clause", have been better armed with powers to do this kind of thing than the South Board. The Amendments ensure that in future they will both have all the powers they need to provide recreational facilities. I beg to move.
Amendment moved—
Page 45, line 28, after ("authority") insert ("or an Electricity Board").—(Lord Hughes.)
On Question, Amendment agreed to.
THE CHAIRMAN OF COMMITTEES: I understand that Amendments 60 to 63 are consequential Amendments. Does the noble Lord wish to move them en bloc?
LORD HUGHES: With the permission of the Committee, I should like to do so.
Amendments moved—
Page 45, line 28, leave out ("or under") after ("56") insert ("or section (Provision of recreational facilities by Electricity Boards)")
Page 45, line 29, after first ("authority") insert ("or Board")
Page 45, line 32, after ("56") insert ("or the said section (Provision of recreational facilities by Electricity Boards)")—(Lord Hughes.)
On Question, Amendments agreed to.
Clause 57, as amended, agreed to.
House resumed.
[The Sitting was suspended at 1.45 p.m. and resumed at 2.30 p.m.]
The Lord Remnant—Sat first in Parliament after the death of his father.

EUROPEAN AIRBUS PROJECT
VISCOUNT GOSCHEN: My Lords, on behalf of my noble friend Lord Jellicoe, I beg to ask Her Majesty's Government a Question of which he has given them Private Notice; namely, whether they will make a Statement regarding the outcome of the meeting of the Minister of Technology yesterday with the French and German Ministers on the subject of the European airbus project.
LORD SHACKLETON: My Lords, my noble friend Lord Beswick will be answering this question by a Statement at about 3.30 p.m. Perhaps I may also inform your Lordships that at a suitable moment after 3.30 my noble friend Lord Stonham will be making a Statement on race relations, and my noble Leader Lord Longford will also be making a Statement on university accountability.

COUNTRYSIDE (SCOTLAND) BILL
2.31 p.m.
House again in Committee.
[The LORD OAKSHOTT in the Chair.]
Clauses 58 to 60 agreed to.
Clause 61 [Improvement of waterways for purposes of open-air recreation]:
LORD HUGHES: I should explain that for the convenience of the Committee it has been agreed between both sides that those Amendments which can be accepted will be formally moved. Those Amendments which cannot be agreed will not be moved and will be re-submitted at the next stage. I beg to move this Amendment.
Amendment moved—
Page 48, line 4, at beginning insert ("Subject to the provisions of the next following section,").—(Lord Hughes.)
On Question, Amendment agreed to.
VISCOUNT MASSEREENE AND FERRARD: I beg to move.
Amendment moved—
Page 48, line 10, at end insert ("but in doing so shall take into consideration the disturbance of any fishing rights over the waterway which may be caused thereby.").—(Viscount Massereene and Ferrard.)
On Question, Amendment agreed to.
Clause 61, as amended, agreed to.
Clause 62 [Exercise of powers under section 61]:
LORD HUGHES: I beg to move.
Amendment moved—
"( ) The provisions of the last foregoing section shall not authorise a body to do anything on land in which any other person has an interest, if apart from that section the doing thereof would be actionable at his instance by virtue of that interest and he does not consent to the doing thereof:
Provided that this subsection shall not apply in the case of land to or over which the public have access by virtue of an access order, but the exercise of any power under the last foregoing section as respects such land shall be subject to the provisions of Part II of this Act and of this section relating to such orders."—(Lord Hughes.)
On Question, Amendment agreed to.
LORD HUGHES LORD HUGHES: I beg to move the next three Amendments.
Amendments moved—
Page 49, line 27, after first ("land") insert ("comprised in an, access order, whether the work is specified in the order or not,")
Page 50, line 32, leave out from beginning to first ("the") in line 33, and insert ("on land comprised in an access order")
Page 50, line 38, at end insert ("of which account has already been taken or will be taken in fixing compensation under section 20 above:
Provided also that nothing in this subsection shall confer on a person a right to such compensation in respect of land or the enjoyment thereof,").—(Lord Hughes.)
On Question, Amendments agreed to.
Clause 62, as amended, agreed to.
Clause 63 agreed to.
LORD HUGHES: I beg to move.
Amendment moved—
After Clause 63, insert the following new clause,
Provision of recreational facilities by Electricity Boards, 1943 c. 32
".Without prejudice to the provisions of section 2(3) of the Hydro-Electric Development (Scotland) Act 1943 (general duties of the North of Scotland Hydro-Electric Board) the North of Scotland Hydro-Electric Board and the South of Scotland Electricity Board may, as respects any waterway or land owned by them, exercise the same powers as are conferred by subsection (1) and subsections (3) to (8) of section 63 above on local water authorities as respects waterways or land in which those authorities have an interest."—(Lord Hughes.)
On Question, Amendment agreed to.
Clause 64 [Wardens]:
THE DUKE OF ATHOLL: I beg to move Amendment No. 72, to leave out the proviso.
Amendment moved—
Page 53, leave out lines 1 to 3.—(The Duke of Atholl.)
On Question, Amendment agreed to.
LORD HUGHES: I beg to move Amendment No. 74.
Amendment moved—
Page 53, line 16, at end insert—
("( ) the North of Scotland Hydro-Electric Board;
( ) the South of Scotland Electricity Board.")—(Lord Hughes.)
On Question, Amendment agreed to.
Clause 64, as amended, agreed to.
Clauses 65 to 73 agreed to.
Clause 74 [Powers of Entry]:
THE DUKE OF ATHOLL THE DUKE OF ATHOLL: I beg to move Amendment No. 75.
Amendment moved—
Page 58, line 28, leave out ("seven") and insert ("fourteen").—(The Duke of Atholl)
On Question, Amendment agreed to.
Clause 74, as amended, agreed to.
Remaining clauses and Schedules agreed to.
House resumed: Bill reported, with Amendments.

MEDICAL TERMINATION OF PREGNANCY BILL
2.40 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Silkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD OAKSHOTT in the Chair.]
Clause 1:
Medical termination of pregnancy
1.—(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if that practitioner and another registered medical practitioner are of the opinion, formed in good faith—
(a)(i) that the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the pregnant woman or any existing children of her family, and
(ii) in determining whether or not there is such risk of injury to health account may be taken of the patient's total environment actual or reasonably foreseeable; or
(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(3) Subsection (2) of this section, and so much of subsection (1) as relates to the opinion of another registered medical practitioner, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case w here he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent
940
injury to the physical or mental health of the pregnant woman.
BARONESS SUMMERSKILL BARONESS SUMMERSKILL moved, in subsection (1), after the first "practitioner", to insert:
"whose name is included in a list which shall be drawn up for the purpose of this Act by the Minister of Health".
The noble Baroness said: In the course of the debate on the Second Reading of the Bill I drew the attention of your Lordships to the fact that Clause 1 provides for a pregnancy to be terminated by two medical practitioners, but it does not specify that one of them should be a doctor approved for the purpose. It will be recalled that when the Abortion Bill was debated in this House two years ago this matter was raised. I was under the impression that the second doctor would be a gynæcologist or at least one with considerable gynæcological experience.
As I have said before, the operation of abortion is a simple one, provided it is undertaken by a doctor with some surgical experience. In the majority of cases, the doctor who will be responsible for the termination of pregnancy under this Bill will be a consultant obstetrician or gynæcologist holding an appointment under the National Health Service. But, as the House knows, all hospitals are not administered by the National Health Service. So we have to consider who will be performing the operation in other places. When the doctor is a consultant obstetrician, there is no difficulty in approving the procedure; but it is more difficult to define a doctor of equivalent experience and status who will be responsible for the cases which are treated elsewhere.
I suggested on Second Reading that the Minister should compile a register of doctors who might possess the necessary experience, although they might not possess the necessary academic qualifications. Since the Second Reading, I have consulted a number of doctors attached to various medical organisations, and I have been advised that the Amendment which I have on the Marshalled List would be the most appropriate in the circumstances. As your Lordships will see, this is a comprehensive Amendment which would cover the provisions in the following Amendments in the names of

941
the noble and learned Viscount, Lord Dilhorne, and the noble Earl, Lord Dundee, my noble friend Baroness Wootton of Abinger and my noble friend Lord Segal. So it is, indeed, comprehensive. All the Amendment asks for is a doctor who is qualified, particularly with experience, and is therefore appropriate to perform this operation.
I do not wish to repeat the reasons that I adduced on Second Reading. I want simply to say that, while I am concerned primarily with safeguarding the interests of the patient, I am also aware that without this safeguard we shall provide an opportunity for the less-scrupulous medical man to obtain substantial fees for performing an abortion within this law. I have only one other thing to say at this stage. I am well aware that compiling a register of this sort would involve certain administrative difficulties, and, believing as I do that government is the art of the possible, I want to say to my noble friend who is to answer for the Government that I have no intention of pressing this Amendment and by so doing jeopardising the Bill. I beg to move.
Amendment moved—
Page 1, line 7, after ("practitioner") insert the said words.—(Baroness Summerskill.)
LORD MOLSON: I should like to make a suggestion to the noble Lord in the Chair. As the noble Lady has said, there are a number of Amendments, Nos. 1, 2 and 3, and perhaps 13 and 14, which raise very much the same matters of principle, and it might be for the convenience of the Committee if a general debate took place upon all those Amendments at the same time. This would not prevent the sponsor of each Amendment from having it put to the Committee.
VISCOUNT DILHORNE: I hope that this course will not be taken on some of the Amendments, because some of them seem to me to cover a different field from that of Amendments Nos. 1 and 2. I am quite prepared to discuss the Amendment down in my name at this stage, but I think there is one down in the name of the noble Lord, Lord Segal, which raises quite distinct and wider issues. I would therefore suggest that we try to keep our debates separate. As I say, I am perfectly content to discuss my
942
Amendment, No. 2, at the same time as this one, if it is for the convenience of the Committee.
BARONESS WOOTTON of ABINGER: I should be content to discuss my Amendment, No. 3, also.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD OAKSHOTT): This is a matter for your Lordships. I would suggest that we adopt the suggestion of the noble and learned Viscount, Lord Dilhorne. That would not prevent the noble Baroness from discussing her Amendment as well, if that is agreeable to her and the Committee.
VISCOUNT DILHORNE: That is Nos. 1, 2 and 3. No. 3, I am afraid, I saw only a few minutes ago. I should have added No. 3 to my list, because that obviously covers the same issue. I think that the object of these three Amendments is the same; that is, to see that there is the right medical advice and the opinions of the right medical people before this operation is performed, and so to ensure that it is performed by a person well-qualified to perform it, and, not least, to prevent the abuse which, as the noble Baroness has indicated, could easily take place under the Bill as it now stands. I do not want to expand upon that. We had references in the Second Reading debate to Harley Street practices, but I am sure that if the Bill remains in its present form, if those practices exist they will certainly become more widespread, because under the Bill it only requires two doctors in partnership to express the same opinion for the operation to become legal.
One thing one must realise. If this Bill is ever enacted, one is putting a tremendous trust on the medical profession. Although you may be able to establish that certain doctors have conducted a large number of operations and that certain doctors (oddly enough, the same two doctors) are always expressing the same opinion, that the operation should be performed, it will seldom, if ever, be possible to establish that the opinions formed in one case are not bona fide, because proof of a real mass of illegal operations will not be any evidence that the opinion formed in relation to one woman is not bona fide. Therefore one is putting a great deal of trust in the medical profession. When one

943
finds members of the medical profession arguing before your Lordships that these provisions should be narrowed and restricted, then surely the case for the Amendment is overwhelming.
I listened to the noble Baroness with the greatest interest. I gather that she has been advised that her particular formula is the most appropriate. That may well be so. However, I was very disappointed by her conclusion—that she would not press her Amendment—and I will indicate why. I have drafted an Amendment in slightly different terms and covering, I hope, much the same ground. But there was an Amendment tabled in the Committee stage in the Commons, at, I gather, the instance of the Ministry of Health, which required the person to be one
"who is or has been a consultant holding an appointment under a Hospital Board involving the practice of gynaecology, or by a registered medical practitioner presently holding such an appointment."
That Amendment having been tabled, I gather that the Government then ran away from it, and that in another place they indicated the strongest possible objections to any lists being approved by the Minister of Health. If that is so, there will not be much chance of the noble Baroness's Amendment being accepted by the Government. If it is the best Amendment, as it may well be, I should be very sorry that that should be the consequence. I would hope that she would think again and press her Amendment, because if she is advised it is the best, then, although the Minister of Health may be very reluctant to accept the obligation, it is a gift which I think we should place on his table, whether he wants it or not—I repeat, if that is the best solution.
I should like, further, to say this. We have had long discussions on earlier Bills about this matter in this House, and I think we then agreed on a form of words which met the wishes of the House about this. That has all been discussed in the Commons, and the Bill has come back to us in its present unsatisfactory form on this aspect. I should like to suggest to the noble Baroness that she should think again and say, "I will press my Amendment to a Division; I will seek to put this into the Bill; and then the onus will
944
be on the promoters of the Bill, and the Government, if they do not like this formula, to come along with a better one". If the noble Baroness is not prepared to press her Amendment to a Division on those grounds, I shall propose to press mine, because I think we shall be wasting our time in Committee to-day unless we make it clear beyond a shadow of doubt that we want a restriction in some form on the present scope of these words.
I say straight away that I am not wedded to the words I have tabled. It may be that the answer of the noble Baroness, Lady Wootton of Abinger, is the better one. But what I ask the Committee to do is to put something in the Bill which will impose the obligation on the Government and the promoters to find a better formula, if they can, before we get to the later stages of the Bill.
2.52 p.m.
BARONESS WOOTTON OF ABINGER: I have very great sympathy with the Amendment moved by my noble friend Lady Summerskill. I see that there may be administrative difficulties, and there may well be delays if the right to give this advice is confined to a list approved for the time being. We all know the difficulties involved in keeping lists up to date, and being sure that the people on them are available. But I am quite sure that it is wrong—I agree with the noble Baroness entirely here—that two medical practitioners, without any restriction of any other sort, should have the right to give this advice; indeed, to make this decision. As the noble and learned Viscount has just said, they may well be two medical practitioners in partnership together; and, really, life being what it is, and doctors being very busy, the second opinion might be no more than one saying to the other at dinner, "As a matter of fact, I am going to recommend an abortion in this case. I expect that is all right by you"; and no further consideration may be given to the matter.
The Amendment which stands in my name has a rather more specific reference, in that I am asking that a psychiatrist—that is to say, a doctor specially qualified in psychological medicine—should give the second opinion, except in the emergency case, which we come to. I think, at a later stage of the Bill. The reason why I ask that is that

945
one of the grounds on which a termination of pregnancy may be recommended is the probable injury to the mental health of the woman; and I should think it was extremely important that in that case a doctor who is specially qualified in assessing the effects of this operation, or of a continuation of pregnancy, upon the mental health of a woman ought to be a party to the decision; and it is for that reason I have tried to bring this particular qualification into the picture.
I agree very much with the noble and learned Viscount that it is desirable that we should make it perfectly plain one way or the other—and I do not much mind at this stage which way—that we are not satisfied about the two medical practitioners, who might, as I say, well be in partnership with one another.
LORD PARGITER: I stake very much in favour of what the noble and learned Viscount, Lord Dilhorne, said with regard to this question. But it would, of course, be very restrictive. I am a little worried about one aspect: the possibility that there might be a relatively small hospital area, with one consultant available who might be a conscientious objector to administering this Bill at all. A situation like that might create some difficulties. I do not know whether the noble and learned Viscount has in mind how we could overcome that. If he has, I am happy with the Amendment as it is.
VISCOUNT DILHORNE: I would not suggest that I have drafted the perfect Amendment for this purpose. I am sure there are many points that could be raised. But what I want to do is to get in the Bill something which will force the Government and the sponsors to make it perfect, and overcome the kind of point to which the noble Lord referred.
LORD PARGITER: I thank the noble and learned Viscount. I am quite happy for it to be left in this particular way at this juncture. I am a little more concerned about the question of the practitioner specially qualified in psychological medicine being the second person concerned. I should think, quite frankly, that a good consultant, on being consulted on the physical aspects of this question, would almost certainly look for that opinion, if he felt there was any problem of a mental nature. It is usually done by doctors at the present time. If
946
a question arises beyond what they consider their immediate sphere, they call for another opinion. But I think it might cause a little difficulty to say that in every case one of them must be a mental specialist.
LORD AMULREE: I should like to say a few words on these Amendments. I am going to take them in reverse order, because I am going to start with what the noble Lord, Lord Pargiter, has just said. I think there is a great deal of truth in what he has said, because I should not be at all happy if the second doctor had to be a doctor trained in psychology. I think one would find, as the noble Lord said, that a consultant would naturally, if there was any psychological factor involved, call upon his psychological colleague; and that, I think, is something which could be left to the opinion of the doctor doing the work, rather than have it put into the Bill itself.
The other point I am not happy about is the question of drawing up a register of doctors who shall carry out this work. I know that there are certain arguments for this, which have been put forward by the noble Baroness and the noble and learned Viscount, but I should have thought that a great deal of that aspect could have been dealt with by the proper enforcement of Clause 1(2), which says:
"Except as provided by subsection (3) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Minister of Health or the Secretary of State under the National Health Service Acts, or in a place … approved for the purposes …".
I think that that would go a long way towards ensuring that the operation would not be carried out by some person who was not properly qualified.
I can see one drawback to that, however. I have in mind two doctors such as those to whom the noble Baroness has referred. I do not think that a great deal of work is done over a drink in the evening: I think it is taken a little more seriously than that. But I think it might be possible for such work, which is now done in the nursing homes, to be done in the private wards of hospitals vested in the Minister. I think we are not going by this Bill to stop what I might call the "racket", and it seems to me

947
that the matter would be more under control if the operations were done in the hospital. That is why I, for one, do not feel it necessary to specify the doctors involved, except that they should be upon the staff of a recognised hospital working under the National Health Service Acts. Those with experience of the working of hospitals would agree, I think, that that would, in all probability (though certainty one can never claim in anything), ensure that the right person does the job.
LORD SEGAL: I am not quite clear whether, as it is worded now, Amendment No. 2 really fulfils what I take to be the object of the noble and learned Viscount. I think his intention is that the actual termination of pregnancy should be performed by one who is employed under the National Health Service Act.
VISCOUNT DILHORNE: With great respect, it does not say that. If the noble Lord will look at the Amendment, it is to line 8 and says:
"after second ('practitioner') insert ('one of whom is employed …')"
That is to say, you have a reference to two practitioners, and one of the two must be a person employed under the National Health Service as a consultant or approved by the Minister of Health or the Secretary of State for the purpose. In other words, he is approved for the purpose of being a doctor who can give opinions under Clause 1(1).
LORD SEGAL: That is precisely the point I was raising. I take it, then, that the noble and learned Viscount has no objection whatever to the actual operation being performed by a general practitioner so long as a consultant is able to give his second opinion.
LORD GRENFELL: As we are dealing with these three Amendments and trying to find some sort of a solution, may I suggest that my noble and learned friend Lord Dilhorne's Amendment is, in my view, the best. But I should like it to read
"one of whom is employed under the National Health Service as a consultant",
and leave it at that, because there are plenty of consultants. It will not be restrictive, and they are very responsible
948
people. That seems to be the best solution of the three.
I do not altogether like the Amendment proposed by the noble Baroness, Lady Wootton of Abinger, because it is restrictive. One has to find a psychiatrist, and I think it narrows things down and may make the girl feel that she wants to go straight off and have the abortion, instead of waiting until she can get all this advice. It seems to me that a general practitioner and a consultant would deal with the situation well, and would be respected in that decision.
BARONESS WOOTTON OF ABINGER: I wonder whether the Amendment to my Amendment, proposed by the noble Lord, Lord Grenfell, is really very wise, because if it is merely "a consultant" he may be a consultant in anything, in case of emergency, and he may not be particularly interested in psychological medicine or in gynæcology. I would press strongly that in some shape or form we should bring a specialist in psychological medicine into these decisions, in view of the fact that the Bill says quite specifically that the advice may be given that the continuation of the pregnancy would involve a risk of injury to the physical or mental health of the pregnant woman. Surely, if it involves injury to the mental health of the pregnant woman, this is a matter for a specialist in mental health. If it involves the risk of physical injury, this is a matter for a specialist in the particular line of physical medicine involved. But I do not think we can be certain that a third doctor who is called in would always have knowledge of psychological medicine, and if we are going to have physical advice on a question which is physical I think we ought equally to have mental advice on a psycho- logical question.
LORD ST. JUST: Would the noble Baroness mind if it was an ordinary practitioner or a consultant in psychological medicine?
BARONESS WOOTTON OF ABINGER: I am not very certain what the statutory phrase for a psychiatrist is. Judging from the Mental Health Act, I think the nearest I can get to it is "a specialist qualified in psychological medicine". But I am prepared to take the correct phrase, whatever it may be.
THE EARL OF CRANBROOK: I hope the noble Lord who speaks for the Government will not reply that it is impossible to make the list because there is already a list of general practitioner obstetricians which is selected by local committees set up under the National Health Service Act, many of whom will have just as much experience of obstetrics as a consultant obstetrician in a hospital. Indeed, because I believe that the local practitioner obstetrician probably has a wider experience of the sort of problem which will have to be faced when an abortion is found to be necessary, I hope the noble and learned Viscount, Lord Dilhorne, will accept the Amendment proposed by the noble Baroness, Lady Wootton of Abinger, because I should be sorry to see the second opinion confined only to consultant obstetricians and gynæcologists.
VISCOUNT DILHORNE: The noble Lord will see that under my Amendment anyone on a list approved by the Minister will suffice, as well as a consultant.
THE EARL OF CRANBROOK: I see that, but the noble Viscount's Amendment appears to me to be somewhat tautologous in putting in "consultant". I hope he will ultimately clarify that by saying "consultant obstetrician and gynæcologist" who is automatically on the list at the same time. In brief, I hope and trust that the noble Lord who is to reply to this debate will not plead that it is impossible to make a list when such a list of admirably qualified men already exists.
3.7 p.m.
LORD BESWICK: It seems fairly clear that there is a widespread opinion in the Committee about the desirability of achieving the intentions behind these various Amendments. It also seems fairly clear, to me at any rate, not only from the fact that there are these different Amendments but by what has been said this afternoon, that the wording to achieve the intention will not be easily found. At this point I do not propose to try to solve the difficulties that lie behind this problem, but probably I could say what, in the opinion of the Ministry of Health, would be the unsatisfactory features of the Amendments that we are now considering.
May I take first the Amendment of my noble friend Baroness Summerskill, who
950
requires a list to be drawn up. Although I have listened to what has been said just now about the fact that there is a list, if we were to accept this particular Amendment I would draw the attention of the Committee to the fact that there is no indication here as to the criteria to be applied to the list that is wanted by my noble friend.
BARONESS SUMMERSKILL: I think the relevant word is "appropriate".
LORD BESWICK: That leaves open the question of what is "appropriate".
BARONESS SUMMERSKILL: Yes, certainly.
LORD BESWICK: But one other flaw, if I may say so, in the actual wording of my noble friend's Amendment is that the jurisdiction of the Minister of Health extends only to England and Wales, and the Amendment therefore makes no provision for Scotland or for operations undertaken in Service hospitals. Moreover, the Minister of Health would be required, as he made quite clear in another place, to make quite invidious distinctions between individual doctors, and he has indicated that this reponsibility would be quite unacceptable to him. The list, whether prepared by the Ministry of Health or a panel, would set out to define doctors who may terminate pregnancies. It might well prove difficult in practice to differentiate between reputable practitioners and what have been called "professional abortionists". In view of the obscurities of the clause it would probably not be acceptable to the Committee to accept this particular Amendment.
Perhaps I may now turn to the Amendment standing in the name of the noble and learned Viscount, Lord Dilhorne, and the noble Earl, Lord Dundee. The first part of the noble Viscount's Amendment requires that either the doctor terminating the pregnancy or the second doctor should be employed under the National Health Service as a consultant. But it does not specify the qualifications of the doctor who carries out the operation. It requires only that either he or the other doctor who gives his opinion should be qualified in the way defined. It may be argued that it is the decision to do the operation that is important,

951
and that provided a consultant is concerned in the decision it is reasonable to allow the operation to be performed by a less qualified doctor, the good sense of the doctors concerned ensuring that a doctor would not undertake the operation unless he were qualified to do so. But the Bill requires the doctor who does the operation to be one of the two doctors who decides that it is justified, and if it were desired to put restrictions on the qualifications of one of the two doctors it would appear better to apply them to the operating doctor. In this way it would be ensured that one of the two opinions would be given and the operation would be carried out by a doctor qualified in some defined way.
Then, in requiring as an alternative that one of the two doctors should be "employed under the National Health Service as a consultant", the Amendment is at the same time too wide, in the sense that it would, by definition, include some consultants who would not be expected to be able either to operate or to form an opinion as to the need for an operation for termination; for example, the term "consultant" would include a consultant specialist in ear, nose and throat operations, or indeed a skin specialist; and it would be too restrictive in that it would exclude from advising on or performing a termination a National Health Service gynæcological registrar or other junior hospital doctor, or general practitioners with a hospital appointment involving the practice of gynæcology, and consultant gynæcologists who have held, but no longer hold, appointments in the National Health Service. In these respects, therefore, it may be said that the Amendment is defective.
As to the second leg of the Amendment, similarly it does not find favour with the Minister because it would require doctors to be approved for the purposes of the Bill by the Minister or by the Secretary of State.
VISCOUNT DILHORNE: It has not got that defect. It is not just the Minister of Health; it includes the Secretary of State.
LORD BESWICK: This provision was probably inserted because of criticisms that any restriction on consultants might be too restrictive in areas where there are few consultants and these are opposed
952
to operating on the wider grounds which the Bill would permit. As my right honourable friend said of a similar provision in the other House, such a requirement would place on him the responsibility of making invidious distinctions between doctors, and again he would find this quite unacceptable.
On the Amendment of my noble friend, Lady Wootton of Abinger, again the Amendment is open to objection as being too restrictive, and would, for example, have the effect of eliminating the majority of general practitioners, who may be in a good position in the ease of their own patients to advise whether a pregnancy should be terminated.
BARONESS WOOTTON OF ABINGER: Surely the noble Lord will accept that the patient's own doctor is presumably the first medical practitioner, not the second opinion.
LORD BESWICK: Perhaps I could go through my list of the defects. There is the further objection that while the psychological factor is no doubt important in many cases of termination, it is not invariably present. A large number of pregnancies may need to be terminated on physiological grounds in order to protect the woman's physical health, without any psychological element being in question, and it is not appropriate in these cases that the opinion of a psychiatrist should always be required. Then there are other ways in which the Amendment appears to be defective. For example, if the operating doctor himself were qualified in psychological medicine but the doctor giving a second opinion were not, the operator would be in breach of the law in operating without a second opinion from a colleague with a qualification in psychological medicine. In those circumstances, therefore, this Amendment, too, would seem to have defects.
BARONESS WOOTTON OF ABINGER: I must say I admire the ingenuity of my noble friend's list of defects.
3.17 p.m.
LORD SALTOUN: I should like, first of all, to congratulate the noble Lord on the high office he has now taken up, and to say that he succeeds somebody who was a wonderful Chief Whip. I have every confidence that he will be a worthy successor.

953
I am a little troubled about this Bill for this reason: that it contemplates one single operation, and I believe that in countries where these operations have long been legal they are carried out time and time again—I have heard of ten and twenty and even more such operations—on a single patient in succession, and the end product, they tell me, is very often a nervous wreck. I am told by my doctor friends that that is impossible in this country, because no British doctor would carry on like that. But I have to remind your Lordships that where there is a succession of such operations the process is gradual. Take the ninth operation. The doctor may say, "This is pretty bad. One more operation will not do any harm". In that way you gradually arrive at your end product of a nervous wreck.
I think the most important person to be consulted is the patient's own doctor, who has been the patient's doctor for a long time and who knows the history of the case, because I am bound to say I find it very repulsive to think of British girls being used again and again and then thrown on the scrap heap. If there is any danger of that kind of thing—and in other countries it does happen—then some sort of safeguard is required. You cannot put too many safeguards into this Bill. I would remind your Lordships of another thing, and that is that any one of your Lordships can divide on any one of these Amendments, because no Amendment can be withdrawn without the consent of the whole House. So the matter is in your Lordships' hands and now awaits your decision.
LORD CONESFORD: I wonder whether I might speak, as one who has not put down any of these Amendments, to say that I find the attitude of Her Majesty's Government on this matter rather shocking. Let me say quite clearly why. The noble Lords who have put their names to these three Amendments have done so in an honest endeavour to improve the Bill. The noble Lord, Lord Beswick, has, from his brief, produced some quite cogent criticisms of the details of each of these three Amendments, and I thought that his conclusion would therefore be "I recommend, and the Government
954
recommend, a rather better Amendment than any of these three on the following lines …". But nothing of the sort. There was not from beginning to end of the Minister's speech any suggestion that the Bill as it stands will be better than it would be with the acceptance of any of these three Amendments.
The effect on my mind is to confirm the view of which the history of this Bill has already convinced a great number of people: that reform of the criminal law really must be undertaken by the Government of the day. The Government really cannot express complete indifference to what are the provisions of an amendment of the criminal law. I share in the tributes that have been paid to the Minister yesterday and to-day on his personal qualities, and add my welcome to those that have been expressed. But in the speech he made this afternoon he has criticised only the three attempts at improving the Bill. He has not said one word in justification of the clause as it stands at present. In those circumstances, I hope that the Committee will insist on one of these three Amendments. However imperfect the Amendment may be, it will then compel the promoters, who will I expect seek the help of the Government, to produce at a later stage something better than the Amendment we adopt. So far, no suggestion has been made that the Bill as it stands is satisfactory. Indeed, the Minister—and I wish to be fair to him—started off by saying that it was clear from the speeches already made that your Lordships were not satisfied with the clause as it stood. He then went on, as I say, to criticise each of the three Amendments, pointing out the difficulties. Whatever the difficulties may he, they must be solved if a satisfactory Bill is to ensue. I therefore profoundly hope that one of the three Amendments will be adopted. I think the third is a little too limited, and I hope, therefore, that we shall vote either on No. 1 or No. 2.
VISCOUNT ADDISON: So far, I do not seem to have heard any evidence to suggest that any of the three Amendments by itself would improve the Bill. I cannot agree with the noble Lord who has just sat down. I think that the noble Lord, Lord Amulree, has the right answer. He said that the proper way to

955
deal with this part of this Bill is to have a proper insistence on the terms of Clause 1(2).
VISCOUNT DILHORNE: Would the noble Viscount give way to me for a moment? Surely, on any reading of subsection (2) of this clause, that would apply only to the fitness of the place for the performance of the operation. It gives no control over the kind of doctors who are to give their opinion and do the operation. And if the sponsor thinks that subsection (2) is in any way restrictive of subsection (1) he does not understand his own Bill.
VISCOUNT ADDISON: I cannot agree with the noble and learned Viscount. The fact that the Minister would himself have approved the place (because if it were not approved by the Minister it would not be such a place) is to my mind sufficient evidence to make one think that the doctors there are suitable doctors. While I sympathise with the view and the purpose of noble Lords who have produced the Amendments, I feel that each of the Amendments is lacking in something, and my own feeling is that the Bill by itself is best, with proper insistence on that subsection.
LORD FERRIER: I am entirely in agreement with what my noble friend Lord Conesford said. With due respect to the noble Viscount who has just sat down, I feel that this clause requires amendment. Something which the noble Lord, Lord Beswick, said provokes me to address your Lordships. He pointed out that the first important decision is that the operation be performed. I am not competent, nor do I wish, to discuss the question of the skill of those who perform the operation; but it seems to me that, comparing the debates in this House on the original Abortion Bill with those on this Bill, it is interesting to note that on no occasion in this House on this Bill has the position of the father been referred to. The experience in the Aberdeen practice has shown that the vast majority of abortions carried out are on married women who already have two or three children. This was brought out in our debates on the previous Bills, when I raised the point: where does the father come in over this? I think I am right in
956
saying that it was the noble Lord, Lord Amulree, who satisfied me that the particular wording of the Bill, as it then stood, included among those concerned not only the practitioner but somebody connected with the National Health Service who would have access to a welfare officer. I recall that the noble Lord, Lord Strange, who has an Amendment down to-day, Amendment No. 26, also spoke in those terms.
It is for that reason that I agree most profoundly with the noble and learned Viscount, who said that we certainly should put one of these Amendments to the vote and put it in the Bill, and challenge the Government to produce something better if they can. I hope that the noble Lord who is in charge of the Bill will deal with this aspect of the importance, having regard to the mental welfare of the woman concerned, she perhaps being a married woman with a family already, of there being some provision for a welfare officer to be concerned. I regard that as more important in this particular case than a psychologist.
3.28 p.m.
LORD SILKIN: This matter has now been discussed at considerable length, and I want to make a suggestion. First, I would say that in my opinion the Bill as it stands is right. I do not think it needs any amendment at all. May I explain why? It is quite clear from Clause 1(1) that one of the two persons who has to be satisfied that an abortion is necessary is the person who carries out the operation. That operation must be carried out either in a National Health Service hospital, in which case we can be quite certain that a suitable person will be carrying out the operation, or in an institution
"approved for the purposes of this section by the"
Minister. As I read "approved for the purposes of this section" it must mean a place where it is appropriate and suitable that such operation be carried out, and it is not restricted to the physical condition of the place at all. Before the Minister will approve a place other than a National Health Service institution, he must be satisfied "for the purposes of this section" that they have suitable staff.

957
Therefore, what is the position? One of the two people will be the person who carries out the operation and is, under this clause, a suitable person to do it. The other one will normally be the person's own doctor. Therefore, I see no problem here at all. The Bill seems to do exactly that. The noble and learned Viscount seems to have a "bee in his bonnet" about two doctors getting together over a cup of tea and conspiring to give certificates. So has the noble Baroness. But if one of them has to do a hospital job, how can that happen? How can they be partners, unless the private doctor is in partnership with a hospital doctor? I just do not understand this. It is a mare's nest to me.
I want to say one thing at the outset. By all means let us enjoy ourselves and discuss this Bill at great length, move Amendments and pass them. But 123 noble Lords last week wanted this Bill passed. They approved it. We must face the fact that time is against us, and if we pass any Amendments of which another place does not approve we shall effectively kill the Bill, in which case I may have the privilege one day of introducing, for the fourth time in this House, another Bill. This I should greatly deplore. These Amendments, or the principle of them, have all been discussed in another place. In the other place in Standing Committee they spent seven and a half hours on this point, and they spent another four hours on Report. This was the conclusion they came to as it stands in the Bill. Therefore I would beg noble Lords not to play about with this matter but accept the Bill as it stands.
SEVERAL NOBLE LORDS: No.
LORD SILKIN: I meant this provision. Your Lordships say "No". I am entitled to make my appeal to noble Lords, if they want the Bill passed, to accept it as it stands. I stood up to make a suggestion about these Amendments. I have listened to what has been said and I have expressed my own opinion about the matter. I think the Bill as it stands is all right, but it would be wrong on my part to be dogmatic about it and to ignore the forceful arguments which have been put forward by noble Lords in various parts of the House. I am perfectly prepared, if these Amendments
958
are withdrawn, to consider them seriously. My noble friend has indicated that as they stand they are not acceptable. Indeed, the noble and learned Viscount indicated that he was not quite happy about his own Amendment and was not altogether happy about the others. Therefore I feel that it would be wrong to try to force them through to-day. But I should be quite willing—and I say this in good faith—to study what has been said, to discuss the matter with the Ministry and with the sponsors in the other place, and to see whether we cannot come back on October 23 with a form of words which would be acceptable. I am prepared to discuss it with the sponsors of these various Amendments to see whether it is possible to get something which will satisfy all concerned.
VISCOUNT DILHORNE: I have had discussion after discussion on this Bill. My mind goes back a long time to the occasion when the noble Lord, when he first introduced the Bill, had discussion with me and promised that he would consider any suggestions I had made seriously. He fulfilled that obligation, he considered them seriously, but there was no result at all.
May I reply to some of the observations which have been made by the noble Lord? He says that he thinks these Amendments are a mare's nest. There is a very real principle behind them. I would agree with him that if the operation is to be performed in a National Health Service hospital, it is most unlikely that the hospital will allow anyone to perform it who was not fully qualified. But when the noble Lord goes on to say that approval by the Minister of a place where the operation can be performed, which is not a hospital, implies the approval of the staff, there is a gap in his argument, because it does not mean that the Minister has to approve the person who performs the operation.
VISCOUNT ADDISON: I would interrupt the noble Viscount to point out that it says "approved for the purpose".
VISCOUNT DILHORNE: For the purpose of performing an operation; but the point is that there is nothing about approving the person who does the operation.
LORD SILKIN: When I made my offer I was taking into account the possibility that those words are not adequate. I gave my own interpretation of them. I thing that it is adequate to enable the Minister to approve a place; but, if it is not, then my undertaking goes so far as to consider the possibility of putting in words which would meet that point.
VISCOUNT DILHORNE: The noble Lord has not promised to put in any words at all. All he has done—and he has done it before—is to say that he would consider it seriously. I am rather tired of that formula. I know the noble Lord does "consider seriously", but nothing ever happens on this Bill after that consideration.
May I continue my point? So far I have been dealing with the point whether there is any control over the person who performs the operation. I say that, as the Bill stands, there is no control of any kind over the person who does the operation in a place approved by the Minister for the purpose, because the Minister does not have to give consent or approval to the person who uses the operating theatre in such a place. Secondly, I am concerned with who is to give the opinions that the operation should be performed. As the Bill now stands, it is two registered medical practitioners, without any qualification at all. One of the two medical practitioners has to be the one who performs the operation. That is the position as the Bill now stands. The noble Baroness has put forward her Amendment which, in view of what happened in another place, met with the kind of response that I anticipated—that there should be a list of persons competent to give the opinions on matters prescribed in Clause 1.
The noble Lord, Lord Beswick (to whom I should like to add my congratulations) dealt with that by picking out every possible objection which there could be to it. But the real point is that the Minister does not want to undertake that obligation as he thinks it would be invidious. There may be force in that; I do not know. If it is the best solution, I think the Committee should accept it. But in regard to my Amendment—I do not guarantee that it is perfect; I do not know enough about the medical profession to say—all I am providing is that one of the two registered medical prac-
960
titioners must be a consultant. The noble Lord, Lord Beswick, asked whether the person would have to perform the operation. I do not mind about that. At least one must be a consultant. It may be that he should be defined as a gynæcological consultant, or indeed that one should bring in a psychiatrist. But those are all matters on which the Government are competent to speak.
What I should like the Committee to do is to make it perfectly clear, by passing either the first Amendment or the second Amendment, that this House thinks that a limitation is essential, and carry that into the Bill. If we carry that into the Bill, then indeed the sponsors will have to consider the matter seriously and put the provisions of the Bill into proper form, and so will the Government. I certainly would not then resist their efforts to make the drafting of the Bill better. I hope the House will now be allowed to make its decision. I was one of the 123 who voted for the Bill on Second Reading. It was not because I was in favour of the Bill as it stood, but because I was hopeful of making it a better, workable and proper measure. I have reason to suppose that none of the suggestions put forward in the Second Reading debate is acceptable to the sponsors, but I do think that we should not be deterred by any threats and that we should do our job and try to make the Bill workable.
THE EARL OF DUNDEE: I am sure that the noble Lord, Lord Silkin, wants to do his best to be reasonable and helpful. I am equally sure that the supporters of these Amendments want to be reasonable and helpful too. When the noble Lord claimed, as he did, that last week his Bill had a huge majority, I am sure he was aware that the greater number of those who voted in that majority had strong reservations on details of the Bill which deeply affected their principles of right and wrong. This is one of those points. I think that the majority of your Lordships want to make a decision in regard to the second practitioner whose approval has to be given (this is nothing to do with the place where it is done; it is a question of the qualification of the people who give their approval), that one of the two should be a consultant, I would say he should be a gynæcological

961
specialist, because he is the primary person to consult, and I am sure any doctor who thought that there was any question of mental trouble would in any case try to obtain the best opinion from a psychological specialist as well on the condition of the patient. What we want to do is to decide on the principle.
The reason that I favour the Amendment of my noble friend, Lord Dilhorne, to which I put my name, is that among other things it specifies a little more clearly what we want to be done, besides mentioning the Secretary of State for Scotland. I am quite sure that if your Lordships decide in principle in favour of this or one of the other Amendments, the rather meticulous list of objections, as they have been described, put forward on behalf of the Departments could be overcome. If it could not be overcome, then if we put common-sense legal terms into the Bill it would be a matter for the courts to interpret. But I am sure that the Government Departments concerned, if your Lordships decide in favour of the Amendment of my noble friend, and if it is put in the Bill, will do their best to see that, so far as they are concerned, what Parliament wants is carried out.
LORD STONHAM: Speaking on behalf of the Government Department concerned, if the intentions of the noble Earl, Lord Dundee, are carried it will mean foisting on the Government Department a responsibility which does not belong to it. I do not want to discuss this issue in principle. All I want to say is, first, that I do not believe the Committee has yet made up its mind precisely and exactly what it wants to do on this matter. I know that a general view has been put forward that one of the practitioners should have a particular qualification, but there is no single Amendment before the Committee on that point.
The other thing I want to say, particularly in view of what the noble Lord, Lord Conesford, said, is that from the very beginning in another place, and in this House, the Minister representing the Government has made it absolutely clear that the Government are neutral, that the votes on this issue are completely free; and it is the very difficult task of my noble friend Lord Beswick and myself to try at all stages of this Bill to maintain that neutrality. My noble friend has been
962
reproached because he pointed out objections to the Amendment of my noble friend Lady Summerskill. One of the prime duties of my noble friend and myself is to inform the Committee whether or not an Amendment is workable or viable. If we did not do that we should be completely failing in our duty and we should do better to go home.
With regard to the extraordinary advice which has been given by the noble and learned Viscount, who ought to know a lot better, and the suggestion which he made to my noble friend Lord Silkin that he often said he would look at a thing and nothing happened, all I would say is that it is within my certain knowledge on the last two Bills which my noble friend has sponsored that that is not so. But, leaving that point aside, it is the duty of the Government on this Bill—a duty which they have accepted—to give drafting assistance.
If this Committee, or if my noble friend in consultation with the sponsors of this Amendment, could get together and agree, "This is what we want" and then come to my Department and say, "Tell us how to draft it", then of course we should try to draft it. But the noble Lord, Lord Conesford, suggested, and the noble Lord, Lord Ferrier, said in terms, that we should pass one of these admittedly defective Amendments—that was admitted by every one of the three sponsors of each Amendment—although the noble and learned Viscount is urging the Committee that it should pass an Amendment which he admits is defective—
VISCOUNT DILHORNE: With great respect, I have not admitted that it is defective. I said that it might be capable of improvement. So far as the Amendment of the noble Baroness is concerned, the only defect pointed out is the omission of the reference to the Secretary of State, but that could be put in at a later stage.
BARONESS WOOTTON OF ABINGER: I have not admitted that my Amendment was defective.
LORD STONHAM: If my noble friend Lady Wootton of Abinger did not admit that it was defective, certainly my noble friend Lord Beswick indicated that it was so. But this is the point. If my noble friends and the noble and learned Viscount have not admitted that their Amendments

963
are defective, they have admitted that they are open to certain objection. I think that is a fair statement. In those circumstances, I think it is wrong to do as the noble Lord, Lord Ferrier, urged: to put in one of these Amendments, whichever one is favoured, and then challenge the Government to produce something better if they can. The point is that on a Bill on which the Goverment are neutral it is not the Government's job to do that. The Government want to help the Committee. My noble friend and I will continue to point out when Amendments are open to objection on grounds of fact, on grounds of viability, or on grounds of impracticability if applied. That is their job. But it is not our job, as we see it, on our instructions to give advice on matters of principle and I think your Lordships would object to it if we did.
LORD DERWENT: The noble Lord says that it is not the Government's duty to take sides in this Bill. As my noble friend Lord Conesford said, it is the Government's duty, particularly at a late stage of a Bill of this kind, to take some active part because it is altering the criminal law. I hope that one of the noble Lords who has an Amendment down will press it for that reason. Whether the Amendment is defective or not, it may induce the Government at long last to see where their duty lies.
LORD STONHAM: We are taking this action in trying to prevent the passing of an Amendment which is defective, and so making the criminal law defective. Surely it is plain that if this Committee decide a matter in principle and the Government then say, "We will see that the drafting is all right", the Government are discharging their responsibility. But it is wholly wrong for noble Lords, particularly those who have been Ministers, to say, "Look, there is something wrong about this Amendment, but let us force it through and then the Government will put it right."
VISCOUNT DILHORNE: The noble Lord keeps saying that there is "something wrong". I say that there is nothing wrong with my Amendment, although it might be improved—and there is a great deal of difference. If you want to improve it you can do it when it is in the Bill, and that will be the task of the Government.
BARONESS WOOTTON OF ABINGER: I want to say only two things. The first is that my noble friend Lord Stonham is suggesting that the Committee has not made up its mind what it wants. That is one of the drawbacks of discussing three Amendments together. But the Committee will have a perfectly good opportunity presently, if anybody wishes so to move, to say precisely what it wants; namely, whether it wants any one of these three Amendments, and, if so, which one.
The other thing I want to say is that I think the reply of my noble friend Lord Silkin in its two halves did not really match up. He asked us in the beginning not to "play around" with the Bill—and I am rather sorry that he used that expression because we greatly honour and respect the sincerity of his opinions and we hope that he will recognise that ours, also, are not frivolous—because if we did we should be in danger of losing it. In the same breath he said that he would give consideration to the Amendments which have been proposed, and if, on reflection, he came to the view that the Bill needed to be amended he would come forward with an Amendment on Report. The risks that the Bill will have to go back to another place and then come back to us and so will be lost through time, will be just as great if the noble Lord, Lord Silkin, accepts an Amendment on Report as if we pass an Amendment now.
LORD SILKIN: The noble Baroness is quite wrong. What I said was that I would consult the sponsors in another place and try to get something which would be acceptable to the other place. But if we pass Amendments here at this late stage which are not acceptable to the other place, it will mean that this Bill is lost.
3.47 p.m.
LORD CONESFORD: I am most anxious not to be unfair to any Minister. Of course I make no complaint if they criticise these Amendments: I agree that that is their duty. My complaint is that they do not criticise the Bill as it stands. I should have thought the duty was quite as great to criticise the Bill for its defects, as to criticise the Amendments for their defects. As regards admitting defects, I agree entirely with my noble and learned

965
friend Lord Dilhorne that Amendment No. 2 has no defect unless it is a defect that it could be better; that it is better than the Bill as it stands seems to a great many of us, at any rate, to be obvious.
I should like to say one word to the noble Lord, Lord Silkin, whom, as I expect he knows, I have greatly respected over the years and whose fair-mindedness I think the Committee recognises. He said that the Bill had received a Second Reading by a great majority. Of course it had, because a great many people want a Bill. But does he really imagine that that great majority implied an agreement to an unamended Bill? I have not voted against the Second Reading of any of these Abortion Bills, but if I had thought that the Bill was going through the House as it now stands I should certainly have voted against the Second Reading. Really, the majority on Second Reading cannot be used as an argument against any Amendment.
VISCOUNT BARRINGTON: May I ask the noble Lord, Lord Stonham, whether there is not in fact a precedent for the Government temporarily accepting an Amendment which is regarded by the Minister as unsatisfactory in the extract which I quoted from the proceedings before the Standing Committee in another place? There, an Amendment concerning the health and wellbeing of the mother was admitted by the Minister to be quite unsatisfactory; and the argument, as I understood it—and I quoted it, I think, during the Second Reading debate—was that it should go through and then be redrafted for Report stage.
Would that not be the better solution here? Because I believe that there is a large number of noble Lords in this Committee who want to get something down, as the noble Viscount, Lord Dilhorne, very fairly said. He quoted, I think, the Amendment, which I believe was lost by one vote only, moved by the honourable Member for Pontypool. Whatever that Amendment was—and I am no technician on this matter—I believe one of these Amendments ought to be voted on and then, if necessary, altered at Report stage. I am sorry to speak at this stage of the proceedings, but I feel very strongly on it.
VISCOUNT DILHORNE: Could we not divide now, if I may suggest it? I rise only to say that if the noble Baroness is not going to press her Amendment, then I shall press mine; but if she presses hers, I shall support her on it.
BARONESS SUMMERSKILL: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
VISCOUNT DILHORNE VISCOUNT DILHORNE: I beg to move Amendment No. 2.
Amendment moved—
Page 1, line 8, after second ("practitioner") insert ("one of whom is employed under the National Health Service as a consultant or is approved by the Minister of Health or the Secretary of State for the purpose").—(Viscount Dilhorne.)
3.55 p.m.
On Question, Whether the said Amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 116; Not-Contents, 67.

CONTENTS

Aberdare, L.

Champion, L.

Elliot of Harwood, Bs.

Albemarle, E.

Chichester, Bp.

Elton, L.

Ashbourne, L.

Clifford of Chudleigh, L.

Emmet of Amberley, Bs.

Atholl, D.

Clitheroe, L.

Exeter, Bp.

Auckland, L.

Cohen, L.

Ferrers, E.

Audley, Bs.

Conesford, L. [Teller.]

Ferrier, L.

Balfour of Inchrye, L.

Cork and Orrery, E.

Florey, L.

Barrington, V.

Craigavon, V.

Fortescue, E.

Berkeley, Bs.

Craigmyle, L.

Gage, V.

Boston, L.

Daventry, V.

Gainsborough, E.

Brecon, L.

Denham, L.

Goschen, V.

Brock, L.

Derwent, L.

Granville-West, L.

Brooke of Cumnor, L.

Dilhorne, V. [Teller]

Grenfell, L.

Brooke of Ystradfellte, Bs.

Douglas of Barloch, L.

Grimston of Westbury, L.

Buckton, L.

Drumalbyn, L.

Hankey, L.

Burton, L.

Dudley, L.

Hanworthy, V.

Canterbury, Abp.

Dundee, E.

Harvey of Tasburgh, L.

Carnock, L.

Durham, Bp.

Hawke, L.

Carrington, L.

Effingham, E.

Henderson, L.

Horsbrugh, Bs.

Monckton of Brenchley, V.

Sinclair, L.

Howard of Glossop, L.

Monsell, V.

Somers, L.

Howe, E.

Morris of Kenwood, L.

Southwark, Bp.

Hurcomb, L.

Mowbray and Stourton, L.

Stamp, L.

Hylton-Foster, Bs.

Napier and Ettrick, L.

Strange, L.

Iddesleigh, E.

Nugent of Guildford, L.

Strange of Knokin, Bs.

Inchyra, L.

Pargiter, L.

Thurlow, L.

Jellicoe, E.

Parker of Waddington, L.

Vaux of Harrowden, L.

Kennet, L.

Perth, E.

Vivian, L.

Limerick, E.

Rhodes, L.

Wakefield, Bp.

Long, V.

Robertson of Oakridge, L.

Wakefield of Kendal, L.

Longford, E. (Lord Privy Seal.)

St. Helens, L.

Walston, L.

Lothian, M.

St. Just, L.

Waverley, V.

Lucas of Chilworth, L.

St. Oswald, L.

Wedgwood, L.

Lytton, E.

Salisbury, M.

Wells-Pestell, L.

Mar, E.

Saltoun, L.

Westwood, L.

Massereene and Ferrard, V.

Sandford, L.

Wolverton, L.

Merrivale, L.

Sandys, L.

Wootton of Abinger, Bs.

Middleton, L.

Segal, L.

Ypres, E.

Mills, V.

Sempill, Ly.

NOT-CONTENTS

Addison, V.

Grantchester, L.

Platt, L.

Ailwyn, L.

Greenway, L.

Plummer, Bs.

Airedale, L.

Gridley, L.

Ponsonby of Shulbrede, L.

Amherst, E.

Henley, L.

Raglan, L.

Amulree, L.

Hilton of Upton, L.

Rea, L.

Annan, L.

Hughes, L.

Rowley, L.

Archibald, L.

Jessel, L.

St. Davids, V.

Beswick, L.

Kirkwood, L.

Samuel, V.

Blyton, L. [Teller.]

Lambert, V.

Silkin, L.

Bowles, L.

Latham, L.

Simonds, V.

Brockway, L.

Leatherland, L.

Snow, L.

Buckinghamshire, E.

Lindgren, L.

Soper, L.

Burden, L.

Listowel, E.

Sorensen, L.

Byers, L.

McCorquodale of Newton, L.

Stocks, Bs.

Chorley, L.

Maelor, L. [Teller.]

Stonham, L.

Citrine, L.

Mitchison, L.

Stow Hill, L.

Collison, L.

Morrison, L.

Strabolgi, L.

Cranbrook, E.

Moyle, L.

Strathcarron, L.

Darwen, L.

Moyne, L.

Summerskill, Bs.

Dinevor, L.

Moynihan, L.

Teynham, L.

Faringdon, L.

Noel-Buxton, L.

Vernon, L.

Gaitskell, Bs.

Ogmore, L.

Wade, L.

Gardiner, L. (Lord Chancellor.)

Resolved in the affirmative, and Amendment agreed to accordingly.
House resumed.

RACE RELATIONS
4.4 p.m.
LORD STONHAM: My Lords, with your Lordships' permission I should like to repeat a Statement which my right honourable friend the Home Secretary has made in another place to-day. I will use his own words:
"In reply to a number of Questions on 27th April I said that the Government were studying the first report of the Race Relations Board, the P.E.P. report on racial discrimination and
968
other available evidence and would consider the need for and the practicability of strengthening the Race Relations Act and the administrative machinery.
"Our preliminary studies are now complete. Good race relations must of course substantially depend upon voluntary effort and a good climate of public opinion. But our conclusion is that these by themselves are not enough. Further legislation is therefore necessary.
"The Government have decided in principle that the Race Relations Act should be extended to deal with discrimination on grounds of colour, race or ethnic or national origins in employment, housing, insurance and credit facilities. In addition public

969
places will be given a wider definition than under the present Act. Details of the necessary amending legislation will now be worked out in consultation with those concerned, including the T.U.C., the C.B.I. and the nationalised industries. We propose that, in relation to employment, the new legislation should provide the fullest possible opportunity for industry to use its own machinery for conciliation.
"I believe that legislation on these lines will strengthen the position of all those who are anxious to co-operate in removing racial discrimination from our national life and will provide a necessary ultimate sanction against the few who are determined not to do so."
LORD BROOKE OF CUMNOR: My Lords, I should like to thank the noble Lord for repeating that important Statement by the Home Secretary. Will he accept that many of us may wish to reserve our further views on it until we see the detailed proposals in legislative form? Is the noble Lord aware that all your Lordships are determined not to allow racial hatred to rear its horrible head in this country? Is he aware that we all are ready to welcome any practical plans for better conciliation or reconciliation? Is he further aware that not by any means all people are convinced that new criminal sanctions will, in the long run, improve race relations or conduce to a good climate of public opinion and these, as the Statement itself accepts, are the essential aims of policy and, I would say, of humanity.
LORD WADE: My Lords, on behalf of those on the Liberal Benches, may I thank the noble Lord for repeating this Statement. The Government are to be congratulated on the decision to strengthen the Race Relations Act, particularly in the light of the Report of the Race Relations Board. Can the noble Lord give an assurance that the details of the proposed legislation will be worked out with a sense of urgency, as there is considerable evidence to suggest that time is not on our side in this matter?
LORD STONHAM: My Lords, I am grateful to the noble Lord, Lord Brooke of Cumnor, and to the noble Lord, Lord Wade, for the welcome they have given to the Statement and particularly to the
970
noble Lord, Lord Brooke of Cumnor, for the declaration he has made on points of principle. We welcome the sentiments he has expressed. I think his main point was that not all people are convinced that criminal sanctions will improve race relations. That is something the Government will accept, and we shall go to the limit with conciliation in all fields. But our investigations and consultations convince us that present legislation is not enough, and that ultimately there must be other sanctions to deal with the few who will not comply with the normal laws of decent conduct which most people wish to observe.
With regard to the request of the noble Lord, Lord Wade, for an assurance that details will be worked out as quickly as possible, it will not surprise him to know that we have been engaged on this for a long time and that already we have had a great many consultations. Certainly the work is being pressed forward, but particularly in view of what the noble Lord, Lord Brooke of Cumnor, said, we will await the details and there will be an opportunity for discussion of the details when the legislation is published. We must do our utmost to ensure not only that there is the fullest possible consultation, but that what we eventually put forward is not just something on paper but something that will work.
LORD BROCKWAY: My Lords, may I ask my noble friend whether he is aware that many of us who have been associated for many years in urging legislation of this character welcome very much the Statement which he has made? I do not want to appear trifling and therefore I will ask only two questions—I do not wish to appear trifling because I am so enthusiastic about what is being done. My two questions are these. First, how long does he think that this examination will have to take—the discussions with the T.U.C., the C.B.I. and others—and is my noble friend aware that there is now an intense urgency on this issue, because the terrible psychology which has now been aroused in America is infectious and epidemic and may build on conditions here? My second question is this. Although the Bill deals with racial discrimination, would the Government consider, when they are discussing the amending Bill, extending it to religious discrimination as well; because

971
the evidence is fairly widespread that discrimination takes place not only on racial grounds but also on religious grounds?
LORD STONHAM: My Lords, with regard to my noble friend's first question, about how long the examination will take, I would say that the examination has been going on for many months, and my right honourable friend is very conscious of the need for urgent action. The examination will continue no longer than is strictly necessary to produce a viable and workable measure, but I cannot be committed any further than that. With regard to the question of extending it to religion, my Lords, the answer is, "No". We do not intend to include religion in any new legislation. Religious belief, I think we would all agree, is a matter of conscious choice; race or national origin is not a matter of choice.
LORD ELTON: My Lords, I hope that the noble Lord, Lord Stonham, and the Government will not accept from the noble Lord, Lord Brockway, one of his arguments, to the effect that one reason for urgency for providing this legislation is the example of the terrible things now happening in America. I think that anyone who is in close touch with the situation realises that our circumstances here, the different nature of the immigration and so forth, are such that nothing of that kind is likely here in the foreseeable future.
LORD STONHAM: My Lords, the Government have had this matter under consideration for some time. Action, when it is taken, will be taken because it is necessary, and we shall take such action as we consider is necessary. There is no vestige of panic about anything we are doing.
LORD BROCKWAY: My Lords, I am sorry to have to ask a further question, but when my noble friend says that religion, because it is a matter of individual conscience, does not come within the scope of the Bill, is he aware that many of us agree with him in the case of incitement? But if to be a Catholic or a Jew is to be denied a house or denied employment, why should that discrimination not be included with other discriminations on grounds of race?
LORD STONHAM: My Lords, I really cannot accept that that is so, but I think it would be much better if my noble friend awaited the proposals which we shall eventually bring forward in regard to discrimination in housing and in other matters.

THE EUROPEAN AIRBUS PROJECT
4.15 p.m.
LORD BESWICK: My Lords, with permission, I should like to repeat a statement made in another place on the European airbus project. Agreement was reached to proceed immediately with the first stage of the joint development of a European short-medium range airbus. A Memorandum of Understanding, the principles of which were agreed, will be signed by September 15, 1967. I am happy to say that the aircraft will be powered by Rolls Royce engines, and work on them will be undertaken jointly by Rolls Royce, S.N.E.C.M.A. in France and M.A.N. in Germany. The aircraft will be designed jointly by Sud Aviation, Hawker Siddeley Aviation and the Arbeitsgemeinchaft Airbus. Sud Aviation will direct the airframe work and Rolls Royce will direct the engine work. A joint company will be formed to promote sales of the aircraft. It was agreed that the full development stage—in about 12 months' time—should proceed, provided that certain conditions, including national airline commitments which will finally establish the viability of the project, are met.
EARL JELLICOE: My Lords, I am grateful to the noble Lord for repeating the Statement, but I must say that there is rather less in it than we could all read this morning over breakfast in the newspapers. I strongly favour collaboration with Europe in advanced technological projects of this nature, but we all know the difficulties, and therefore we must be absolutely certain at the outset that the particular project is viable, especially if it is a very costly one. I hope that the noble Lord can give us this assurance. And can he tell us something about the size of the prospective market for this aircraft? Can he tell us what the present estimate of the research development costs is and how those costs

973
are to be split between the three partners? Finally, can he tell us that the national airlines of the three countries concerned really want, and will take, a substantial number of the aircraft?
LORD BESWICK: Yes, my Lords, the market is indeed a valuable one. It is estimated that, as between the three participating countries, the aircraft required will be of the order of 90 to 100, with a further 200 in other countries outside the United States and the Communist bloc, giving a total of some 300 which, with spares, would mean a value of work approaching £2,400 million, of which between £800 million and £900 million would be this country's share for work carried out. The cost will be shared as between the airframe and the engine in different proportions. In the case of the engine we should accept 75 per cent., France 12½ per cent. and Germany 12½ per cent. In the case of the airframe the figures are: United Kingdom 37½ per cent., France 37½ per cent. and Germany 25 per cent. Regarding engine launching costs, it is estimated that these will be of the order of £60 million, and the total development and tooling costs of the airframe will be £130 million.
EARL JELLICOE: My Lords, can the noble Lord tell us anything about whether the airlines really will take this aircraft in this country?
LORD BESWICK: My Lords, obviously I cannot as yet, and, equally obviously, it would be unfair to ask them to make a definite commitment until the first stage has been completed; because until the first stage is completed the airlines are not in a position to say whether it fulfils their requirements.
EARL AMHERST: My Lords, may I ask whether the noble Lord has any indication when the airbus will be available for commercial operation, if there is any estimate about that? Further, can he confirm a report recently put in the papers that as B.E.A. will not be able to purchase the aircraft it wishes in the interim, but will have to wait for the delivery of the airbus, it is to receive compensation for any losses which may accrue?
LORD BESWICK: My Lords, it is expected that the first stage will be completed within twelve months. After that
974
it will be a matter of deciding whether to go forward, and then we can make another estimate as to the time scale. I can give the noble Lord no answer about the possibility of subsidising B.E.A., nor indeed do I think it would be fruitful to discuss this matter until we decide exactly what kind of machine is contemplated and what the operating economics would be.
LORD CONESFORD: My Lords, have the Government any knowledge of how much noise this aeroplane will make?
LORD BESWICK: My Lords, I can assure the noble Lord that this plane is not expected to go through the sound barrier. It is expected, with these Rolls Royce engines, to have a low level of noise. The general aim of the airbus project is to provide a more economical vehicle for passengers who otherwise would probably not be able to travel by air.
LORD CONESFORD: My Lords, is the Minister aware that the aeroplanes which are the greatest nuisance at the moment over South-West London also do not break the sound barrier?

UNIVERSITY ACCOUNTABILITY
4.20 p.m.
THE EARL OF LONGFORD: My Lords, with the permission of the House, I should like now to repeat a Statement about the recommendations of the Special Report of the Public Accounts Committee on "Parliament and Control of University Expenditure" which has just been made by my right honourable friend the Secretary of State for Education and Science in another place. It is as follows:
"As the House will recall, the Committee unanimously recommended that the Comptroller and Auditor General should be given access to the books and records of the University Grants Committee and the universities.
"The Government accept this recommendation. They share the view of the Committee that this large item of Government expenditure, which has risen over the last twenty years from £4 million per annum to well over £200 million can no longer continue to be the sole major exception to the

975
normal requirements of Parliament regarding scrutiny and report by the Comptroller and Auditor General. Accordingly I shall make it, from January 1, 1968, a condition of grant to universities that their books and records in respect of grant should be open to the inspection of the Comptroller and Auditor General. The same will apply to the books and records of the University Grants Committee. The Accounting Officer arrangements will remain as at present.
"The Government do not propose to alter the present well-tried and flexible arrangements for financing universities by the capital grants and block recurrent grants made available and distributed on the advice of an independent University Grants Committee. We shall therefore preserve the present system by which block grants are allocated to universities by the U.G.C. with the consequent freedom of discretion on the part of universities as to how they should be spent. It is no part of the Comptroller and Auditor General's duty to question policy decisions or decisions reached on academic grounds. His function is to comment and advise on the propriety, regularity and efficiency with which monies voted by Parliament are administered by those to whom they are entrusted.
"The P.A.C. recommended that steps should be taken, in consultation with the universities, to devise suitable procedural conventions and to explain to the universities what would be involved. Besides having the advice of the University Grants Committee, I have already had consultations with the Committee of Vice-Chancellors and Principals and the Association of University Teachers. Further steps will now be taken to carry out this recommendation.
"The existence of an independent check on how the universities spend public money should serve to reassure Parliament and the public. It need not infringe the academic freedom of the universities. It does not denote any lack of confidence in the existing system whereby the University Grants Committee stands as a 'buffer' between the Government and the universities. It was in this spirit that the P.A.C.
976
made its recommendations. It is in this spirit that the Government accept them."
My Lords, that is the end of the Statement.
LORD ABERDARE: My Lords, the whole House will be grateful to the noble Earl the Leader of the House for repeating this important Statement on university accountability. We should all wish to consider it at much greater length, particularly in detail, when the matter has been worked out as a result of further consideration. All Parties in this country have been proud hitherto of the system that has evolved, of capital grants and recurrent block grants to universities, on the advice of the University Grants Committee, and all of us much admire the work that has been done by that Committee.
It would be disastrous if, as a result of this action, there were to spring up at universities a host of accountants who would be looking over the shoulders of university teachers and inhibiting their freedom of action. I am sure that all of us are jealous of the independence that the universities have hitherto enjoyed and would wish to see it preserved so far as possible. On the other hand, as the noble Earl has pointed out, a great deal of public money is involved and no doubt it is right that this should be subjected to a measure of supervision. But I would suggest that when a line is drawn, it is drawn with every sympathy for the universities and so as to allow every possible freedom to them.
I would ask the noble Earl one question, if I may. The Statement mentioned that consultations have already been held with the Committee of Vice-Chancellors and Principals and with the Association of University Teachers. May I ask what was the outcome of these consultations and what was the attitude of the Committee and the Association to this proposal?
LORD BYERS: My Lords, of course there can be no objection in principle to scrutiny on the part of Parliament of expenditure of this amount. If I heard the noble Earl correctly, he referred to the Comptroller and Auditor General advising on the propriety with which monies are administered. May I take it that there is no intention of curbing the

977
freedom of universities to make their own policy decisions and that what is sought is to get value for money within the decisions which are taken by the universities themselves?
THE EARL OF LONGFORD: My Lords, may I thank both noble Lords for their comments and say that the noble Lord, Lord Byers, summed up the object of these developments admirably, even better than I could have done. I agree with him and with the noble Lord, Lord Aberdare, that it is essential that the full independence of the universities should be maintained. As many noble Lords know, I have been a university teacher, and so has the present Secretary of State for Education, and I think your Lordships may be assured that the full independence of the universities is as dear to the present Government as it would be to any Government in this country.
LORD BUTLER OF SAFFRON WALDEN: My Lords, are we to understand from the noble Earl that in future the grants made to the various universities by the University Grants Committee will not come under the control of the Comptroller and Auditor General? In the second place, I should like to thank the noble Earl for the spirit in which he has made this Statement, although I think he knows perfectly well that I gave evidence against this proposal before the Public Accounts Committee. If it can be interpreted in the spirit in which the noble Earl announced it, at least it will be better than we had hoped.
THE EARL OF LONGFORD: My Lords, I feel that these observations, coming from a noble Lord who has risen much higher than I in both the political and the academic worlds, are particularly acceptable. The phrase I used in the Statement says simply that
"the Comptroller and Auditor General should be given access to the books and records of the University Grants Committee and the universities."
Further on the Statement says that the Secretary of State,
"shall make it … a condition of grant to universities that their books and records in respect of grant should be open to the inspection of the Comptroller and Auditor General. The same will apply to the books and records of the University Grants Committee."
978
That is the Statement, but I should emphasise that the procedures which will be worked out will be executed in collaboration with the universities. That will be regarded as an important point in the exercise. Once again I repeat my gratitude to all noble Lords, and particularly to the noble Lord, Lord Butler of Saffron Walden.
LORD CHORLEY: My Lords, I think that my noble friend overlooked the fact that the noble Lord, Lord Aberdare, the spokesman for the Conservative Opposition, asked him a question, which he did not answer, about the reactions of the Vice-Chancellors' Committee and of the Association of University Teachers to this proposal. It ought to be made clear to your Lordships that the Universities are very worried about this and that the Committee of Vice-Chancellors and Principals and the University Teachers' Association, which speaks for the vast majority of university teachers, are very much afraid that the inevitable result of this will be some curtailment of the independence of British universities, which has been one of our proudest heritages.
THE EARL OF LONGFORD: My Lords, I am sorry that I did not answer the question put to me. It is not usual on these occasions, as noble Lords and former Ministers are aware, to disclose the advice which is given by the university bodies concerned. Therefore, I do not feel at liberty to say what they are now saying, or what I believe them to be saying, to the Government. In fact, certain evidence was given on behalf of the universities which has been published, and that is within the knowledge of the House. As regards the university bodies of whose views I am informed, I think it would be wrong to say that they are refusing to acquiesce or, indeed, are actively opposing this.
LORD LEATHERLAND: My Lords, may I first of all announce that I have an interest in this matter as the treasurer and finance committee chairman of one of the new universities. Can my noble friend tell me how he reconciles two expressions that he used: first, that the universities will retain full independence; and, secondly, that the propriety of any expenditure that they incur will be subject to comment by the Auditor General. Does he not feel that the whole effect

979
of this will inhibit universities, and particularly the academic bodies, from embarking on projects which involve some courage and boldness, but at the same time involve some risk?
THE EARL OF LONGFORD: My Lords, I really do beg noble Lords to dispel these fears. When I was a university tutor, which I was for a good many years, the only fear we had of the Government was that they would send an inspector who would find out what we were doing with the money. There is no question of that under these proposals. I do not think that any university tutors, if there be any in the House, need be worried about that possibility. There is no danger to academic freedom in this. If noble Lords do not want to take it from me particularly, let them look at the names of those on the Public Accounts Committee, among whom Mr. Boyd-Carpenter, an old Treasury Minister of the Conservative Party, is perhaps the best known. I do not think that we need fear any sort of creeping socialism about this, or any threat to academic freedom of any kind.
LORD WYNNE-JONES: My Lords, I think my noble friend the Leader of the House misunderstands the nature of the criticism on behalf of universities of this sort of control. It is not the fear that a single tutor in a university may be directed as to how he is to do his teaching. It is rather that the overall policy of the university may be affected: in other words, the way in which a university may look forward to its development in the future. This, I think, is a much more serious matter, and I do not think my noble friend dealt with this.
THE EARL OF LONGFORD: My Lords, I realise that no words of mine are going to dispel in a few magical moments any academic fears. I should like to repeat something I have already said, and to say one other thing that perhaps I should have said. I repeat that this official, the Comptroller and Auditor General, will have no say in policy. I have said that once, but I say it again. Therefore, if noble Lords will look at this Statement closely, they will see that policy cannot be affected, whether high policy or small policy.
There is one other point which I should perhaps make in reply to the
980
noble Lord, Lord Leatherland, who asked me whether independence was really going to be possible at all once the Comptroller and Auditor General was allowed to look into the way this money is spent. The universities have hitherto been an exception. When grants-in-aid represent the major source of economy of an organisation, this is an automatic procedure. As I say, the universities have hitherto been an exception. No one can seriously argue that all the other bodies that have been inspected in this way have had their freedom interfered with. The universities have enjoyed a special privilege in the past, but this all-Party body of Members of Parliament, bearing in mind this tremendous increase of £4 million to £200 million in the taxpayers' money that goes to universities, and the fact that 70 per cent. of the current expenditure and 90 per cent. of the capital expenditure comes from the taxpayer, has come to the conclusion that this change must be made.
LORD ANNAN: My Lords, is my noble friend the Leader of the House aware that, while it is true that the majority of Vice-Chancellors and Principals, and the A.U.T., are probably opposed to and have given evidence against this, nevertheless there is a minority that has always understood that this was on the cards, and that probably in the course of time, owing to increased expenditure, it was bound to come. I think that some of us, while regarding it not with enthusiasm, feel very much like Gibbon did when as a young man he was forbidden by his father to marry, and he said:
"I sighed as a lover, but I obeyed as a son."
We in the universities shall, of course, obey, and do all we can to co-operate. But we sigh, because it will inevitably mean that we shall have to have some extra finance officers at a time when we are hoping to make appointments for people to teach research. But so long as this is carried out in the spirit in which the Leader of the House has indicated—and the noble Lord, Lord Aberdare, has given such warm and graceful support to this Statement—and that is the spirit in which the Public Accounts Committee will operate, it may

981
be that in the course of time some of the fears will be allayed.
THE EARL OF LONGFORD: My Lords, I am grateful to the noble Lord, who speaks with such high authority on academic matters. His reference to Gibbon conjures up a small classical tag, one of the few left to me, and I simply say to him: O! si sic omnia.

MEDICAL TERMINATION OF PREGNANCY BILL
4.36 p.m.
House again in Committee.
LORD SEGAL LORD SEGAL moved, in subsection (1)(a)(i), after "involve", to insert "serious". The noble Lord said: With the permission of the Committee and in order to save time, because I feel that a great many of your Lordships are anxious to get on to Amendment No. 7 at the top of page 2, I should like to be allowed to combine Amendment No. 4 with Amendment No. 6; and if the noble Baroness, Lady Wootton of Abinger, agrees it might be the will of the Committee that Amendment No. 5 should also be included.
As doubtless all your Lordships will be aware, the insertion of these two qualifying words has been the subject of long and exhaustive debates in another place, but I hope that in this instance my noble friend Lord Silkin will agree with me that these two words did find a place in both of his Abortion Bills which were passed through all the stages in this House. If this Committee does not insert the word "serious" before "risk to life", if it does not insert the word "grave"—which is merely a paraphrase of the word "serious" before "injury", what we are then sanctioning is that any doctor will be fully entitled legally to terminate a pregnancy where only a very slight risk to life may be involved and where only slight injury may be done to the physical and mental health of the pregnant woman.
I do not wish to detain the Committee very long at this stage, but among the slight risks to the life of the pregnant woman one would mention the risk of death to the mother by giving an
982
anaesthetic during childbirth. It is a risk which is certainly present in childbirth, but, fortunately, it is very slight. But is it the will of the Committee that the possibility that the mother may need an anaesthetic during the course of labour should justify a doctor to terminate a pregnancy? There is also a risk of hæmorrhage and septicæmia following upon childbirth. As my noble friend Lady Summerskill has so often reminded your Lordships, there is a risk to the life of the pregnant woman if she has been taking a contraceptive pill during the period before her pregnancy. These are risks, fortunately very slight, but nevertheless risks of which we must be made aware.
Similarly, with the slight risk of injury. Here my noble friend Lady Wootton of Abinger desires to insert the word "prolonged" before the words "injury to the physical or mental health of the pregnant woman". An injury may be prolonged, but nevertheless it may be only a slight injury that is prolonged. Many of us, as we see by the plaster casts one or two noble Lords opposite have been wearing recently, have suffered prolonged injuries, though, fortunately—I hope I am right in saying this—slight injuries. Nevertheless, they have been able to give their full attention to the work of the House. That is one of the slight risks that may be involved; and, if I may say so, a risk of slight injury probably occurs in the majority of confinements.
There is the risk, as we all know, of perineal lacerations. There is a type of injury inflicted by the doctor known as episiotomy, when lacerations are deliberately made to facilitate the birth of the child. But noble Lords may say that although the risks to the physical and mental health may be slight, these slight risks may not affect the actual health of the pregnant woman. Here, I would venture to ask this. When we say they may not affect the health of the pregnant woman, are we referring to her existing state of health, or her subsequent state of health? Noble Lords will note that in line 16, where environment is dealt with—this is in the actual text of the Bill we are asked to pass—another place has taken great care to qualify that by saying,
"account may be taken of the patient's total environment actual or reasonably foreseeable".

983
Are we then to apply the same qualification to the word "health"—the actual health, or the reasonably foreseeable health, of the mother?
What I wish to point out is this. Although all of us—I think in all quarters of the House—are anxious to see this Bill passed, I feel we have a duty, where we realise the wording of the Bill can be improved, so to improve it. And I would submit, very respectfully, to those who have given hours and hours of thought to the wording of the Bill as we have it now before us, that the insertion of these two words, "serious" and "grave"—"serious" risk to the life of the pregnant woman, and "grave" injury to the physical or mental health of the pregnant woman—do in themselves constitute an improvement in the wording of the Bill. I think it does not absolve this House to allow any other considerations to come into its way if it feels that the insertion of these qualifying words is necessary. With those few remarks, although there are a great many others one would possibly be able to make, I beg to move Amendment No. 4.
Amendment moved—
Page 1, line 11, at beginning insert "serious".—(Lord Segal.)
BARONESS STOCKS: I suggest that these Amendments are unnecessary. They introduce a complication into the Bill and impose on those concerned an interpretation of words which cannot be precisely interpreted. Any risk is grave. You never know whether an injury is likely to be prolonged or not. I suggest that these Amendments be rejected.
BARONESS WOOTTON OF ABINGER: I am not very happy with the Bill as it stands at present. It says:
"… continuance of the pregnancy would involve risk to the life of the pregnant woman …".
I suppose that, if we are going to be very literal minded, any pregnancy involves a minute risk to the life of the pregnant woman; and I think it is therefore very desirable to insert the word "serious" before "risk". On that ground I welcome the noble Lord's Amendment. What I should like to do is to effect a marriage between his Amendment and my own, so that the Bill would read:
984
"… serious risk to the life of the pregnant woman or of grave and prolonged injury to the physical or mental health …".
The reason why I want to put in "prolonged", as well as "grave", is this. It is not an uncommon experience for a woman to suffer a very severe temporary depression at a certain stage in pregnancy—and it is only temporary. It would count as a serious injury to her mental health for the time being, but it might be for a matter of only a few days, and it might be disastrous if an abortion were performed in that time, since when the child is born all this will be a matter of the past and she will be delighted to have it.
4.47 p.m.
VISCOUNT DILHORNE: I should like to support the noble Lord, Lord Segal, in his proposal and the noble Baroness, Lady Wootton of Abinger. We are, after all, dealing, as my noble friend behind me has said, with an Amendment of the criminal law. I have always taken it to be the case that it really was implicit in subsection (1)(a) that the risk should be serious; that the injury would have to be grave and not trivial—and, indeed, prolonged. But if there be any likelihood of any misconception about that, I think the Bill—and this is a matter of drafting—would be improved by the inclusion of these words.
While it is perfectly true that it is impossible to give a precise definition of what is a "grave" risk, what is a "serious" risk, and what constitutes "prolonged", we are here, after all, giving guidance to the medical profession; and if we inserted these words we should be saying that, if the doctors are of the opinion that there is a grave risk of a serious and prolonged injury, they can perform the operation lawfully. I think it would improve this Bill to have those words interpolated.
I cannot think myself there will ever be a prosecution—because I do not think the evidence would be available—of a doctor on the ground that he has not formed his opinion in good faith. But I suppose it is just conceivable that you might be able to establish, if you had these words in, that he had formed the opinion that there was only a trivial risk, and, under the clause as it now stands, he thought he could lawfully perform the

985
operation. I hope that the noble Lord, Lord Silkin, if he is not prepared to accept these Amendments now, will at least say he will give serious consideration to them between now and the Report stage, because in my belief they do no more than say expressly what I always thought was implicit in paragraph (a).
LORD AMULREE: I should like to say a word in support of what the noble Baroness, Lady Stocks, has said. I think that these Amendments are quite unnecessary and that they will do harm to the Bill. I believe words of this nature were in the Bill at one stage, and they were taken out. In matters of this sort, I feel that it is for the medical people in charge of the patient to decide. I do not really think you can make a proper definition of what is "prolonged", "grave" or "serious". I hope very much that the noble Lord, Lord Silkin, will not accept these Amendments.
BARONESS GAITSKELL: I should like to oppose this Amendment, and I want to support my noble friend Lady Stocks, and to oppose, very sadly, my noble friend Lady Wootton of Abinger. In the first place, there is the point about depression. Most women after pregnancy have a depression. It does not last a few days; it most often lasts six or seven weeks. It may not occur at all, but it is very common. Some women have very serious depressions. They become psychotic, and I myself have known of several suicides by women after a pregnancy or after they have had a child.
I should like to know one thing. No one has come forward and compared the risks, first, of pregnancy, second, of having children and, third, of having abortions. I believe that the risks of having a child are as great as the risks of having an abortion, and although I am not a doctor I certainly think that the risks of having a child are far greater than the risk of having an abortion under proper conditions, such as I believe this Bill empowers.
LORD COHEN: I have very little to say, and in fact I only want to support what the noble Baroness has said. I am induced to do so even more because in Clause 1(1)(b) the word "substantial" is put before the word "risk", which
986
seems to me to make it all the more necessary to put in the adjective which the noble Lord, Lord Segal, desires to see inserted in subsection (1)(a).
LORD PARKER OF WADDINGTON: I should like to support this Amendment strongly, though I must declare an interest as being one of the unfortunate people who have to administer the criminal law. Unfortunately, those who have to administer the criminal law have to interpret a Statute, and they cannot look at Hansard in order to see what no doubt is the opinion of everybody in both Houses; namely, that what is intended here is a "serious" risk and not any risk, and a "real" injury and not merely a slight injury. I implore the House to vote for this Amendment so that those who administer the criminal law can direct a jury on what I am sure we are all agreed; namely, that it is not intended that it should be just any risk or a slight injury.
LORD BYERS: Before the noble and learned Lord sits down, would he, from his judicial experience, give the definition of a "serious risk", because many of us feel this is far too narrow a way to deal with an important measure of this sort. I have taken the view that it would be quite impossible to say what is a serious risk. The noble Lord, Lord Segal, has told us his interpretation of a "slight risk", but I should like to hear the noble Lord, Lord Parker of Waddington's, definition of a "serious risk".
LORD PARKER OF WADDINGTON: I quite agree that it is difficult to get a suitable form of words. Some people prefer "substantial" and others "serious". At the other end of the scale we have "more likely than not". I imagine we do not mean "any risk"; I imagine we do not mean "more likely than not", but something between the two.
LORD BYERS: May I press the noble Lord on this point? Does not what he has said mean that we are trying to legislate now for complete confusion in the law, instead of trying to clarify the issue?
BARONESS SUMMERSKILL: I hope your Lordships will reject this Amendment because I think it is most harmful. Who can define what is a "trivial injury"

987
to a woman? Are we saying that, after this experience of childbirth, which is not only physically painful but also is a strain on the whole of her mental processes, a woman can sit back for a long time and rest? To-day, within a very short time of having a child, a woman has to do the housework, the washing, and the caring for the other children. In fact, the housewife to-day is exposed to great physical strain, whether she has had a baby or not. It is one of the most arduous tasks in the country, and we are being asked today to expect some doctor to define what will be "trivial". Doctors throughout the country will differ on this, and the only person who will suffer is the poor woman. I ask your Lordships not to confuse this Bill by introducing a word that is utterly ambiguous.
LORD CHORLEY: May I, as a lawyer, rather cross swords with what has been said by much more distinguished lawyers? It is not the doctors who will be asked to say what is "trivial"; it is a matter which will be left to the jury, and surely it is much better that the jury should judge of the doctor's honesty in the witness-box than to try to juggle with expressions such as "serious", and so on. There is a great deal in what has been said about this leading to the confusion of the jury, rather than giving them a clear guide as to how they are to decide the case. This is a matter on which, to use a schoolboy phrase, we lawyers are apt to teach our medical brethren "how to suck eggs", which I think is a great mistake.
BARONESS WOOTTON OF ABINGER: I am puzzled by what has been said by both my noble friends Lady Summerskill and Lady Gaitskell. It seemed to be the argument of Lady Gaitskell that it was far more dangerous to have a child than it was to have the pregnancy terminated, which seems to be an argument for terminating all pregnancies, because that would be the lesser risk. According to Lady Summerskill, one of the great risks of having a child is that the woman has to do the housework afterwards (which is indeed true), and that also seems to be an argument for terminating a pregnancy. I know that these are frivolous observations, but I think there is a more substantial argument behind them. That
988
argument is this: that a door which is opened by this Bill—and let me say at once that I want that door to be open—is being gently pushed wider and wider open.
VISCOUNT WAVERLEY: May I say, for the guidance of the Committee, in connection with the question raised by the noble Baroness, Lady Gaitskell, about the relative risks of having a baby and having an abortion, that in fact the Registrar General's figures for 1964 show that abortions carry a four-fold risk as compared with pregnancy.
BARONESS GAITSKELL: May I ask whether those abortions were done under proper medical supervision? I know that the risks of back-street abortions are much more dangerous than having a child; but, after all, there are far fewer abortions that take place under proper medical supervision. Are those risks as great as the risks of having the child?
VISCOUNT WAVERLEY: I am sure that these figures must include backstreet abortions which, for one reason or another, have to come into hospital.
BARONESS GAITSKELL: I thank the noble Viscount.
LORD STONHAM: I think we are all agreed that the judges on the Bench have to decide whether a risk is "grave" or "serious", but the doctor has to decide long before that, and in this matter it should be the doctor who is considered before the learned judge, although the pregnant woman must always be considered first. In his speech, the noble and learned Viscount, Lord Dilhorne, said that we are giving guidance to the medical profession, and he advised my noble friend Lord Segal to press his Amendment. In giving that advice the noble and learned Viscount was rejecting the advice of the medical profession.
VISCOUNT DILHORNE: May I intervene for a moment?
LORD STONHAM: As soon as I make a statement there is an immediate movement to interrupt. But let me prove my point. The British Medical Association and the Royal College of Obstetricians and Gynæcologists have said the requirements that the risk must be "serious" and the injury to health "grave" are

989
capable of raising considerable difficulties in practice. They may mean that terminations carried out on certain medical indications which are accepted in current medical practice would become questionable in future.
My noble friend Lord Silkin, in his Bill, and Mr. Steel, in his Bill, introduced into the Commons, both had these words in the Bill, and it was because of the strong representations of the responsible medical bodies, and because of the difficulties which they foresaw would be created, that those words were taken out in another place.
VISCOUNT DILHORNE: Does the noble Lord agree that, as the Bill now stands, if two doctors form the opinion that there is a very slight risk they will still be able to terminate the pregnancy? And, if that is so, ought not some words to be inserted to make the intent behind this a little clearer to the medical profession?
LORD STONHAM: No. If two doctors were of opinion that there was a very slight risk and they performed an abortion it would be a criminal abortion.
VISCOUNT DILHORNE: Why?
LORD STONHAM: Because they would not be acting in good faith. This Bill has to be considered as a whole, and it is when two registered medical practitioners acting in good faith are of this opinion.
5.0 p.m.
LORD PARKER OF WADDINGTON: May I ask the noble Lord a question? Does he appreciate that in most of these cases, I imagine, there will be no question at all about the good faith of the medical practitioners. The point will be, have they applied their minds to the right criterion? And I am still, I confess, thoroughly confused as to whether they are to apply their minds honestly in good faith to the question of whether there is any risk and any injury, or whether we really intend them to apply their minds to something else.
LORD STONHAM: Irrespective of whether the risks involved in abortion are greater than the risks involved in pregnancy, I would say that of course there are risks involved in pregnancy. My noble friend described them as slight risks. I would not go as far as that:
990
I am not disputing the point. What I would ask the noble and learned Lord, the Lord Chief Justice, and the noble and learned Viscount, Lord Dilhorne, to apply their minds to is the fact that the representatives of the medical profession, whose members would have to carry out these operations, feel that it would be wrong to have these two words in the Bill; and they are going on experience. They also go so far as to say that they would make the position much narrower than it is now in Case Law under the Bourne judgment. That is the opinion of the medical profession. The noble Viscount, Lord Dilhome, said we are giving guidance to the medical profession, and I think it is only right to say what guidance they have given to us. And I hope that my noble friend Lord Segal will bear that in mind, because he is himself a member of one of those organisations.
VISCOUNT DILHORNE: May I say to the noble Lord that he ought to bear in mind that here we are drafting something which some people—of whom I am one—hope eventually to see on the Statute Book; and we are concerned about the langauge we use. The noble Lord has not answered the question I put to him. I interrupted him. He went on about bad faith and good faith. Let me put this point. Is it going to be lawful for two doctors who in good faith form the opinion that there is a slight risk to the woman to perform the operation? I would say that, reading the Bill as it now stands, the answer to that question is, Yes. I should like to know whether the Government agree. From all the debates that have taken place I should have thought it was not the intention that operations could be performed if there was any risk, however slight, in the opinion of two doctors, bona fide. That was not, I thought, the intention of this Bill; and if that is not the intention of the Bill, then words ought to be inserted to make it clear to the medical profession, and to anyone else who reads the Act of Parliament, that that is not the intention.
The noble Lord may want time to consider that point, but I would say to him, whatever may be said about the words "grave" and "serious", that if the clause is open to that interpretation, something is needed to make it clear that, for the operation to be lawful, the risk must be of a substantial character; that the

991
opinion of the doctors must be that there is a risk of a substantial character, and that without the operation an injury of a substantial kind is likely to ensue. I hope we need not spend more time on this matter, but I think there is real substance in Lord Segal's point. I hope that the Government and the noble Lord, Lord Silkin, will say that the Bill is not intended to legalise abortions where two doctors are of opinion that there is just a minimal, slight risk, and then rely on the Act and say that the operation is lawful.
LORD SILKIN: I am perfectly willing to give further consideration to the need for inserting some such words as are contained in the three Amendments we are discussing together. At the moment I am not personally convinced that any such words are necessary, but it may be that there are other words—perhaps not so strong as those set out in the Amendments—which would give an indication that we are not discussing the very slightest hazards before any kind of operation but would give the doctors a lead that they must consider that there is, a real risk. If that satisfies my noble friends who have put down these Amendments, I am perfectly prepared to give an undertaking that this will be considered.
LORD SEGAL: I feel that we have had a very useful debate on these two Amendments, but perhaps I may be allowed to make one or two comments. The noble Lord, Lord Amulree, said it should be left for medical opinion to decide. I would mention to him that on these matters all medical opinion is not agreed, and, with all deference to the representatives of the medical profession, to which I have the honour to belong, I cannot conceive that they would deliberately try to restrict the bounds within which members of their own profession are allowed to operate. This is a matter fundamentally for this Committee itself to decide.
Other points have been touched upon. Whatever the actual figures may be which the noble Viscount, Lord Waverley, has mentioned, there is absolutely no doubt whatever that a far greater risk is involved in the traumatic process of doing an abortion than in the ordinary normal process of childbirth. Of that there can be no possible doubt whatever. The risks
992
may be greater to inflict an abortion than to allow the pregnancy to continue.
LORD PLATT: I must interrupt and say that that is not so. It just is not a fact. It may be so with regard to illegal and septic abortions, but it is not a fact with the abortion properly procured.
LORD CITRINE: Would the noble Lord not agree that everything depends upon the period at which the operation takes place? Would he say it was a greater risk to perform the operation after two months of pregnancy than it is at childbirth?
LORD SEGAL: There is no doubt whatever that the earlier the abortion is performed the less is the risk, but the one is a traumatic interference in the normal physiological processes, however safe may be the conditions under which it is performed. I think we have to take it that any outside interference must involve, however carefully performed, some degree of greater risk than normal physiological processes. I am perfectly content to leave this matter to the will of the Committee, but let us realise that if we do not insert any qualification whatever to the words "risks to the life or injury to the physical and mental health" we are leaving the door wide open to any two partners who may be themselves professed medical abortionists to drive a coach and six through the provisions of this Bill. The noble Lord, Lord Byers, asked what is the definition of "serious". He might even have gone further and turned to the wording of the Bill as it stands and asked what is the definition of "risk". These are all matters we have to consider and, up to a certain point, we have to take for granted.
LORD BYERS: Is the noble Lord going to give a definition of "risk" and "grave"?
LORD SEGAL: I think that would be more correctly addressed to the sponsors of the Bill, not the mover of the Amendment. I am referring to the definition of the word "risk" which appears in the text of the Bill we are asked to approve. If it is the will of the Committee that, without any restriction or qualification except their own judgment, the professional medical abortionist is to be allowed to ride roughshod through the

993
provisions of this Bill, I am quite content to accept that view. But I personally feel that, whatever the view of the representatives of the medical profession, this House ought to insert some qualification into the terms in which he is allowed to operate the provisions of this Bill. I urge that these two Amendments be inserted in the text of the Bill.
VISCOUNT DILHORNE: May I ask the noble Lord a question? I understood the noble Lord, Lord Silkin, to say that he would consider words to meet the points raised by the noble Lord, which he knows I support; and, of course, it is quite unnecessary, if you are going to deal with this question of criminal law, to seek to define "risk" in a Statute or "serious" in this particular connection. That is only misleading. But perhaps I may suggest to the noble Lord that there is advantage here in accepting the offer of the noble Lord, Lord Silkin, because one can always put down words on the next stage, in this case on the Report stage, on these points. I am with the noble Lord, and he has the support of the Lord Chief Justice and the noble and learned Lord, Lord Cohen, that there ought to be words which are descriptive of the risk and of the injury.
BARONESS STOCKS: Our attention has been called to the fact that an abortion may be a traumatic experience. That may be so. I would not know; I have never had one. But I cannot imagine any experience more traumatic than going through months of pregnancy, when one is afraid of pregnancy and what is going to happen at the end of it and what is going to happen after it. I would call your Lordships' attention to the fact that these Amendments have been discussed from the point of view of the law and from the point of view of the medical profession, but not from the point of view of the woman whose life is at stake.
LORD SEGAL: My reply to the noble Baroness is that the vast majority of ordinary, normal women would prefer to take the normal risks of childbirth rather than submit themselves to this operation.
BARONESS STOCKS: There is no reason why they should not do it, even if we pass this Bill.
LORD SEGAL: I am grateful to the noble and learned Viscount for his intervention, and if the noble Baroness, Lady Wootton of Abinger, would also accede to his suggestion, I should be glad, on the understanding mentioned by my noble friend Lord Silkin, to withdraw the Amendment at this stage.
Amendment, by leave, withdrawn.
5.13 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved in subsection (1)(a)(i), to leave out "or any existing children of her family". The noble and learned Viscount said: The noble Baroness, Lady Stocks, said a few moments ago that we were not paying attention to the interests of the pregnant woman. The Bill as it stands contains a provision which invites the doctors to disregard the interests of the pregnant woman and to give consideration to other factors. So I hope that I have the support of the noble Baroness in moving an Amendment which concentrates upon the condition of the pregnant woman and excludes the other factors. I move this Amendment, and I am delighted to see that, for once (I hope that it is a precedent that will be followed on numerous occasions), the most reverend Primate has added his name to this Amendment, together with my noble friend Lord Dundee. It is, I think, a most important Amendment. We had some discussion about it on Second Reading. I do not think it will be necessary in Committee for me to review all the arguments that were then advanced, but I will summarise them.
I think I have made plain where I stand on this matter. I should like to see a Bill; I think it would serve a useful purpose. I should like to see a Bill which provides for termination of pregnancy if there is a real risk to life, or a real risk of injury to the health, mental or physical, of the pregnant woman; and in considering these points the doctors concerned are, in my opinion, entitled to take into account all relevant circumstances. Indeed, Clause 1(1)(a) of this Bill, by sub-paragraph (ii), seeks to secure that. But as paragraph (a) now stands, it is not limited to that.
This paragraph provides that, although in the opinion of two doctors there is no risk of injury to the health of the pregnant woman or to her life—although they are

995
satisfied of that—none the less they can terminate the pregnancy if they are of opinion that its continuance would involve a risk of injury to
"the physical or mental health of … any existing children of her family".
So that provision is seeking to introduce as a justification for abortion a criterion wholly unrelated to the condition of the pregnant woman. I find it difficult to visualise how the birth of a child to a woman can affect the physical or mental health of any existing child. But I suppose it might be that little Willie would get so upset at the prospect of another brother or sister that it might affect his health, mentally or physically. But even if it did, is that any ground for terminating a potential human life? I should have thought not.
During our Second Reading debate the noble Viscount, Lord Barrington, went through all the variations of Amendments that had been tabled to the various Bills on this subject, each of them seeking to introduce sociological considerations. I think that some of those who support the Bill in its present form think that this particular provision will include sociological considerations—and, indeed, may intend it to do so. If I may follow the example of the Government and point out that it does not achieve its purpose—if that is the purpose—I should like to do so.
The noble Lord, Lord Stonham, would, I am sure, support me here in saying that if you must have consideration for the children of the existing family, that does not mean that you can take in sociological considerations. Be that as it may, surely it is wrong to consider termination of pregnancy as being justified on that ground contained in this Bill. I do not want to say any more than this: let the test which the doctors can apply be a test of health in its widest sense; but let it be the test of health of the pregnant woman, and not the test of health of any of the children of her existing family.
Amendment moved—
Page 1, line 13, leave out ("or any existing children of her family".)—(Viscount Dilhorne.)
5.19 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: I put down my name in support of this Amendment, and I hope that the Committee will accept it.
996
In a case where pregnancy constitutes a risk to the health of the mother, the mother's anxiety about her care of the other children in the family may, we know, be a real factor in the question of her health. This is a part of the mother's environment of which a doctor will take note when he forms a judgment about the mother's health in connection with a plea for an abortion. But the words now in the Bill introduce quite another principle.
The doctor is asked to form a judgment about the health of existing children. What will he do in discharging this duty which the law would give to him? Will he take all the children in the family, one by one, make a kind of diagnosis and say, "Assessing the health of this child, I believe that the birth of another child in this family will have such-and-such an effect upon the health of the child"? It would seem quite impossible for the doctor to do that. In fact, the doctor will not really be called upon to make a medical diagnosis so much as a medical judgment about the state and prospects of the family: if another child is added to the family, and is added to the burden of the mother in caring for the family, what effect, in general, will this have on the prospects of the family? Those considerations will be partly economic, partly social, and the bearing upon the health of the children will be an indirect one. I believe that this introduces a very unsound principle into the Bill, a principle which is thoroughly wrong, and I hope that the Amendment to delete the words will be accepted by the Committee.
LORD SOPER: I find it disagreeable—
LORD SOMERS: I should like to say—
LORD BROCK: My objection to the phrase, "or any existing children of her family", is simply that it departs from the medical considerations of abortion in so far as they affect the physical or mental health of the pregnant woman. Where the family background or circumstances are such as to prejudice the physical or mental health of the pregnant woman, the natural compassion of the doctor fostered by his medical experience will be sufficient to influence him to pay attention to these matters, and indeed to all matters, in advising abortion. But this phrase definitely introduces the

997
problem of social reasons for abortion. It is the natural and worthy fear of many surgeons that they will then be called upon to perform abortions for reasons not connected with the health of the pregnant woman herself. The words as they stand do not even define the existing children of her family. They might well include five or ten step-children, and the husband might well say to her, "We have enough children. You had better get rid of the one you are carrying." It might be the woman's first child, and she might be eager to have it. I cannot imagine that the destruction of the fœtus is the right answer to such a state of affairs, though in some cases it may be because of the effect on the mother's health which is covered by the clause as a whole.
In the debate in your Lordships' House on Second Reading, I emphasised that many surgeons would be totally opposed to performing an abortion for non-medical reasons. Some might be willing to do so, but most would not. The fact that the surgeon has the technical skill and can call upon the organisation necessary to procure an abortion does not mean that he should inevitably be expected to do so. I beg your Lordships to remember that this operation has to be done by someone—in fact by a team. It cannot be right to expect a surgeon and his team to do something against their will and conviction. The retention of this phrase introduces the possibility, even the probability, that he would be asked or expected to do so.
In the recent debate on the Second Reading of the Bill it was suggested that I might say something of the mortality associated with therapeutic abortion. This seems to me to be the correct place to do this, as the figures relate to the grounds for the reluctance of surgeons to become involved in operations which have no medical basis or justification. The interest of the House in the recent discussion encourages me to give this information. The information which I now put forward is contained in the report of the Council of the Royal College of Obstetricians and Gynæcologists, and was published in the British Medical Journal on April 2, 1966. The first figure which it is important to note is that the maternal mortality for Britain is approximately 0·19 per thousand births. In Scandinavia the mortality from legalised abortion
998
initially varied from 0·9 to 3·5 per thousand cases. The more recent figures put the mortality for Denmark at 0·7 per thousand, which is nearly three times as high as the present maternal mortality rate, including abortions, for England and Wales. I would remind the Committee that the maternal mortality rate for Britain is 0·19 per thousand, and the present mortality rate for Denmark is 0·7 per thousand. The very low mortality figures of 0·03 to 0·06 per thousand reported from countries in Eastern Europe cannot be reconciled with experiences in Northern Europe and in Britain. The figures of two deaths per 100,000 abortions which was mentioned recently in your Lordships' House would never be accepted by any practical surgeon, because every surgeon knows that you cannot do 100,000 operations with a mortality as low as that. The anæsthetic risk alone is greater.
In addition to mortality, we must consider morbidity, which can be very important after abortion. Again, I quote the observations of the Council of the Royal College of Obstetricians and Gynæcologists.
Non-fatal serious complications occur in not less than 3 per cent. of legalised abortions induced by experts under modern conditions, and morbidity rates as high as 15 per cent. are reported. These complications include hæmorrhage, rupture of the uterus, various forms of serious infection, renal failure, thrombosis and embolism. Many late complication can occur, but I would only mention sterility, which can be a personal tragedy to a young woman who wants children later. Later pregnancies after an induced therapeutic abortion are often accompanied by grave complications, which I will not enumerate.
LORD PLATT: Before the noble Lord sits down, may I clear up one point about the very varying figures about the danger of therapeutic abortion? I think that the figures which the noble Lord, Lord Brock, is quoting include abortions induced by hysterotomy, and I think that the very low figures for Eastern Europe are those procured at a very early state of pregnancy when hysterotomy is not necessary. I think that this may perhaps account for the discrepancy.
BARONESS SUMMERSKILL: I do not think the noble Lord's comments are relevant to the Amendment which is before the Committee. The Amendment before the Committee is concerned with the effect upon the existing children. It seems a little inappropriate that this Amendment should be moved a few days after the Government have raised the family allowances for the second child from 8s. to 15s., and for the third and subsequent children from 10s. to 17s. This was done following a careful investigation, and it was discovered that there existed a degree of child poverty and associated malnutrition which shocked all those who came in contact with it. The day after the increase in family allowances was made, The Times, under the heading "Poverty and childhood", said that the increase in family allowances would lead to something like 40 per cent. of low income families still being below the poverty line as defined for supplementary benefits. I have no doubt that the fact of the tragic poverty which still remains in our child population determined the action of my right honourable friend Margaret Herbison, when she resigned. Margaret Herbison, whom I have known for many years, is a sincere, dedicated woman of the highest principles, and during the many years I have known her we have often discussed the effect of abysmal poverty on the growth of children in our industrial areas.
These children about whom we are talking to-day are not the kind of children about whom the most reverend Primate was talking, where a doctor comes in and looks at them and says, "Now should Annie or Billy have another brother or sister?" We are talking about children who, for the most part, are in the slums of our big cities living in one, two or three-room homes, places where three or four share a bed, and adolescents of both sexes sleep in the same room. Indeed, the overcrowding is such that no longer can those rules and regulations which we passed many years ago to prevent the mixing of children of the two sexes in one room be observed.
There are thousands and thousands of evil, damp habitations without bathrooms, and where one lavatory, sometimes used by many families, is all that the slum possesses, and where the mother
1000
cooks on the landing. These children roam the streets because the pressure of human beings in their homes is such that the conditions there are intolerable. The father may be a drunkard, he may be near unemployable, he may be chronically sick. The mother may be shiftless and may have reached the stage of coplete defeatism. This is the family background where it could rightly be said that an addition to an already large family would involve injury to the physical or mental health of the existing children.
In my opinion, these conditions brutalise a sensitive child, and day after day in our courts the same story is told of the appalling home conditions of some child who has committed an offence. If a large family is already on the poverty line and there is then another mouth to feed, this must mean less for the existing children. It is not surprising to learn that nutritional diseases are now found in the poorest families. It is smug hypocrisy to deplore this state of affairs and then fail to protect an already large family from the demands of yet another unwanted member by denying the mother an abortion.
VISCOUNT MASSEREENE AND FERRARD: Would not the noble Baroness agree that some of the poverty among children is because family allowances are not always spent on the children? I have always thought that the National Health Service should employ far more inspectors to see that the family allowances are, in fact, spent on the children. I know many cases where the family allowances are spent on tobacco, beer and gambling, and I have frequently mentioned this fact. I just wanted to make that point.
5.34 p.m.
LORD SOPER: I do not find it pleasurable to find myself in opposition to the most reverend Primate; all the more because, although he is not my spiritual superior at the moment, in the course of years he may well be. But I find myself in complete opposition to this Amendment, because it fundamentally breaches two of the quite basic propositions on which I have sought to give my support. I believe in the social clause: I do not fear its intrusion. I am quite satisfied that 80 per cent. of all abortion cases are to be found within the framework of marriage, and among women

1001
who have already three, four or perhaps five children.
It is because I am concerned, and I think this Bill is concerned, to extend beyond the absolute question of life and death the charity and understanding and possibilities of new life to a great many people who suffer incredibly in this situation, that I believe the social clause is imperative. Therefore, though there are risks involved, and though in certain terms of theological speculation there is the question of sanctity of life, yet, as I ventured to say last week, to compare this theological abstraction, as it very largely is, with the practical need of relieving suffering leaves me unquestionably on the side of the social clause, which I hope will not be now left out of the Bill on the insistence of the noble and learned Viscount, who wishes, in his own words, to exclude all other factors save those of the health of the woman herself.
May I therefore say a word about this exclusion of all other factors, especially in the light of subsection (1)(a)(ii), which invites us to take the patient's total environment into consideration. How can you take the total environment of a woman into consideration unless you take consideration of her family; and I believe the integrity of the family must be regarded as a unity and cannot be split up. Therefore, if the wellbeing of the mother is to be considered, then that wellbeing depends in large measure on the wellbeing of the totality of her work and of her life, and that life includes her children very much.
Furthermore—and this only adds a little to what my noble friend Baroness Summerskill has just said—if it be true that we are to take into consideration the total environment, and endeavour under those circumstances to relieve the mother of conditions which are not only unendurable but, so far as most men are concerned, incalculable, is it not obvious that to delete from this Bill reference to the conditions of other children emasculates the Bill in such a way as to render it inoperative at the precise point at which I think it is most needed?
BARONESS EMMET OF AMBERLEY: I have not spoken before, so perhaps the noble Lord, Lord Conesford, will very kindly give way. I had not intended saying anything on this Amendment, but
1002
I should like to take up the noble Baroness, Lady Summerskill, on what she said about the large family. We know that she speaks from the heart, and we all feel as she does about such families, but I think she is looking to the wrong cure. It is a social cure that a family needs, not a medical cure for the mother. When you come to look at this from a logical point of view, if you are going to try to help such a family by the mother having an abortion when she becomes pregnant, she will probably have to have one every year. When are you going to stop? That is not the way to cure the troubles of the large family. It will eventually affect the woman's health.
I should like to see this matter tackled socially. I should also like to see it tackled from the father's point of view. I find it very difficult to understand why in this Bill there is not a single mention of the father's responsibility; and I think that where there is a feckless father he should be dealt with, and not the mother.
LORD CONESFORD: In strongly supporting this Amendment, I hope I may be allowed to say that of course nothing that I say will question the humanity of the noble Baroness, Lady Summerskill, or of the noble Lord, Lord Soper. Indeed, I thought their speeches were most valuable in bringing to the attention of the Committee the fact that this is a social clause; that this is to permit an abortion, not on any medical grounds relevant to the mother, but on sociological grounds: that the home may be a poor one, that poverty would be increased, and arguments of that kind. I thought that the most reverend Primate put the point most fairly when he pointed out that many of these questions—the size of the family and so on—would be part of the environment and could be relevant in considering the health of the mother.
But what we are considering here is something quite different, and let me bring two facts to the attention of the Committee. The first fact is that doctors, and nobody else, are to judge this matter. The second fact that I bring to the attention of the Committee is that the first of the words which we propose to delete is the word "or". The physical or

1003
mental health of the mother need not be affected at all, nor need there be any risk to her life, for an abortion to be lawful under these words. It will be sufficient that there is a risk to the health, mental or physical, of a single child. At an earlier stage the noble Baroness, Lady Wootton of Abinger, called attention, quite rightly, to the part that might be played by psychologists. Psychologists, I think, vary in merit, but so far as I can see, a psychologist might come genuinely to the conclusion that little Tommy would be very jealous if another child were added to the family, and that this would be harmful to his mental health. If a psychologist came to that conclusion an abortion might lawfully be carried out under this clause as it will stand unless we delete these words.
I do not believe that a great many Members of this Committee, no matter what their views on abortion are in general, have any conception of the extent to which these words will extend the law unless we delete them. We still leave the judgment to the doctors, though I should have thought, that, if the decision is to be on sociological grounds, it is not only the doctors who should judge, or even doctors who would be the best judges, or that it is the best doctors who would want this task thrust upon them. But to say that we should have this change in the criminal law, to allow an abortion absolutely independently of any consideration of the mother's life and health, merely because it is thought that an additional child will on social grounds inflict some harm on the family as a whole, is to transform the very nature of this Bill.
Of course, there may be room for other reforms which have nothing to do with abortion, but if we are going to revise the criminal law and are going to revise it as a body of Members of two Houses with the Government taking no responsibility, we must, I suggest, insert some principle into the Bill. The health, physical and mental, of the mother, the danger to her life and so forth, are all medical questions, and to deal with them provides a simple principle. But to go outside them to purely social grounds, and say that doctors, of all people, should be allowed to bring about an abortion, not because the health, physical or mental, of the mother will be directly concerned, but
1004
because some child may be inconvenienced—
LORD CHORLEY: May I point out to the noble Lord that the words in the Bill are quite clear? They refer to the physical and mental health of the children. It is not on purely sociological grounds at all.
LORD CONESFORD: I am obliged to the noble Lord, but he will find that it has been admitted both by the noble Lord, Lord Soper, and by the noble Baroness, Lady Summerskill, that this is a social clause. I will willingly yield to the noble Lord in a moment—we are very old personal friends, and he knows that I will fulfil my undertaking—but this is admittedly a social clause. I agree, of course, that those words,
"the physical or mental health of … any existing children of her family".
are in the clause.
Of course, that is in the Bill; and the example I gave concerned the mental health of a child of the family that might, in the view of a psychologist, be endangered because he was so abnormally jealous that he might have a mental breakdown if another child were added to the family. That would be within the words, but I say it would be an outrageous thing to enact here. When I say that this is a social clause, we have only to look at the history of the social clause in this House and in another place, and at the frank and honest admission of the noble Lord, Lord Soper. He says that this is a social clause, and he justifies it on that ground. I think the noble Lord who has just intervened will think that I am putting the thing fairly, but, if he wishes to intervene again, I will yield at once.
There is only one other matter to which I should draw attention. I have drawn attention to the fact that it is doctors who are going to judge, and I have drawn attention to the fact that these words are introduced by the word "or". The exclusive interest of a child will be sufficient under this clause as it stands, and doctors are to decide that. The final point that I would bring to the attention of the Committee is one which was put at an earlier stage by the noble Lord, Lord Saltoun. In such a case as was put by the noble Baroness, Lady Summerskill—the case where there are already many

1005
children living in overcrowded conditions—any additional child could be aborted under these words. It may not be one child and one abortion with which we are faced. It may be repeated abortions in that same family. I am not saying that such a case does not pose a problem. Of course it does. But are we quite sure, if we want to legislate for that, that repeated abortions are preferable to sterilisation? I am not at all sure. I support as strongly as I can the Amendment of my noble and learned friend Lord Dilhorne, supported as it has been by the most reverend Primate.
5.46 p.m.
BARONESS GAITSKELL: When I first looked at the phrase, "or any existing children of her family" I thought it was simply unnecessary to include it. In fact, when the noble and learned Viscount, Lord Dilhorne, drew my attention to it I said I agreed with him that it should be taken out of paragraph (a) of subsection (1). But when I read the Bill very carefully, the more I thought about the phrase the more good sense it made to me. We are now considering the case of a woman with a large family who is desperate not to have another child. Here perhaps I may say that the idea that noble Lords have, that a woman wants an abortion at the drop of a hat, or welcomes the idea of abortion and welcomes the idea of repeated abortions, is, I think, pure fantasy on the part of noble Lords. I think they do not know what they are talking about. It is for the women to say what they feel about abortions. The idea of 9 abortions or 19 abortions is ludicrous.
As I read this subsection—and I do not think that it is particularly well drafted—I understood that it meant taking into account not just the existing children but injury, mental or physical, to the existing children of her family. It seems to me that it takes into account the consequences to her family when there is a risk of injury to the physical or mental health of a mother in bearing another child—and there really is a risk when she is terribly against having another child. In fact, we are considering the protection of the mother in order to protect the family as a whole, which includes the existing children. I believe that the existing children often need protection when, as my noble friend Lady Summer-
1006
skill pointed out, the social conditions are so terrible—and I myself have seen these conditions in a centre for homeless people in London where in one room there was a woman with eight children. Although she had no home, and, in fact, had no husband, she had eight children and was being looked after by the council.
I am against this Amendment for several reasons. I believe that to take out these words would weaken this Bill to such an extent as to make no improvement on the present legal position with regard to abortion. I think that this is wholly undesirable, because what noble Lords do not seem to realise is that the present Bill tightens up the law in several respects: it does not make it easier for women, nor does it make abortion more permissive. The idea has been put about in the Committee here this afternoon that the flood gates will be opened if this Bill is passed. I do not for one moment believe this. This Amendment, by not allowing the physical and mental health of any existing children of the family to be taken into account, seems to me to revert to the rather punishing attitude taken by opponents of this Bill. These people say that a woman who has become pregnant and does not want her child, for any of the reasons set out in the Bill, must have it, whatever happens. I am convinced that this particular phrase extends protection to the mother and to the family. To take it out would weaken the Bill when its purpose, after all, is to improve the present position.
LORD PLATT: I am afraid that I cannot support this Amendment. I say "I am afraid" because I regret having to speak in opposite terms from those of my respected and noble friend Lord Brock. Once again I find myself wanting to repeat some of the words of Lord Soper, but without being able to command his eloquence. But perhaps I may say something from the medical point of view. May I first say to the noble Baroness, Lady Emmet of Amberley, that of course I agree with her that poverty and overcrowding are remedied by social methods and not by abortion. I also agree that the proper method of family planning is by contraception and not by abortion. Surely nobody in this House would favour abortion if there were some other way out. If the noble

1007
Baroness could tell us how the housing situation could be put right overnight, or even in a matter of months, then, of course, her words would have more weight.
I consider myself to be one of the majority of people in this country, in my own profession and, I hope in your Lordships' House, whose wish it is that this Bill, if passed into law, should, with all proper safeguards, be somewhat more permissive and not more restrictive than the present state of affairs. In my view, the words which the Amendment seeks to delete are almost the only words left in this Bill that go some way towards achieving this point. Secondly, I think that these words recognise that a doctor has a duty especially in this very difficult matter of abortion, to regard it as something which affects the whole family. I think it is always the doctor's duty to take such matters into consideration.
Thirdly, I agree that this is a medical provision and not wholly a social one, because it concerns (and I will quote the words again) the "physical or mental health of the pregnant woman or any existing children". The physical and mental health of the existing children is a matter about which the medical profession, at any rate, have an opinion. Fourthly, this provision recognises that the large family that is inadequately provided for, in money and accommodation, is surely one of the principal indications which make this Bill justifiable at all. Fifthly, to rule out these words at this stage is almost tantamount to instructing doctors not to take account of the influence of social factors on the medical state of their patients and their patients' families. To my mind, this would be a new and wholly undesirable departure from good doctoring.
LORD FERRIER: I am very much opposed to this Amendment, for the reason that I entirely support what was said, in far better words than mine, by the noble Lord, Lord Soper, and the noble Baroness, Lady Summerskill. As I said before, these words bear out the Dugald Baird experimental policy in Aberdeen; namely, accepting that this is a social clause. The problem of the other children in the family has a definite bearing on the doctor's decision as to whether
1008
an abortion should be granted. I use the phrase "doctor's decision" because of the way the noble Lord Lord Cones-ford has spoken; and in the light of what I said on Amendments Nos. 1, 2 and 3. I believe it is important to emphasise that one of the doctors concerned must be related, through the National Health Service, to some sort of social work.
That brings me to what the noble Baroness, Lady Emmet of Amberley, said in her short speech which I welcomed; because hitherto I had felt rather lonely at being the only one to talk about the father. I am glad she joined me in this respect. I agree with the noble Baroness that this question of social care has a bearing on the operation of this clause in the Bill. But she went on to say that an abortion in these circumstances might lead to an abortion every year. This is not so in Aberdeen. The Baird team go further than this. Dr. Baird is personally prepared to sterilise a mother—I think it is a reversible sterilisation—so that this does not happen every year, as the noble Baroness said that it might. I welcome what the noble Lord, Lord Platt, has said: that this is, indeed, a social problem and that it requires to be recognised in the Bill's provisions, if only to insist that there is a measure of social supervision on this point. I further believe that this clause is the crux of the Bill as it has come to us from the Commons. I shall oppose the Amendment and support the Bill as it stands.
6.0 p.m.
THE MARQUESS OF SALISBURY: I have not intervened at all in the discussions on this Bill. I did not think it was a subject with which I was very familiar, nor did I think that my views would be of the slightest importance to your Lordships. But it seems to me that the Amendment which we are discussing at the moment is so extremely important that I cannot bear to remain silent. As I listened over the last half-hour to the discussion in which so many of your Lordships have taken part, I felt that the arguments put forward by the noble Baroness, Lady Summerskill, the noble Lord, Lord Soper, the noble Lord, Lord Platt, and others would have been appropriate in a discussion on birth control or family planning. Whether one agrees with those proposals or not, what was said would have been entirely relevant to

1009
a debate on that subject. But this is something quite different. What we are doing, what we are being asked to do, is to kill a living thing, or at any rate, a thing which has in it the seeds of life. I admit that we may be justified in doing that on medical grounds. The health of the mother may be fatally injured unless the fœtus is aborted; though even then I feel that it would be a terrible decision to have to take. But if we depart from the purely medical grounds for abortion and bring in social conditions, it seems to me that we get into very deep waters indeed.
What, for instance, is the position of a doctor who is asked to perform an operation for abortion for such reasons as that? It seems to me his position would be quite impossible. He would be told that the mother had already five or six children and asked, ought she to have another? And who is he to decide to destroy life for that particular reason? The noble Lord, Lord Platt, seemed to think that he would find no difficulty in it, and I admire very much the self-confidence he shows on this subject; but I am certain there are many thousands of medical practitioners in this country who would feel that they had been put into a completely impossible position if the Bill were passed through your Lordships' House in its present form. I have spoken only for a moment or two, but I hope that your Lordships will feel that what I have said is worth while. I feel it so strongly that I thought I ought to express it in this Committee.
LORD CHORLEY: I agree very much with the noble Marquess, Lord Salisbury in regarding this as the most important part of the Bill. I agree with what the noble Lord, Lord Ferrier, and the noble Lord, Lord Platt, have said, that this, alas!, will bring very great depression to hundreds of thousands of people in this country, because it means that they will have to continue getting a back-street illegal abortion. The whole object, or the main object, of the Bill is to get rid of back-street illegal abortions. I think it clear from the statistics given to us that a very large number of the illegal abortions are asked for by married women who find that the struggle to bring up a large family is not only wearing them down but making it
1010
impossible for them to bring up a really fine family, which is the ambition of all good parents.
I think it significant that even in my lifetime, and certainly over the last century, there has been a swing towards what one might call quality in the family. The old law was very properly concerned mainly with the preservation of life. In primitive times life was very cheap, and I think the great service that the Church and the religious bodies have done is to emphasise the importance of life. But life is more than just a quantitative thing; it is quality as well, and in my lifetime the swing has been intensely towards better families; more beautiful children; better educated children; healthier children. That is what is called the social part of this question, because these things are all intimately connected with each other. The physical and mental health of the children in a family, and bringing up a good family, depend enormously (as I think was brought out extremely well in the Peckham Experiment and the book which was written about it by the fine man who ran the experiment) on the social surroundings in which that great achievement has to be carried through.
What the noble and learned Viscount is asking your Lordships to do by accepting this Amendment is to deprive people, who have been hanging on to everything which has been going on in the other place while this Bill was going through, of their last hope. The most reverend Primate is one of the most sympathetic and compassionate people it has ever been my good fortune to meet and listen to; but I wonder whether he realises that what he is asking your Lordships to do is to drive these unfortunate people back to the back-street abortionist, because that would be the inevitable result if you accept this Amendment.
The noble Lord, Lord Conesford, with whom I have crossed swords, said it is for the doctors to decide. Of course that is not so. It is the woman's task, and not only the woman, but the father as well. He comes into these cases, because it is a family decision. Very often the father sees the back-street abortionist and fixes up the operation. It is a family

1011
decision, even if the father is not mentioned in the Bill, and that is the first and most important step. The doctors come in only at the second stage.
In this Bill, if it is passed in its present form, the duty of the doctor will be to form an estimate of the effect of more births in the family on the physical and mental state of the existing children. The doctor would know the family and would be very well placed to give an estimate about it. That is why this is called the social clause, because the social element obviously comes into it; but, basically, it is a medical problem affecting the mental and physical condition of the children. That is why I reminded my noble friend that that is what the law will say if the Bill becomes law. Any doctor who tried to decide the thing on purely social grounds, without considering its effect on the mental and physical life of the children, would be going against the law and would be liable to be brought up before a court of law. In my view, these considerations make it absolutely essential that your Lordships should reject this Amendment.
LORD PARKER OF WADDINGTON: I hesitate to intervene in this debate, but after listening to it I am wondering whether we are all applying our minds to the same problem. May I illustrate it in this way? A woman comes to her doctor and says that she wants her pregnancy terminated. She says, "Look, I have got nine children. We are living in these appalling conditions in this one room. I simply cannot face it." We all agree that if the doctor is then satisfied that the birth of another child is going to have an effect on the woman's mental or physical health, an abortion would be justified. That is on the consideration of the children, the one room, the difficulty of feeding them, nutrition and everything else. It is all taken care of because the doctor has to consider the mother's total environment.
That has nothing whatever to do with the words we are considering. The case we are considering is where a mother goes to her doctor and says, "I want an abortion. Look at those children in that room. It does not affect me mentally or physically; I can cope with the situation. I can go out to work and feed them and do the best I can for them,
1012
It will not hurt me at all. But I am asking you to say, as a social question, that it is wrong for them to be living under those conditions which will be made worse if I have this child." That is the problem to which we are addressing our minds.
BARONESS WOOTTON OF ABINGER: I had intended to reserve what I wanted to say on the social clause until the next Amendment, which stands in my name and which goes a little further than the present one, but it appears that the main debate is now taking place on the words about the existing children. If this is the social clause, it has appeared before us in the various Bills we have had in a good many forms, some more objectionable and some less. I am not sure that this is the least objectionable of them.
I feel strongly that we must respect the opinion of the medical profession on medical questions, and I think that is what this Bill is designed to do. I do not think that the opinion of the medical profession on purely social considerations is necessarily more authoritative than the opinion of other persons. It is true that doctors will look at patients in their total environment, but they will use as their standard of reference the effect upon the health, whether physical or mental, of their patients.
LORD STONHAM: My noble friend said that doctors must look at the total environment of the patient, but the next Amendment in the noble Baroness's name would remove that provision. Is it her intention not to move that Amendment?
BARONESS WOOTTON OF ABINGER: That is not my intention, and I will make my reasons clear in due course. I have not overlooked the next Amendment phrased in those terms in my own name. What I am afraid of—and I speak here from what I have heard in discussions with doctors and with social workers—is that this Bill is being changed from a Bill designed to provide for the termination of pregnancy, where pregnancy it is medically inappropriate and inadvisable, to a Bill into which there sneaks a certain amount of pseudo-eugenics.
I know cases in which, understandably, doctors and social workers who have had much contact with the more distressing social areas of our community have formed strong opinions as to who ought

1013
to have children and who ought not to have them. Those opinions are not, in the strict sense, medical opinions. They are an expression of dislike of people who may live rather disorderly, and even idle, lives and who do not come up to the standards of behaviour and morality which these medical practitioners approve. There is a real risk that, if we allow a social clause, we shall be allowing the medical profession to make judgments on considerations which are not medical but social and on which they are not better qualified than other people. In short, I am anxious that we should be absolutely clear of pseudo-eugenics and regard this Bill entirely from the point of view of the pregnant woman, her welfare and the welfare of the child she may be about to bear.
LORD SOPER: May I ask my noble friend whether she finds it easy to separate a medical decision from a moral decision, especially as there is no specific definition of the amount of risk involved? It is not a question of absolute risk—you cannot be rather dead; you are just dead. But you can be rather ill—and as soon as there is a comparative judgment to make, is not the medical profession involved inevitably in making a moral judgment on medical grounds rather than a medical judgment in itself?
BARONESS WOOTTON OF ABINGER: I should be very much alarmed if the medical profession were put in a position in which they had an authority on moral questions similar to that which they have on medical questions, and I should be surprised if anyone who wears the cloth of my noble friend Lord Soper would be prepared to agree to any such idea.
6.15 p.m.
LORD MOLSON: We have had a full discussion on this matter, and I rise to indicate that the supporters of this Bill do not feel that they can accept this Amendment. It has been made perfectly plain from the beginning by my noble friend Lord Silkin, and by many of his supporters, that they are not satisfied that this Bill should be merely a restatement of the doctrine in the Bourne case. It is intended to be a measure of social reform and to go further than the existing law. It is intended that it should be more permissive than the existing law.
1014
The Bill raises the question of social considerations and the conscience of the doctor. The noble Lord, Lord Brock, spoke for a large section of the profession when he talked of being influenced purely by medical considerations. The noble Lord, Lord Platt, also spoke for a large section of the medical profession when he expressed a contrary view. I do not believe it is possible to speak about a medical conscience, or a religious conscience, or a social conscience. I think that every man's conscience is built up of many different considerations applying to different aspects of human life; but they are all governed by what he, in his soul, believes to be right.
I believe that Clause 4—the conscience clause—as redrafted, and as it will be moved by my noble friend Lord Silkin, will cover all the proper cases of conscience, whether religious, medical or social, or combined; and if it can be shown that it does not do so, then I am sure that Amendments will be made to it. It has been argued that such cases as have been put by the noble Baronesses, Lady Summerskill and Lady Gaitskell, and other speakers, of large families living in bad conditions to whom the addition of one more child will result in increased misery and deprivation, can be covered under the words dealing with the health of the mother. Indeed, my noble and learned friend Lord Dilhorne says that it is covered.
I think that there are some doctors (possibly the noble Lord, Lord Brock, would be among them) who would find it a little difficult in their consciences to cover these social cases by reference to the health of the mother. There might be a very irresponsible mother, who did not care about the child and was not prepared to make any great additional sacrifices, whose bearing of another child would bring a deterioration for the other children, certainly in their happiness, and likely enough in their health also.
It has been argued that these matters of large families should be dealt with by the social services, and especially by family allowances. Certainly let that be done. But it cannot be done in this Bill, and it is no answer to say that some time in the future other measures can and will be taken which will reduce these problems. No social service will actually

1015
abolish the case of the large family with the feckless mother living in bad conditions—though the number of such cases may be greatly reduced. I am sure that the time will never come when there will not be a case of a mother who finds herself pregnant and who sincerely believes—and it is the opinion of those best qualified to judge—that the addition of one more child to her family will be greatly to the disadvantage of all the existing members of that family.
Therefore, on this matter, which has, been so clearly put by the noble and learned Lord the Lord Chief Justice (I do not know which way he is going to vote, but he has put the issue with his usual clarity and precision) we who support the Bill cannot possibly accept the Amendment.
VISCOUNT DILHORNE: I have the feeling that the Committee would like to proceed to a decision upon this matter fairly soon, and that is why I venture to rise to my feet at this moment. As I moved the Amendment, I should like to say a few words in reply to some of the observations which have been made. They have rather astonished me. We have had a wide-ranging debate, but, if I may say so with the greatest respect to another lawyer, the noble Lord, Lord Chorley, I thought the greatest extent of exaggeration and inaccuracy was reached by him in the course of his speech.
It may be that the main object of this Bill is to stop back-street abortions. I hope that this will be a consequence, but I do not think it will be achieved solely by this Bill. The object of the Bill is, as it says, to amend and clarify the law. I would support a Bill which amends and clarifies the law if the amendments are sound. But when the noble Lord, Lord Chorley, goes on to say that those who support this Amendment are depriving people of their last hope, and that driving people back to back-street abortions will be the inevitable result, while he may have misled himself I hope that he will not have misled your Lordships.
The noble Baroness, Lady Summerskill, has made, not for the first time, a very moving speech about the social conditions and poverty of some large families; and she was supported in that by the noble Lord, Lord Soper. If I thought for
1016
one moment that this Amendment would prevent an abortion taking place where the health of the pregnant mother would be affected by those conditions, then I should not have moved it. What will be the position? Let us take a particular case. A woman finds herself pregnant after having three, four or five children, to take the example given by the noble Lord, Lord Soper, and it will be her decision to consult her doctor to see whether the pregnancy should be terminated; and she will want it terminated. If the conditions are anything like the noble Baroness described, or those envisaged by the noble Lord, Lord Soper, I should have thought that the vast majority of doctors would be able to form the perfectly honest opinion that she should not add to her burdens in the future by having an additional child without a risk, and a serious risk, of injury to her mental and physical health.
As the Bill stands, it is my belief that the cases to which the noble Baroness so movingly referred, and the cases quoted by the noble Lord, Lord Soper, are indeed covered by this Bill, because it is the woman who will go on the ground that she is desperate. And if she is desperate, is not her health likely to be affected? Is there not a real risk of her health being affected? But that is not the whole case. As my noble and learned friend the Lord Chief Justice has said, these words are deliberately intended to go wider. I am not going to argue as to whether they really achieve the result of introducing purely social considerations unconnected with health. Obviously, they are interpreted by some in that way. But clearly what they do, as the Bill now stands, is to say that when a woman goes to the doctor and says to him: "I do not want another child because I have three already" (or it may be four or five); "I do not mind about having one; it is not going to affect me or worry me; it will not affect my health or my mind" and the doctor is satisfied of this, the doctor will then be entitled, unless these words are removed, to destroy a potential human life. I think that is wrong. I think that such a case may well be an overwhelming case for the improvement of our social services, but not a case for the destruction of a fœtus.
I have made my remarks as shortly as I can. I should like to express my thanks

1017
to those who have supported me in the course of this debate. I have spoken again at this length only because it seems to me that the arguments—and it may be my fault—in favour of the Amendment have not been clearly or sufficiently appreciated by any of those who spoke so eloquently against it. There was a time when the noble Baroness, Lady Gaitskell, was in support of this Amendment. Something, I fear, has diverted her from her proper course, and I hope that, in the event, she will find it in the right Division Lobby with me.
LORD BROCK: I should like to make a brief comment on the question of the confusion that seems to have arisen in regard to the place of the doctor in this matter. The impression has been given that the doctor is quite incapable of forming
an opinion based on the obvious conditions of hardship in the family which the woman suffers. As doctors, they are worldly wise and compassionate, and they are fully capable, of taking these things into account when making their decision; and they do so. I was shocked by the comment that a doctor's duty, if this Bill is passed, is to form an honest opinion based on the circumstances of the family, and that if he does not he is liable to prosectuion. He already does this, because it is what he should do. He is quite capable of doing it, and will continue to do so.
6.27 p.m.
On Question, Whether the said Amendment (No. 7) shall be agreed to?
Their Lordships divided:—Contents, 87; Not-Contents, 86.

CONTENTS

Aberdare, L.

Dilhorne, V. [Teller.]

Lytton, E.

Albemarle, E.

Dundee, E.

Mancroft, L.

Audley, Bs.

Durham, L. Bp.

Massereene and Ferrard, V.

Barnby, L.

Emmet of Amberley, Bs.

Merrivale, L.

Barrington, V.

Exeter, L. Bp.

Mills, V.

Berkeley, Bs.

Ferrers, E.

Monckton of Brenchley, V.

Beswick, L.

Fortescue, E.

Mowbray and Stourton, L.

Blackford, L.

Furness, V.

Nugent of Guildford, L.

Boston, L.

Grantchester, L.

Oakshott, L.

Boyd of Merton, V.

Grenfell, L.

Parker of Waddington, L.

Brock, L.

Gridley, L.

Perth, E.

Brooke of Cumnor, L.

Grimston of Westbury, L.

Rockley, L.

Brooke of Ystradfellte, Bs.

Hankey, L.

St. Helens, L.

Buckton, L.

Hodson, L.

St. Oswald, L.

Canterbury, L. Abp.

Horsbrugh, Bs.

Salisbury, M.

Carnock, L.

Howard of Glossop, L.

Sandford, L.

Carrick, E.

Hylton-Foster, Bs.

Sandys, L.

Carrington, L.

Iddesleigh, E.

Sempill, Ly.

Carron, L.

Inchyra, L.

Stamp, L.

Chichester, L. Bp.

Inglewood, L.

Strang, L.

Clifford of Chudleigh, L.

Jellicoe, E.

Strange, L.

Conesford, L. [Teller.]

Kennet, L.

Strange of Knokin, Bs.

Cork and Orrery, E.

Kilmany, L.

Vaux of Harrowden, L.

Craigavon, V.

Kilmarnock, L.

Vivian, L.

Craigmyle, L.

Lilford, L.

Waverley, V.

Cullen of Ashbourne, L.

London, L. Bp.

Wedgwood, L.

Daventry, V.

Longford, E. (Lord Privy Seal.)

Wells-Pestell, L.

Denham, L.

Lothian, M.

Wolverton, L.

Derwent, L.

Lucas of Chilworth, L.

Wootton of Abinger, Bs.

NOT-CONTENTS

Addison, V.

Chorley, L.

Florey, L.

Ailwyn, L.

Cohen, L.

Gaitskell, Bs.

Amulree, L.

Collison, L.

Gardiner, L. (L. Chancellor.)

Archibald, L.

Cooper of Stockton Heath, L.

Gladwyn, L.

Asquith of Yarnbury, Bs.

Cranbrook, E.

Greenway, L.

Balerno, L.

Darwen, L.

Hacking, L.

Birdwood, L.

Dinevor, L.

Hawke, L.

Blyton, L.

Elliot of Harwood, Bs.

Hayter, L.

Bowles, L.

Falkland, V.

Henley, L.

Buckinghamshire, E.

Faringdon, L.

Hertford, M.

Byers, L.

Ferrier, L.

Hilton of Upton, L.

Caccia, L.

Fleck, L.

Hughes, L.

Hurcomb, L.

Morrison, L.

Shackleton, L.

Kahn, L.

Moyle, L.

Sherfield, L.

Killearn, L.

Moyne, L.

Silkin, L.

Kirkwood, L.

Moynihan, L.

Snow, L.

Lambert, V.

Noel-Buxton, L.

Soper, L.

Latham, L.

Norwich, V.

Sorensen, L.

Leatherland, L.

Pargiter, L.

Stocks, Bs.

Lindgren, L.

Platt, L.

Stonham, L.

Llewelyn-Davies, L.

Plummer, Bs.

Stow Hill, L.

Lloyd of Hampstead, L.

Ponsonby of Shulbrede, L.

Summerskill, Bs. [Teller.]

MacAndrew, L.

Raglan, L.

Swanborough, Bs.

McCorquodale of Newton, L.

Rea, L.

Terrington, L.

Maelor, L.

Rowley, L.

Teynham, L.

Mar, E.

Royle, L.

Vernon, L.

Mitchison, L.

St. Davids, V.

Wade, L.

Molson, L. [Teller.]

St. Just, L.

Winterbottom, L.

Monson, L.

Segal, L.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
6.38 p.m.
BARONESS WOOTTON OF ABINGERhad given Notice of her intention to move, in subsection (1), to leave out from "health of the pregnant woman" in paragraph (a)(i) to the end of subparagraph (ii). The noble Baroness said: In view of the decision which the Committee has just taken, it would not be proper for me to move my Amendment in its present form. The question of whether the provision regarding existing children is to be in the Bill or not has now been decided. I shall, therefore, with the consent of the Committee, move my Amendment in this form:
"Page 1, line 13, leave out from ("family") to the second ("or") in line 16."
May I say, quite shortly, to make this perfectly clear, that what that means is that this is an Amendment to omit subsection (a)(ii); that is to say, the paragraph which reads:
"in determining whether or not there is such risk of injury to health account may be taken of the patient's total environment actual or reasonably foreseeable".
I am moving to omit that paragraph.
My noble friend Lord Stonham asked me just now whether I intended to move this Amendment, in view of the fact that I said just now that any doctor takes into account the total situation and environment of his patient. I do intend to move this Amendment, for this reason. While a doctor always does this, I do not understand why it has been spelled out in this Bill that, in this particular instance, he has to take account of the total environment actual or foreseeable. This is normal medical practice. A little earlier we were accused of teaching
1020
doctors to "suck eggs", and it appears to me that if this clause remains in the Bill we are really emphasising an elementary point. Therefore I ask myself why the clause is in the Bill. Either it means what it says, in which case it is totally unnecessary, or it means more than it says, in which case it is yet again an attempt to widen the social provisions of the Bill as distinct from the strictly medical. It is true that the words indicate that account is to be taken of the environment only in determining whether or not there is a risk to health, but it is quite obvious that any doctor would do that. However, the criterion which he uses is the criterion of health and not of the nature of the environment as such, or the desirability of adding to the family in the social environment, as distinct from the effects upon health.
Therefore what I want to ask the noble Lord, Lord Stonham, and the sponsors of the Bill, and in particular my noble friend Lord Silkin, is this: does this clause mean exactly what it says and no more? If so, why is it in the Bill? If it means more than it says, what is the "more" that it means? I beg to move.
Amendment moved—
Page 1, line 14, leave out from ("family") to the second ("or") in line 16.—(Baroness Wootton of Abinger.)
VISCOUNT DILHORNE: I have listened with the greatest interest to the noble Baroness, and I do not propose to attempt to answer the very pertinent questions which she has asked, except to say that I have put down an Amendment to alter these words which is of a drafting character. The noble Baroness asks what these words mean. I think that the drafting is defective, because it

1021
talks of account being taken of the "patient's" total environment. All the other references have been to "pregnant woman" so that is wrong. Then what is the difference between an "environment" and a "total environment"? I hope the noble Lord, Lord Silkin, will explain that. Words in a Statute of a criminal character are extremely important.
As your Lordships will see in Amendment No. 9, which it might be to the convenience of the Committee to mention now, I have sought to insert in the place of the words "patient's total environment actual or reasonably foreseeable" the words "pregnant woman's environment both at the time when the child would be born and thereafter so far as foreseeable". I think that is purely drafting. It is intended to be so, and I hope the noble Lord will accept it.
While saying that, I rather share the view of the noble Baroness Lady Wootton of Abinger that it is unnecessary to have anything of this sort in the Bill, but if there is any doubt about it I would rather have words in the Bill to show that the medical profession, in making up their minds, are fully entitled (as I think they always are) to have regard to all the relevant circumstances. That is really all one is saying by the use of the word "environment"; but not only circumstances which are likely to exist at the time of the birth but "so far as foreseeable thereafter". I doubt very much whether it is necessary to put this provision into the Bill, but if any such provision is to be in the Bill I hope the noble Lord, Lord Silkin, will accept the drafting proposals that I have made.
LORD SILKIN: May I say to my noble friend Baroness Wootton of Abinger that these words mean no more than appears on the surface. There is no hidden or underlying meaning and it is intended that the two doctors who are considering whether or not they approve of an abortion should take these factors into account. I was not quite sure what the noble and learned Viscount intended by his Amendment. If it is really a drafting Amendment and nothing else—and I was not sure whether that was in fact the case—
VISCOUNT DILHORNE: May I assure the noble Lord that it is entirely drafting.
LORD SILKIN: I take the word of the noble and learned Viscount for it; and if that is so may I, without prejudice, accept it because it does look better—subject to further consideration, if necessary, at the next stage. If it will speed matters now I am quite prepared to accept it.
BARONESS WOOTTON OF ABINGER: I am extremely glad to have my noble friend's assurance that this clause does not mean more than it says. I am still rather puzzled why it appears in the Bill at all. I have never known a doctor who considered his patient in a complete vacuum without considering his or her social circumstances and who regarded health as being divorced from environment. So it seems that these words are totally unnecessary. But in view of my noble friend's assurance I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
VISCOUNT DILHORNE: I beg to move.
Amendment moved—
Page 1, line 15, leave out from "the" to "or" in line 16 and insert "pregnant woman's environment both at the time when the child would be born and thereafter so far as foreseeable".—(Viscount Dilhorne.)
LORD PLATT: May I ask the noble and learned Viscount a question about his drafting Amendment, as I, in my ignorance as a non-lawyer, read it? Does this exclude consideration of the pregnant woman's condition now—that is, at the early stage of the pregnancy? The Amendment refers to "at the time when the child would be born and thereafter".
VISCOUNT DILHORNE: This definition does not exclude any such consideration but merely makes it perfectly clear that the environment at the time of the birth of the child and in the future can be included in the consideration. It does not mean that one has to look only at that. One looks at the health of the pregnant woman at the time when she is examined.
LORD PLATT: I thank the noble Lord.
6.48 p.m.
THE LORD BISHOP OF DURHAM THE LORD BISHOP OF DURHAM moved, in subsection (1), to leave out "(b) that there is" and insert "of". The right reverend Prelate said: I think it might be appropriate if the discussion were to range over Amendments 11 and 12 as well, if the noble Baroness, Lady Emmet of Amberley, and your Lordships agree.
BARONESS EMMET OF AMBERLEY: I shall be quite willing.
THE LORD BISHOP OF DURHAM: The intention of this Amendment, No. 10, is to ensure that these cases of handicapped children should be explicitly considered in the Bill but—and I think it is a big "but" after our earlier discussion—in the context of the mother; someone who is there and present before the doctor and on whom he can, we hope, reliably base his diagnosis. I need not spell out again, I think, the reasons of compassion and sensitivity which moved me, and I am sure others, to press for some explicit provision in the Bill in the case of the child who, if born, will be very seriously handicapped. The same motives of sensitivity and compassion apply here as in the earlier case we have considered.
The unamended clause in the Bill as it stands would, admittedly, make provision for these cases, but it would leave the mother entirely out of consideration. It would isolate the fœtus and then base the decision to abort, not on any diagnosis whatever but on a statistical probability: as I said in the Second Reading debate, a probability that might be one in two, would be more likely one in four, and might perhaps be one in eight. This seems to me to be incoherent reasoning, to decide to do something to a mother on the basis of an argument carried out on the fœtus in isolation. It seems to me first of all to be incoherent and muddled reasoning; it then seems to be a violation of medical practice to do something on the basis not of diagnosis but of statistical probability and, against all that, to show scant respect for what is far more likely than not in the fœtus, a human life. It might be said that this Amendment is unnecessary. Here we have echoes of what has been said in the last quarter of an hour or so—at least it might have been said once—because "total environment"
1024
covers all we need. But in fact the word "total" has now gone, and we have only "environment". So I should have thought that there was more of a case than ever for spelling out what we mean by "environment" at any point where it might be misleading or unnecessarily restrictive.
I divide my argument into four points to show why I think, even though "environment" is still in, this Amendment is needed in order to care for the case of the deformed and defective child, but not in isolation. First, it is always possible to take "environment" in an impersonal sense, as we speak of environmental factors, say, in sociology. There is always a risk that "environment" will not be given a wide interpretation, and now that "total" has been taken out that risk is more than ever likely. If it is given such an interpretation, there is always the risk that it may be thought to be no more than a disingenuous quibble and bring the law into even further disrepute.
The Amendment I am proposing would point out explicitly a recognised and important interpretation. It would indicate beyond all doubt that the case of the deformed and defective child is one that ought to be considered in the context of the mother. My suggestion is to spell it out expressly so that the man's conscience will legitimately see that consideration can properly be given to it—and I do not think that in this I am teaching anyone to suck eggs, even less omelettes. I think it is just spelling out what otherwise might not be very clear. If there is any doubt whatever, I agree with the noble Viscount, Lord Dilhorne, that we should spell it out beyond misunderstanding. That is my first point.
My second point is this. The case of this handicapped child is a very exceptional one in relation to the environment, because it is the one factor in that environment which the abortion would remove. It deserves a very special place because of its very special nature in the environment. Thirdly, in cases where this factor is at all relevant it is likely to be an important, if not the determining, factor, and therefore I think justifiably highlighted.
Fourthly, by setting this case of the handicapped child in the context of the mother, as this Amendment suggests, not

1025
leaving out of consideration the handicapped child at all but bringing it in where, in my view, it ought to be, it seems to me that we avoid difficulties that might otherwise occur over words like "substantial" and "serious" in the original Bill. We are already having a semantic half-holiday, as it were, in terms of "risk" and everything else.
We can "go to town" even more when we get to the next clause about the words "substantial" and "serious". We can be here all night and most of to-morrow; there is no limit. I think if we put the case of the handicapped child in the context of the mother, a good deal of that semantic steam can be evaporated here and now, because what will be done if the Amendment is agreed to is that the case will be judged in relation to the mother. We shall ask the question: Has this possible handicap such a degree of risk about it, or is the handicap such that the mother will be seriously and substantially affected? These words are slanted on to the mother herself, and are then in a much better state for being answered intelligently. We are asking: Is this mother, if she fulfils the normal duty of bringing the handicapped child to birth, going to be adversely affected in her life and health, and seriously and substantially? I do not say that the words are clear in their meaning. If they were they would be more or less useless. But they are tagged in their meaning to a reliable situation, and a more reasonable decision can then ensue.
These are my reasons for moving this Amendment, which I hope does all that anyone of sensitivity and compassion would wish to see done for the handicapped child, and yet does it in a way which is not incoherent, which is medically reliable and, I hope, on principle, sound. I beg to move.
Amendment moved—
Page 1, line 17, leave out ("(b) that there is") and insert ("of").—(The Bishop of Durham.)
LORD BROCK: I support this Amendment because, as the right reverend Prelate has so eloquently shown, it moves the possible risk of the child being born abnormal back to the effect on the mother's physical or mental health, and away from this difficult and argumenta-
1026
tive problem that a fœtus should be deliberately destroyed because of an undefined but perhaps small risk that it might be born deformed. The approach in this new wording is quite different, and is in conformity with the general principle acceptable to many of judging the problem against the ill effects on the pregnant woman.
THE EARL OF DUNDEE: I am very grateful to the right reverend Prelate for the suggestion that my Amendment, No. 11, might be discussed at the same time as his, and also the Amendment of my noble and learned friend Lord Dilhorne, No. 12. I shall state the case for my Amendment very shortly, because to me the case seems to be a very simple one. I am not going to reinforce it with any figures, although I should be very glad indeed if any of your Lordships who know more about medical history than I know gave any figures showing the proportion between pre-natal expectation of possible deformity and actual resulting deformity as revealed by the event of birth. If the proportion is, as I think it very often is, a fairly low one, it is certainly no reflection on doctors, because doctors asked to give an opinion of this kind are expected to measure their advice against normality. If you ask a doctor whether your wife, who is pregnant, is in danger of her life, and he thinks there is only a 10 per cent. danger, of course he is bound to say great danger, because 10 per cent. is very great compared with the normal danger of pregnancy. Similarly, if you ask whether there is a grave risk to the life of your child if you take him into a tropical country, if there is only a 5 or 10 per cent. risk he would have to say there is a grave risk, because that is a great proportion compared with the normal risk of moving from one area to another.
If we find that of pre-natal expected deformities only a small proportion are actually born deformed, maybe one in five, your Lordships will naturally ask: is it right, is it good, that we should destroy five lives of which only one would be deformed and four normal? I would say that it is wrong to destroy two lives in order to prevent the risk of one being abnormal. That is my first reason for moving this Amendment, and I hope it is one with which your Lordships will agree.

1027
My other reason your Lordships may not agree with so readily, but for myself I should think it wrong to destroy an unborn life even if you were certain that it was going to be deformed. Again, I have very little personal experience or direct knowledge of the care of deformed children. Many of your Lordships have far greater experience than I have, and I hope that any of your Lordships who can do so will give any examples that may be relevant. But there are certainly many thousands of cases of deformed children, very seriously deformed, sometimes without legs, who are trained and taught to move in the most marvellous way, and to enjoy life with the greatest zest and do exceedingly useful work, far more useful work than some normal people do.
Whatever we may happen to believe or not believe about the origin of life, at least we can be certain that we did not make ourselves. If we are going to deny life to an unborn child because we think it may not be able to do the same kind of work as we do, or to take the same amount of exercise as we do, or to enjoy exactly the same kind of pleasures as we enjoy, then surely we are acting like proud man in Measure for Measure:
"Drest in a little brief authority,
Most ignorant of what he's most assured,
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven
As make the angels weep."
BARONESS GAITSKELL: May I put the women's point of view in regard to the noble Earl's speech? We can use statistics, and perhaps a man would say that, "There is a 10 per cent. chance that the child may be deformed or mentally handicapped. Well, I will have it. I shall not let my wife have an abortion". But I think if you apply that same percentage to the woman you might find a quite different answer. The thought for any woman of having a mentally or physically handicapped child is absolutely appalling. No man will ever understand it. This does not mean that when two people have a mentally or physically handicapped child they do not love it. Of course they do.
THE EARL OF DUNDEE: May I interrupt the noble Baroness? Surely, if the effect on the mother is so appalling, then
1028
she would in any case be able to have her pregnancy terminated under the first clause.
BARONESS GAITSKELL: One does not know the effect on the mother totally before she has the child. Perhaps the noble Earl has not been round a home or hospital for mentally or physically handicapped children, as several years ago I and my late husband used to do. I could hardly bear to go into the wards where I saw these physically handicapped children. I could hardly bear their misery, and I simply do not understand noble Lords who talk about the happy lives of these children. I do not know how they know about these things. I do not know how they can venture to say that these extremely mentally handicapped children and physically handicapped children have a chance of happiness in this life.
THE EARL OF DUNDEE: Perhaps the noble Baroness a year ago on television might have seen some striking examples of their activities.
7.4 p.m.
VISCOUNT DILHORNE: Before we get into more argument about the activities of these poor handicapped children, may I say how glad I shall be to discuss the Amendment in my name at the same time as that of the right reverend Prelate? He has moved his Amendment in a charming, ecclesiastical fashion; but of course his object, if one discloses it, is precisely the same as the object of my noble friend. As the Bill now stands, under paragraph (b) you look at the question whether there is a substantial risk of the child being seriously handicapped. You look only at the interests and the case of the child. It comes under paragraph (a) if there is any question of that risk affecting the mother's health. What the right reverend Prelate is seeking to achieve by his Amendment is really to take out paragraph (b) as a separate issue and make it one of the matters taken into account in relation to the mother's health.
There is absolutely no need for that, and the only reason that the right reverend Prelate is doing it is really to seek to get rid in that way of paragraph (b) in its present form. I support his objective, but not his method. In my view, it is without those words absolutely clear that if there is a question of a

1029
woman's health being affected by the prospect of having a seriously handicapped child, that is a factor that the doctors can take into account under paragraph (a), and it is not right to regard that possibility as environment. That is a misuse of the words. And if the right reverend Prelate thinks that the adjective "total" is of such importance before the word "environment", I hope that when he comes to reply he will explain to me what is the difference between "total environment" and "environment". "Environment" really means surroundings. We are not talking about the surroundings of the woman here; we are talking about the risk that the child she has will be seriously handicapped, and if that is likely to affect her health then, under paragraph (a), that is a matter that the doctors can take into account, and rightly.
Therefore, in my view, the Amendment is wholly unnecessary. I agree that it is a matter that should be taken into account. I am against its being specially spelt out in the way that the right reverend Prelate suggests, because I think it is not right to put all that weight particularly on one factor which has got to be taken into account. But the real reason the right reverend Prelate is putting it in that way, as I am sure he will say quite frankly, is to get rid of the consideration of the question of the unborn child by itself, because, as the Bill now stands, you can, under paragraph (a), look at the health of the mother, and paragraph (b), as the Bill now stands, applies only when you can say, "It would not affect the health of the mother, physical or mental; there would be no risk of injury to her to have this child". But you are saying, "Despite that, there must be power legally to take and destroy the life of this prospective child".
As I understand it, that is how the Bill is drawn. I do not think I am being controversial about it. I think that is what the Bill says. I had down an Amendment to alter the language of paragraph (b) because I thought it was far too wide. It talks of a "substantial risk", and the possibility of the child being seriously handicapped. As your Lordships will see, I have put down an Amendment to narrow that, because if you are looking only at the interests of the child, which
1030
you are, under paragraph (b)—you are not looking at the health of the mother under paragraph (b)—can you possibly justify terminating that fœtus because the chances are one in three or one in four of the fœtus turning out to be an abnormal child?
I do not think you can justify that where there is no question about the health of the mother. Where it is a question of the health of the mother different considerations might apply which the doctors will assess. But under paragraph (b) you have to take the position where no question of the health of the mother arises. Then I would say, if you are looking only at the child you have no justification for destroying that fœtus because there is one chance in three that if that child is born it will be abnormal. That is why I would say that the furthest I would go, and would have been prepared to go, is to say that that might be justifiable where it was more likely than not that the infant, if born, would have no enjoyment of life. I tabled an Amendment to that effect in a spirit of compromise, that being as far as I was prepared to go.
I do not think there is really any chance of compromise now. On reflection, I do not think it is right, even then, to say, "We will destroy this child before it is born, because it would be better for the child if it never had been born; for this child has no prospect of enjoyment of life." A great many people, in this House and outside were surprised when the noble Earl, Lord Longford, in his eloquent speech on Second Reading, referred to euthanasia. They did not quite see how it related to this subject. Are not the people in favour of paragraph (b) as it now stands failing to face up to the fact that what they want is a form of euthanasia?—not in the interests of the mother, because there is no question of risk to her health. Are they not saying, "There is one chance in three of this child being born wholly abnormal—a monstrosity. It is not right to take this chance. The child might be a perfectly normal human being, but because there is one chance in three, or one chance in four, that it might not be, it must be destroyed without being born"? Are they not arguing that because they dare not come forward and say, "Wait to see when the child is born

1031
whether it is a monstrosity or normal, and if it is a monstrosity, destroy it"?
If they came before this House or the other House with that argument, I should respect their arguments more, because they would be frank and clear. But that is not what they are seeking to do by paragraph (b), as it stands. What they are seeking to do by paragraph (b) is not to see whether the child is a monstrosity, abnormal, the kind of child to which Lady Gaitskell so eloquently referred, but, if there is any substantial risk of that being the consequence, not to give that fœtus the chance of becoming a normal human being.
Therefore, if my noble friend Lord Dundee presses his Amendment to a Division, I shall certainly support him, and I hope that it will be carried. I shall not move my Amendment because his Amendment meets my objectives. On reflection, I do not think that it would be right to move my alternative wording. I hope that the right reverend Prelate will not move his Amendment, for the reasons I have given. He, too, wants to get rid of paragraph (b). Let us have a clear-cut issue and vote against the inclusion of (b) and then consider the Bill again before Report.
BARONESS WOOTTON OF ABINGER: I do not like to say it, but, if one had to choose, I think I would much prefer infanticide to the provision in the Bill as it stands at the moment—I mean decent infanticide, decently done, immediately, in the case of a monstrosity. Because we have no prospect of getting that legalised, I am very much in two minds as to what we ought to do about this particular clause. I think that on the whole the Amendment in the name of the right reverend Prelate is the one which bridges this gulf most effectively. It does not prevent us, where there is the possibility that a woman is carrying a child with a doubtful heredity, a child which may be born gravely handicapped, from taking that factor into account in deciding whether the pregnancy should or should not be terminated. But it does not involve making actuarial calculations, which the medical profession would find extremely difficult, as to the probability of this event occurring without reference
1032
to the health of the woman. Therefore, failing infanticide, if I may so put it, I feel disposed to support the Amendment moved by the right reverend Prelate.
BARONESS EMMET OF AMBERLEY: Might I join in this debate, as there have been two ladies on the other side who have spoken about this matter? My objection to paragraph (b) is that it brings an entirely new element into this Bill, which was first launched and contrived in the desire for the benefit of the mother and to improve the abortion laws. The question of the deformed child is a quite secondary and additional matter which has crept in. I have a great deal of sympathy with the Amendment of the right reverend Prelate, because obviously he has the same object in mind as the noble Earl, Lord Dundee, and myself in the Amendment which we have put forward.
Surely it would be better that this Bill should relate entirely to the point at issue; namely, the welfare of the mother and an abortion, if that is necessary, for her sake. This paragraph would have been much better dealt with, if required, by an amendment of the Infant Life Preservation Act 1922. After all, it is a quite separate issue. I feel that at present the medical profession—and they have stated so themselves—are not in a position to give a sufficiently accurate diagnosis of the fœtus at the time when it may legitimately be removed to allow us to have a clear conscience in this matter. It is terrible to think that we would sacrifice two, or three, healthy babies because we think—though we do not know—that there may be a deformed child. It puts me in mind of our general outlook in legal matters, that people are innocent until they are proved guilty. Here, apparently, five children are to be judged guilty, as it were, though they may be innocent, for the sake of one. It is almost as if you stood five people in a row and shot them because you could not make up your mind and had not sufficient evidence as to which of them was guilty. It is quite out of any sort of proportion.
Further, we are here putting far too much responsibility on the medical service. It is not fair to ask them to make these decisions when they have already said that at this stage they have not the

1033
means at their disposal. There are people who take the Christian point of view of the sanctity of life, as I do. I am not a Catholic, but I am a Christian. We know that there are humanists who take the opposite view, that a fœtus is not a human being until it becomes viable. But the medical profession has been bound, long before Christianity, by the Hippocratic Oath, and that Oath binds them to try to save life and not to take it unnecessarily. Therefore, we are putting on the medical profession an undue burden, to which they are quite right to object. I should like to see a vote on the Amendment which the noble Earl, Lord Dundee, and myself have put down. Failing that, the right reverend Prelate has the right to put his Amendment first, and I should certainly vote for it. But I hope that in this Bill we shall not mix up the health and the wellbeing of the mother with a totally isolated matter, which is confused, and I think would not bring credit on this House.
BARONESS STOCKS: I should like to oppose this Amendment, and the Amendment in the name of the noble Baroness, Lady Emmet of Amberley. Let us imagine (and one does not have to stretch one's imagination very far, because it is not a very unusual state of affairs) a woman who is perfectly healthy, who may also have several children, who is mentally sound and well balanced, and in no way psychologically disturbed. She becomes pregnant at a dangerous time, in that during her pregnancy she contracts German measles and is told that there is a chance that the child will be born blind or otherwise handicapped. It may be a 5 per cent. chance, a 30 per cent. chance or a 50 per cent. chance—I do not know: I believe that there are differing views as to the actual percentage. Looking at it from the point of view of that mother, she is not going to be psychologically disturbed, but she is going to be very unhappy if she has to go through that pregnancy in seven or eight months' time.
What can she do? Under the present law she can force a doctor to make what is perhaps a difficult decision. She can consult a psychiatrist, and she can put on an act and threaten to be mentally disturbed or suicidal if she has to go through a pregnancy under those conditions. She will doubtless get away with it, and she will have an abortion. We
1034
are living in an age of planned families and, presumably, that woman and her husband have decided how many children they intend to have. What she is doing is not sacrificing one life; she is exchanging the possibility of a good life, a normal life, for a handicapped child, because when she has recovered from her abortion she will have another pregnancy if she wants to increase her family. No fewer children are going to be born as a result.
BARONESS EMMET OF AMBERLEY: Before the noble Baroness sits down, may I put this point to her? No pregnant mother can guarantee that she will have a normal child at any time. Abnormalities occur from time to time in every family, and you cannot completely guard against these. I do not think her argument holds good at all.
BARONESS STOCKS: Of course a mother cannot guarantee that she will have a normal child. But in the circumstances I have mentioned there is a probability that she will not, and that is the probability that she takes into account.
7.22 p.m.
LORD STONHAM: I consider that this subject is perhaps the most important of the whole Bill. These Amendments which we are considering are those about which there is the deepest feeling and the deepest concern. The Amendment moved by the right reverend Prelate the Bishop of Durham has the effect that a substantial risk of abnormality in the fœtus will in itself no longer be a ground for abortion. As the right reverend Prelate said, he is putting it all with the mother.
Whatever the moral effect of the retention of the words in the Bill linked up in the manner the Amendment suggests, I agree with what I understood to be the view of the noble and learned Viscount, Lord Dilhorne, that they would have no practical effect whatsoever. So despite the eloquence of the right reverend Prelate, and his understandable desire to change these words in the Bill, I am bound to say that they would have no effect, because all that he wants to do can already be achieved by paragraph (a). Therefore, if it is your Lordships' desire not to have these words in at all, then the right reverend Prelate does nothing of practical effect. I may not have used

1035
the same words as the noble and learned Viscount, but I take comfort from the fact that I have expressed the sense of what he said.
One other thing should be made clear. The doctors could be in considerable difficulty if paragraph (b) were deleted altogether, and my information is that the British Medical Association is in favour of allowing abortion where there is a serious risk of abnormality of the fœtus; and the Royal College of Obstetricians and Gynæcologists also supports a provision on the lines of the present paragraph (b).
It seems to me that I have been more of a listener than a speaker this afternoon. I think I have heard every word that has been uttered on the last two Amendments, without any intervention at all. But it seems to me that we have been putting our own thoughts, our own feelings in this matter, and have virtually excluded at almost all times the three most important sets of people concerned—first, foremost and all the time, the pregnant woman; secondly, the child; and, thirdly, the doctor. Most doctors are not also lawyers, but in some of the legal discussions on single words which I have heard I have been appalled to think of the difficulties which they would put up for the doctor's understanding. Therefore, on these two Amendments I am going to devote all my remarks to the mother, the child and the doctor.
First of all, no-one can compel a mother to have an abortion. She decides. So many speeches have been made that one would think there was an assumption that a woman was obliged to have an abortion. It is necessary to say that. If the mother thinks she is likely to have a defective child, and she is prepared to accept all that that entails, that is the end of the matter. She should have the child. But if for whatever reason the mother recoils from the prospect, then those who would delete paragraph (b) entirely are, in effect, saying that unless the doctor thinks it will have a serious effect on her physical or mental health she must have that child. I very much doubt whether, if we ourselves had to say that to the individual woman after knowing all the circumstances, we should feel that we could say it. But that is what is collectively being said with regard to this Amendment, and I can only say
1036
that it is an awful responsibility. As I understood the noble and learned Viscount, if Amendment No. 11 to delete paragraph (b) were carried, he would not then think it necessary to move his own Amendment.
VISCOUNT DILHORNE: That is right. If the Amendment in my noble friend's name is carried, I shall certainly not seek, in this Committee stage at least, to move the Amendment standing in my name. Therefore, there is no need for the noble Lord to comment on that.
LORD STONHAM: Nevertheless (I assure the noble and learned Viscount that I am not reading a brief), I think it right to consider this subject in the round, because when I first looked at the noble and learned Viscount's Amendment I thought it was still an attempt to try to cover this point, but only in those cases where it was more likely than not that a child would be born defective. It really is not art alternative at all to the deletion of paragraph (b), because it is only in the very rarest cases that doctors could say, if they would say, that there was a 51 per cent. chance that the child would be abnormal.
VISCOUNT DILHORNE: The noble Lord will appreciate that my argument was that it was only if the doctors could say that, that the termination of the fœtus on the ground that the child would be abnormal—with the mother's health not in the least affected—could possibly be justified.
LORD STONHAM: I quite agree with the noble and learned Viscount. I am not disputing this. I am merely saying that if the cases are so rare of a 51 per cent. chance of abnormality, then it is virtually the same as deleting paragraph (b). I am not arguing about it one way or the other. I am merely saying what the effects of the Amendment would be.
I feel very deeply about abnormal children, particularly mentally subnormal children. In the last 17 years I have had the privilege of working with and knowing a great many of them. For four years I had responsibility for 8,000 mentally subnormal children. Personally, from my own observations, I should find it very difficult to say, except in the case of a very small percentage of psychotics, that any of those handicapped children

1037
were unhappy. They have a limited range of life of course; but certainly, so far as one can see, they are not unhappy. But I should have thought it was quite impossible for a doctor to judge that there was more than a 50 per cent. chance that such a child would be born subnormal.
Therefore, although I think these children are happy, the real point that has to be considered in deciding for or against these Amendments is the position of the mother. The difficulty is not so much when the child is young. In the case of many families that I know, where the parents are now elderly and the child is middle-aged and still living at home, the difficulties are enormous. But suppose there is a mother with a handicapped child, who dearly loves that child and always will, but who is perhaps pregnant again and is alarmed at the prospect of the possibility of another child. Is it right for us to say that, unless one could argue that she was ill, she must have the child?
I think that these are the considerations; and it is not enough to say that these children can be cared for in other ways. All of us are to blame, successive Governments are to blame, in my view, for the fact that these children are the most neglected of the whole community, neglected not by their parents but by us, who are responsible for making the laws and making these provisions. But this is the world that we live in. I do not think a doctor can decide whether an eight weeks' fœtus will have a reasonable enjoyment of life, but I do think that in these matters we ought not to define it too clearly. I think we ought to give the doctor a chance to exercise his professional skill in good faith.
LORD BESWICK: We agreed to adjourn—
BARONESS ELLIOT OF HARWOOD: May I say just two words—
LORD BESWICK: I think there are several other noble Lords who also want to speak, and we had made arrangements to adjourn. I wonder, therefore, whether it would be to the convenience of the Committee if I now moved that we adjourn for one hour—that is to say, that we should return at 8.30 p.m.
Moved, That the Committee be adjourned until 8.30 p.m.—(Lord Beswick.)
[The Sitting was suspended at 7.33 p.m. and resumed at 8.30 p.m.]
BARONESS ELLIOT OF HARWOOD: I was about to make a few remarks just before we adjourned for dinner. I wonder whether I may say a few words now. I want to speak against Amendment No. 10 and against Amendment No. 11. Whether the noble and learned Viscount will move Amendment No. 12 I do not know—I might feel differently towards that—but I am definitely opposing Nos. 10 and 11. I do not quite see how you can separate the feelings or conditions or health of the mother from the subject matter of paragraph (b) of subsection (1). I do not think we ought to cut this paragraph out of the Bill. I think it is important that it should remain in. I do not think one can exaggerate the terrible anxieties and difficulties that come as a result of having mentally defective children.
As chairman of a Children's Committee I have had contact with families which contained one, two and sometimes three or four mentally-handicapped children. In many of these cases the mother would be only too anxious not to have another child. But in the present state of the law, we find many instances of a mother bearing more than one mentally-defective child. This I believe to be altogether wrong. From my own experience of contact with such families I know one cannot separate this particular happening from the health of the mother. Some noble Lords have said that the health of the mother is not involved in subsection (1)(b) as it is worded. But mothers cannot be so separated from their children. One cannot deal with the case of the mother as an entirely separate entity from the case of her giving birth to severely-handicapped or mentally-retarded or mentally-ill children. This does not tally with my own experience and is surely not according to Nature.
I think it will be disastrous if we were to allow paragraph (b) to be deleted from the Bill. It is an essential part of it; it is of vital importance to the family, to the mother and, what is more, to society—because no one can think it is good for the community that one mother should go

1039
on bearing mentally deficient children. I feel myself that this paragraph must be retained. It is in the interests of the community and the mother, and clearly it must be in the interests of unborn children, since no one could wish a child to come into the world very severely handicapped, either mentally or physically, in the way in which we know from long experience is often the case. Therefore I hope that we shall retain this paragraph. I shall vote against the Amendment of the right reverend Prelate the Bishop of Durham, and, if it is pressed, I shall vote against Amendment No. 11.
LORD GRENFELL: It is natural that I should think very carefully over these Amendments, being personally involved both in my private life and as chairman of a group of hospitals for mentally handicapped children. I have thought very carefully through to-day, and for the last few days, trying to make up my mind about the right course to take; and I have come to the firm conclusion that the right reverend Prelate has the right Amendment, as it links the abnormality with the mother and—dare I say it?—with the father, who has rarely been mentioned in these debates, and with the environment. I could not vote for the Amendment in the name of my noble and learned friend Lord Dilhorne, as in my experience it is impossible to say that a child who is born mentally handicapped or abnormal in any way will not have a happy life. From my experience in the hospitals, and in my private life, I have seen children who are mentally abnormal but who, I am delighted to say, are exceedingly happy; so I could not vote for that Amendment.
After careful thought I believe that we should have something in the Bill relating to subnormality, not only because I believe that the Amendment of my noble friend Lord Dundee would kill the Bill, but because I think that if parents could be sure that their child would be mentally handicapped they would have a right to an abortion. For these reasons I beg the right reverend Prelate to take his Amendment to the vote. With many years experience of this question, I feel that on the few occasions when it is possible for doctors to tell that a child will be abnormal we can at least leave it to their good judgment to tell the parents, and
1040
they can decide the issue between them. That is my firm conclusion. I feel sure that the right reverend Prelate's Amendment is the best we can do. I hope that he will press it, and I sincerely hope that the Committee will support him.
LORD BYERS: I rise to oppose what the noble Lord, Lord Grenfell, has said, although he has spoken sincerely and I am sure with the full respect of the Committee. I should like to support the noble Baroness, Lady Elliot of Harwood. She spoke to the point. I implore the Committee to consider seriously what we are in danger of doing. All these Amendments have been discussed with sincerity, but the effect of each one, as was made absolutely clear by the noble Lord, Lord Stonham, would be to weaken and narrow the Bill. This is the important point. No matter how sincerely we may feel about this, the Amendment in the name of the right reverend Prelate does nothing which cannot be done by paragraph (a). We ought to realise that, however, much we dress it up, it is nothing except a form of words. It denies the right of a mother to have an abortion if there is a substantial risk (as the Bill says)
"that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped",
unless this can be tied in with the health of the mother. This is a very important point. Amendment No. 11 comes absolutely straight to the point with no beating about the bush at all, as one would expect from the noble Earl, Lord Dundee. The chance of handicapped children being born will be increased if we take paragraph (b) out of the Bill.
In my view, both these Amendments are cruel ones, weakening and narrowing the Bill. Those of your Lordships who have had experience of the anxieties of young women—women under the age of 30—know that they are really worried when they get German measles at a certain time during pregnancy, and realise that it is cruel to favour something of this sort which weakens the Bill in this respect. These Amendments are cruel because they introduce a prohibition on the doctor, whereas up to now a liberally minded doctor has been able to interpret the law as he thinks best for the mother and the family. I would plead that these Amendments should be withdrawn and that the

1041
Bill should be allowed to go forward as it stands. We are in grave danger of doing something absolutely wrong. I do not believe that the right reverend Prelate and the noble Earl would wish to do that, and I can see that in two years' time, if these Amendments go through, they will be the first to regret it.
BARONESS WOOTTON OF ABINGER: I am surprised that the noble Lord, Lord Byers, takes this line, because it seems to me perfectly clear, taking the German measles case, that this is pre-eminently a case which would be covered by the Amendment moved by the right reverend Prelate, a case in which the extreme distress and anxiety of the mother is deleterious to her own mental and maybe physical health.
LORD BYERS: It was the noble Baroness who moved an Amendment proposing that it should be a prolonged injury.
BARONESS WOOTTON OF ABINGER: The situation has now changed—I must accept the decision of the Committee that it has changed. In the present situation, I think it is important that we should not open the door more widely. The noble Lord, Lord Byers, spoke of the risk of the handicapped child being born. We all know that the medical profession can seldom prophesy even 50–50. It is more common for them to prophesy three favourable to one unfavourable result. If we accept the Bill as it stands, we are committing ourselves to saying that it is worth while destroying, where there is no injury to the health of the mother, the possibility of two or three chances of a normal child against one or two of an abnormal child. I think that it ought to be put dispassionately and calmly that these are the facts of the situation.
VISCOUNT WAVERLEY: Doubts have been expressed on various sides of the Committee about whether we in the medical profession are able to produce figures of any degree of exactitude. Unhappily, in a large number of cases we cannot, but there are circumstances in which we undoubtedly can. I support the Amendment of the noble Earl, Lord Dundee, to eliminate paragraph (b) because I firmly believe that the matter can be covered under paragraph (a), under the mother's mental health. But it would be
1042
much easier for the doctor to be able to use this clause and tell a mother that such and such was the actual risk of her child being affected. Then the mother would be confronted with the situation in which most mothers—not all, because women differ greatly in their reactions—would decide that they genuinely and honestly felt that they could not go on with the pregnancy.
May I give your Lordships the figures we have available? In the first six weeks rubella carries an over 50 per cent. risk of abnormality, but this varies with the strength of the virus, though this is not known at the time. After the first three months there is really hardly any risk at all. After the first six weeks, but within the first three months, the overall risk is 14 per cent. It falls rapidly after the first six weeks. Against this, I think it is only fair to tell your Lordships that it is virtually certain in the foreseeable future—certainly I hope within five years—that rubella will no longer be a problem, because it will be possible to carry out maternal immunisation. Thalidomide, and drugs having what are known as tetragenic effects of that kind, also carry a more than 50 per cent. risk of fœtal abnormality. One naturally hopes that the Dunlop Committee on Safety of Drugs will prevent these from getting through their net in the future, but that cannot be guaranteed. So this, too, would be a situation.
There are certain sex-linked genetically determined defects which carry a 50 per cent. risk. Hæmophilia, in the ordinary way, affects only males. So it would be necessary to have intra-uterine sex determination carried out to make certain the fœtus was a male; but this cannot be done with great precision at the moment, although it will certainly come very soon. There are certain of the muscular distrophies, so called, which carry a 50 per cent. risk of repeating themselves. And a disease known as Huntingdon's Chorea, which is a disease of involuntary movements and increasing mental deficit, and eventual dementia, also carries a 50 per cent. risk. I said that hemophilia normally affects men only, and this is true; but every now and again a woman may have hæmophilia, and if she should happen to marry

1043
a hæmophilic man and they had a child, there the risk would be 100 per cent. Then there are certain biochemical disorders with mental defects, phenylketonuria, galactosæmia so-called, which carry 25 per cent. risk. I thought it might be helpful against the background of this debate to give those figures, because these situations, to my mind, if they existed, would make it virtually certain that the mother would be justified in being aborted under paragraph (a).
LORD SOMERS: I should like to add a few words in support of what was said by my noble friend Lady Elliot of Harwood. I was quite astounded to hear my noble friend Lady Emmet of Amberley talk of paragraph (b) as isolating the children from the mother. How can you isolate the children from the mother? It is the closest relationship that exists in human experience. If the children are severely affected, then it is more than likely—in fact, it is practically inevitable—that the mother will be affected mentally. I know it is a fact that one cannot tell in more than about two in 100 cases whether a child is going to be abnormal in any way, certainly in the early stages. Therefore, this paragraph would be brought into use only rarely. I think that those who speak of the sanctity of life should stop to think a little about the effects of that life on those who have brought it into the world and who may have to live with it. I heard not long ago of a young couple who were very happy at just having had a young daughter, and they were asked: "Is this your only child?" The mother's face clouded for a moment, and she said: "No, no. We had one child, but he had to be rushed off to hospital at once, and there he will spend the rest of his life." That is a pretty severe blow to anybody. Even worse is it when perhaps the child is mentally abnormal and has to be cared for by the parent to such an extent that the other existing children are neglected.
A great deal of argument on sociological grounds has been made this evening about the question of the existing children. I agree there is not a great deal to be said on that question under this Bill. But, certainly looked at from this point of view, looked at from the point of view of the fact that the other
1044
children will be neglected, because the mother has to look after and devote her entire time to an abnormal child, this question seems to me much more potent. I therefore sincerely hope that the Bill will go through complete with paragraph (b).
BARONESS EMMET OF AMBERLEY: Before the noble Lord sits down, may I say that I do not know what proof he has that, because a mother has an abnormal child, she neglects the other children. That is not my experience.
LORD SOMERS: No, indeed, it may not always be the case. But if the child is so abnormal that it needs constant attention, it may in some cases occur. I do not say in all cases, but it is possible.
LORD GRENFELL: May I just say for the Record that my noble friend has made one or two statements and I think, on reflection, that he should not have said that parents of mentally handicapped children are mentally disturbed. I think he said that. The fact is that I know many, many of these people, and they are not mentally disturbed. They adore their children, and are doing everything they can to ensure that they have the best possible life, both from Government help and from the people who are so kind to them. They are not mentally disturbed. They are very fine people who know exactly what they are doing. They know what they are going for, and they are going to get it.
8.54 p.m.
VISCOUNT BARRINGTON: I find it extremely difficult to speak on this subject, which is the most important and the most moving of the subjects. I should like particularly to say the very few things I shall say to the noble Lord, Lord Segal, who is, of course, an authority on these things. My object is really to support the line that has been taken by the noble Lord, Lord Grenfell, without having been through any such experience myself, except that I have seen certain cases of abnormality. I have taken a certain interest in it. I think it would be better if I confined myself to quoting other people, first of all on the point of statistics.
It is hardly necessary, after the speech of the noble Viscount, Lord Waverley, to

1045
mention that, but I have had to-day a letter from a gynæcologist, whom I do not know. I know four eminent ones now, who are in a society I am connected with. This is a non-Roman Catholic gynæcologist living in York. His name is Mander. I have made inquiries, and he is a man of the highest reputation. I should like to read one of the sentences he says about this Bill, which he heads, "The eugenic clause". He says:
"This is the most disturbing aspect of the Bill, and is medically quite unjustifiable. No obstetrician, faced with a Mongol at birth or say ten weeks before birth, would envisage destroying it rather than caring for it. The same applies to a spastic baby, or a rhesus baby (with its known high risk of permanent brain damage in the severe case) or the thalidomide baby, or the accidentally irradiated baby, or the deaf baby from rubella. Even worse, these conditions are not predictable and some not yet diagnosable before birth so that the condition is a statistical risk implying the destruction of more normals than abnormals. This clause worries a large number of us more than any other."
May I now go on to one general point which has arisen out of this discussion, and which to me is an important one because it raises the whole question of whether or not life is worth living. To my mind, every child is born with at least two handicaps, one of which I think is unfair and one which we have to presume, if one believes in a planned and fair universe, is fair. The handicap which is fair is a conscience. I think almost everyone is born with a conscience in some form or another. I know from experience that conscience is a very easy thing to kill, and one is much happier when one has killed it. I imagine that that was particularly the case if one lived in a place like Nazi Germany. Without a conscience, gradually one can tell oneself that life is really not so bad; and one can live a much happier life without a conscience. I do not know whether any noble Lord would dispute that. But the point about the conscience is not that it makes one happy, but that it makes one human.
The other handicap, which I say is an unfair one on the unborn child, is of course its name. It is called a "fœtus", which gives it a very bad start, because we all think in terms of names. I have made the point before, I believe, that "fœtus" occurs in the medical dictionary between a disease called "œtor", or something like that. It suggests all sorts
1046
of ideas of fœtidity and monstrosity, and what I believe it means is the present case, roughly, of which the past case in Latin is "fui" and the future is "futuris". "Futuris" is something which is going to happen, and the fœtus is something which is happening.
I believe that that is an important point, because so many people think of the unborn child as something which does not in fact have life. I measure it by the words in this Bill. Sometimes the fœtus is called a "child" and sometimes it is compared with existing children. I find it difficult to believe that it does not exist and live. I have probably talked for too long already, and this is not the time of night to ask for some sort of evidence for the fact that not only is it a human being but that at a very early age it looks like a human being, which I believe is why this particular operation is so extremely unpleasant to the gynæcologists who have to perform it, and to the nurses, who are not often allowed to see it. I have been told by a doctor (who certainly was not a Christian as a young man) that it is the only operation he knows which, instead of becoming accustomed to it and making jokes about it, the medical practitioners find becomes more and more unpleasant, because it is doing—and clearly doing—the one thing that doctors are not intended to do.
If a human being has any purpose in this world it might be said that the easiest way of making him happy is to treat him, as we may all be treated soon, by having our consciences extracted. We are told that memory is a chemical. We may be told: "Conscience is a chemical. Have it taken out." There are all kinds of ways, by drugs and other things, of making people happier and they are certainly justified in short cases, but in all this I go back to a point I made the first time I spoke in this House. I do not believe we know enough to know who would be happier alive or dead. I think it was the President of my College at Oxford who was interviewed by the Ambassador of the Emperor of Japan, whose son was to go there, and it was pointed out that he was a very important person; in fact that he was the Son of God. The President of my College said "That is quite all right. We have the sons of many distinguished persons here".

1047
If my life had to be taken without trial and against my will, I cannot think of any three people in this House whom I would more trust to do it than the noble Baroness, Lady Summerskill, the noble Lord, Lord Segal, and the noble Lord, Lord Platt. They are, in the best sense of the word—I am not being sarcastic—very distinguished persons, but they are not the three persons of the Trinity. And it is on these grounds that I think we ought to be chary about taking life when we do not know it is not viable.
9.3 p.m.
LORD SEGAL: I had not intended to intervene in this discussion, but since my name has kindly been mentioned by the noble Viscount, Lord Barrington, I would only say this. I am quite convinced, after spending a good part of the last three years working on behalf of mentally handicapped children and their parents, that every parent of a mentally handicapped child would be inclined to vote in favour of the wording of this Bill as it now stands and to vote against any of these three Amendments.
LORD BOOTHBY: I want to make only one remark. I think this discussion that we have had, which is of extreme interest, can be summed up in a sentence: the fewer babies that are born into this ghastly world, the better.
LORD LEATHERLAND: The noble Lord, Lord Boothby, speaks for himself, of course. Let me speak for myself. The noble Viscount, Lord Barrington, quoted to us a statement from a gynæcologist which was in support of the line he takes in connection with this Bill. There are, of course, many other gynæcologists who could be quoted in support of my noble friend, Lord Silkin. The noble Viscount told us that his gynæcologist said this was something that worried him very much indeed. Of course, it worries us all; we are not entering into this matter in any light-hearted spirit. It is one of the greatest tragedies of human existence. The noble Baroness, Lady Emmet of Amberley, said she spoke as a Christian. So do I. I am as mindful of the sanctity of life as anybody in this Chamber. But I recall that we are the people who participated in two world wars, who participated, either actively or passively, in the slaughter of scores of millions of people; and we were sent into
1048
our battles with the prayers of the Bishops ringing in our ears. So please let us keep a sense of proportion when we are speaking not in terms of scores of millions of people slaughtered but in terms of a few hundreds, perhaps a few thousands, each year.
I am not one of those polemical abortionists. I am a normal pampered husband, four times a happy grandfather—quite a normal kind of person. I feel some abhorrence at the possibility that if these Amendments are carried we shall be countenancing the bringing into the world of children who are destined to be malformed from the moment of their birth and who are likely to be a great problem and a great worry to their parents. I am not disputing for a moment statements that have been made on behalf of parents who say that they love those children. I know they do, but I know also the other side of the question. The girl that my son married—he is not sitting on the Steps tonight, so I can go into family affairs—was for some years a nurse in a hospital where these little malformed children are cared for. I always thought that she was doing most noble work. But these were little children in respect of whom the parents had said, "We do not want to continue caring for them, no matter how much we love them. Let us get them off our hands."
Paragraph (b) is one of the main points of this Bill. We have already passed two Amendments which have struck at some of the important clauses of the Bill. But I think that everybody has brought a most human point of view to bear on paragraph (b). Those of us who are lined up with the noble Lord, Lord Silkin, feel that this is one of the main points of the Bill, and that to delete it would strike at the heart of the whole of this reform of a cruel law, a reform which we want to see brought about.
The noble and learned Viscount, Lord Dilhorne, has told us that in certain eventualities he may move the Amendment standing in his name. I do not like that Amendment. It says that you shall conduct this operation only if there is a 51–49 chance of the child's being deformed. I think that is going to be cruel to the expectant mother. If I may bandy words with the noble and learned Viscount, which I hesitate to do, I do not

1049
like that expression of his which talks about "reasonable enjoyment of life", because those of us who have lived in villages have seen that sad institution, the village idiot. That young boy is usually the happiest person in the village. He may not be able to appreciate some of the niceties of modern civilisation, but he is also unable to appreciate the worries that curse so many of us; and really, I should not like to be bound by the words "reasonable enjoyment of life" that the noble and learned Viscount includes in his Amendment.
There has been reference to German measles. Having quite recently become a grandfather once again, I remember that in the district where my daughter was living there had been outbreaks of German measles. I do not know how much my daughter worried during those nine months, but, believe me, I worried very much indeed. Fortunately, everything went well; but this menace of German measles exists. We have heard from one of the learned medical authorities in this House that shortly some treatment will be devised that will protect expectant mothers against the consequences of German measles. But that remedy is not here, and if this Bill passes into law, if it bridges the period between now and the time when that remedy will be available, it will have done good work.
We were all shocked by the results of the thalidomide treatment which was given to so many young mothers-to-be. And it is not only thalidomide, for many new drugs are being given at present for all kinds of illnesses, some of which are peculiar to expectant mothers and some of which are of general application. We never know which one of those drugs will turn out in a year or two's time to be one of those drugs that has the same effect on mothers-to-be as thalidomide had. If an expectant mother has been taking some drugs the side-effects of which she does not know, or if she has been exposed to German measles, it is a sin to compel her to carry on for nine months with the threat hanging over her that her baby may in some way be abnormal.
We are not dealing here in medical science with something which is exact. There is nothing sure about medical science as to the present state of knowledge or as to future knowledge. We have
1050
even had during this Committee stage two of the most eminent doctors in the country disagreeing fundamentally on some provisions of this Bill. I think that all the Amendments which have been discussed this evening have had the intention, in effect, of weakening the major premise of this Bill. If I may quote paragraph (b), it says that an abortion shall be permitted where there is
"a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."
In view of that, I feel, as one of those normal human beings who is not a "crank", that we should give the woman the benefit of the doubt.
9.12 p.m.
THE EARL OF PERTH: I am worried about one or two things. I think that the House has possibly been led astray, and I seek guidance. For example, the noble Baroness, Lady Elliot of Harwood, said that she was going to vote against the two Amendments which are being moved. I understand that the noble and learned Viscount, Lord Dilhorne, has said firmly that he is not going to move his Amendment. The reason the noble Baroness gave, I understand, was that if a mother had had two or three abnormal children who were mentally handicapped and then found that she was having a fourth child, if these Amendments were carried, she would be unable to have an abortion. I should like to ask—perhaps I might ask the noble Lord, Lord Stonham—whether this is true. As I read subsection (1)(a) surely such a case would be, or could be interpreted, as one of injury to the mental health of the pregnant woman. If that is the case, the ground which I understood Lady Elliot of Harwood to give for refusing to support the Amendment is not a good one. I should like to ask the noble Lord, Lord Stonham, whether I have correctly understood the position on this point.
LORD STONHAM: May I interrupt the noble Earl to tender my sincere apologies that I did not hear the first words of his reference to myself. I am not therefore clear as to the question which he addressed to me.
THE EARL OF PERTH: I apologise for having to repeat this. What I said was that I understood the noble Baroness,

1051
Lady Elliot of Harwood, to give as her ground for opposing the Amendments the fact that if the mother had had three or four mentally deficient children and was then pregnant a fourth or fifth time, if the Amendments were successful, she would not have grounds for an abortion; whereas if I read subsection (1)(a) correctly, even if paragraph (b) is removed, there is still ground, under the provision relating to injury to the mental health of the pregnant woman, for such an operation to take place.
LORD STONHAM: I can give a categorical answer to the noble Earl. If that mother could convince the doctor, or if the doctor was convinced, that the birth of any child likely to be abnormal would affect the mother's health to such a degree that it would be unwise to continue the pregnancy, then the pregnancy could be lawfully terminated without paragraph (b). But if the doctor thought it would have no effect on the mother's health, then if paragraph (b) were removed from the Bill there could not be a lawful termination of the pregnancy.
THE EARL OF PERTH: I thank the noble Lord very much. I think his statement helps on one point. Now I should like to ask yet another question of those who are supporting the Bill at the present time and are wishing that it stands in its present form. Paragraph (b) says:
"that there is a substantial risk that if the child were born it would suffer from such … abnormalities as to be seriously handicapped."
We heard the noble Viscount, Lord Waverley, give some specific figures on the probabilities in the case of a pregnant woman who has caught rubella. In the first six weeks the chances of deformity are very great, and in the next six weeks the chances are one in seven. Is one in seven a substantial risk, and would it be the belief of those moving this Bill that you should kill six children to ensure that the seventh was not born? Is that "substantial", or what is? It is all very well for people to say that the doctor can decide this. I do not think a doctor can decide what is "substantial". I think it is for the movers of the Bill to help us.
Then, apart from "substantial risk", there are the words "seriously handicapped". What is "seriously handi-
1052
capped"? Is the probability of a club foot "seriously handicapped"? I believe that these are matters about which the movers of this Bill have a responsibility to tell us, and if they cannot satisfy us on these points at this stage the Amendments should be pressed.
LORD SILKIN: If I can satisfy the noble Earl, will he oppose the Amendments?
THE EARL OF PERTH: Yes, I shall, but for quite different reasons. This should be clarified for the Committee generally. I think the noble Lord knows my own personal and quite different reasons, and that is why he asked the question. But my answer is, Yes.
LORD BYERS: May I ask the noble Earl whether he voted for the Bill on Second Reading?
THE EARL OF PERTH: No, I did not.
VISCOUNT DILHORNE: I voted for the Bill on Second Reading and I raised these questions. I am very glad that the noble Earl, Lord Perth, has raised them now because, before we let paragraph (b) into the Bill, we surely ought to know what it is intended to cover. If "substantial" is so vague, as I think it is, that no one really knows what it is intended to cover, at least we can ask the promoters what they intend it to cover. Then we can see if the wording is apt. I raised on Second Reading the question of what is meant by "seriousiy handicapped" and we ought to be told about that. But if the noble Lord, Lord Byers, wants to know whether, having raised these questions, I voted for the Second Reading, the answer is, Yes, because I hoped to see this Bill improved.
VISCOUNT NORWICH: There was one point and one point only which I wished to make, although since the noble Earl, Lord Perth, spoke a moment or two ago I feel I must add one more. Even if the probability of a child's being born mentally or physically disabled is as low as one in seven, it is terribly misleading to say to ourselves, "We are killing six innocent children." We are not. We are possibly killing one innocent fœtus, which is not the same as six innocent children. We are not even doing that, really, because what we are doing if a woman has had rubella is allowing a high probability

1053
of her immediately starting another pregnancy which will not carry with it the same risk as the previous one. In fact, all we are doing is ensuring that she will have a pregnancy which will not be darkened and overshadowed by a totally unnecessary risk.
The only other point I want to make now is one which I recognise has already been made, in a slightly different form by my noble friend Lord Byers. It is that all three Amendments before your Lordships this evening have the same basic effect. Any single one of them, if passed, must inevitably result in there being more maimed and more handicapped children in the world from the moment this Bill is passed and into the indefinite future. Any one of your Lordships who votes for any of these three Amendments will, to some extent, when he sees a maimed or handicapped child, have that child, in some minute degree, on his conscience. This is a responsibility which I personally do not wish to accept, and I shall therefore vote against all three Amendments.
VISCOUNT DILHORNE: If I may say so, I shall not have it on my conscience. I think that is a complete nonsense and an absolute non sequitur.
LORD SILKIN: I think it is perhaps time the promoter had a word. Some noble Lords have made four, five or six speeches on these Amendments, and it seems that if we are going to get through this in reasonable time, then we must ration our own speeches. The Amendment that is actually before us is the Amendment of the right reverend Prelate the Bishop of Durham. That is the only Amendment that we have actually before us, although we have agreed to discuss Amendments Nos. 11 and 12 at the same time. They, however, are not formally before us.
What Amendment No. 10 provides, or is intended to provide, is this. I am not sure that it actually provides it, for the wording is not very clear and I believe may be defective, but that is not the point; the right reverend Prelate has made quite clear what he meant by it. What he meant by it was that there should be no abortion in the case where there is a substantial risk of the child being born defective unless it is going to affect the life or health of the mother.
1054
I would agree that in the great majority of cases it will affect her. There will be the apprehension of the mother; the fear that she is going to give birth to a child of that kind—and, of course, it is a fear which will in most cases have some justification behind it. She may have had several children of that kind already; there may be something in the family of that kind; it may be hereditary, or there may be other reasons which make her fear. If in fact that fear has a physical or mental effect on her, then I agree that it is already covered. But what we are seeking to do in this clause is to cover those cases where two doctors are not in a position to say that it will affect the life or health of the mother. The right reverend Prelate is saying that in that case the pregnancy must go through, and that there can be no abortion. That is the difference between us.
Of course, behind it all is the basic assumption that the fœtus has life, and that it has life even from the very start. Even among the right reverend Prelates that is not accepted in all quarters. Some say that that is so; some say that it is not. But, generally speaking, I think most people will agree that there is not a case for saying that the fœtus has life right from the time of conception. There may be periods when one can say that it becomes alive, but I would say there is no evidence that in the normal period during which an abortion takes place—say, 12 to 14 weeks—the fœtus has life, consciousness or anything else. Therefore to say that we are destroying life when we carry out an abortion is in my view—and it is just my view—a fundamental error, and quite misleading, because you then introduce the concept of murder.
In fact, this argument has been used on a number of occasions. It has been said that you are taking four or five lives (though in my view you are not taking lives at all) because of the danger of one life being born in the conditions that are laid down in the Bill. So I feel that the right reverend Prelate has not made his case. It is not that he objects to an abortion being carried out because of the danger of a child being born in the conditions in subsection (1)(b). He has no objection to that. What he is concerned with is that at the same time it should have an effect on the life and health

1055
of the mother. The principle remains the same.
I want to put one or two facts. I think this matter has been argued at such length and in such detail that there is not much more that I can add. But I will say—and the noble and learned Viscount will not like it when I repeat it—that this has been discussed in another place for many hours. There is really nothing more to be said. They have come to a very firm and definite conclusion about it. We have to be very careful of our ground if we are to differ from the other place—
SEVERAL NOBLE LORDS: Why?
LORD SILKIN: —and kill the Bill. And that is what we should do if this Amendment were passed. Last May there was a National Opinion Poll in which 80·5 per cent. supported this particular provision in the Bill. I know that you can ridicule opinion polls—especially when they are going against you, although you are glad to use them when they are on your side—but 80·5 per cent. is a very substantial majority. May I say that the votes of the men and women in the poll were about equal.
The noble Earl asked questions about the wording of the provision—what is a "substantial risk"? Is it one in three, or one in four? I am not a mathematician—at least, not now; I used to be. It is difficult to evaluate these things on probabilities but I would say that a risk of one in seven or one in eight is not substantial; I would say that one in three or one in four might be a substantial risk. It would be for the doctor to decide. He would have all the facts before him. He would have discretion to agree in a particular case that there is a substantial risk.
VISCOUNT DILHORNE: I hope the noble Lord will not mind my interrupting. This is quite important. Is he saying that the clause is so drawn that although he thinks that only one in three is a substantial risk some doctors might take this view and others in other parts of the country are entitled to take the view that one in seven is substantial. If that is so, then the clause is not very satisfactory.
LORD SILKIN: I would say that if the doctor was able to evaluate a risk of
1056
one in seven, he would not be justified in calling that a substantial risk.
BARONESS GAITSKELL: May I interrupt my noble friend? I should like to ask the doctors in this House whether they do not consider that one in seven is a substantial risk. They certainly considered, so far as the Pill is concerned, that a 3 in 100,000 was a risk worth thinking about.
LORD SILKIN: My noble friend is even more extreme than I am. But my own view is that a risk of one in seven would not be substantial.
9.30 p.m.
LORD BOOTHBY: But, my Lords, we have a doctor in the House—Dr. Summerskill. Cannot we have her opinion?
THE EARL OF LONGFORD: May I interrupt for a moment?—not on the merits of the subject, but to say that I think it is out of order for anyone to ask a question of someone who is not addressing the Committee. With great respect to the noble Lord, Lord Boothby, the noble Lord, Lord Silkin has the Floor.
LORD BOOTHBY: Yes, but the noble Baroness knows the answer.
LORD STRANGE: And there is a doctor in the House sitting near to me.
SEVERAL NOBLE LORDS: Order!
LORD SILKIN: They have all had their say, and some of them, as I have said, have spoken half a dozen times.
VISCOUNT DILHORNE: I hope that the noble Lord, Lord Silkin, will not mind if I put a question to him on this.
LORD SILKIN: The noble and learned Viscount, Lord Dilhorne, is the worst offender.
VISCOUNT DILHORNE: I hope I am not. I am not asking other noble Lords to answer questions; I am asking what the Bill is intended to do. The noble Lord, Lord Silkin, is the sponsor of this Bill and he has given his own interpretation. What I want him to say, quite frankly, as sponsor of the Bill, is what risk is this Bill intended to cover?
LORD SILKIN: I would give the doctor a good deal of discretion as between the kind of risk that I have said

1057
is not a substantial risk and something more. I cannot put it higher than that. I would say that one in seven is not a substantial risk: that is my intention and my belief. Anything higher than that might well be a substantial risk, but the doctor would have to consider each case on its merits. For instance, one might even say that where a woman had given birth to three handicapped children, such as is contemplated by the Bill, nevertheless, the risk of the next one being the same is one in seven, or one in eight. Or, where there is a family history, a doctor might very well say that the risk is not more than one in seven. Nevertheless, I feel that in that case he would be fully justified in agreeing to an abortion. It would depend on the circumstances of the case.
I think one must allow a certain amount of elasticity in this. The noble Earl asked (I am trying to get him on my side now) how I would define "seriously handicapped"? On the spur of the moment I would say that a serious handicap is a handicap such as would make a person incapable of carrying out any normal activity. I do not know whether your Lordships saw on television the other day a programme depicting a day in the life of "James Egg". It was an extract from a play being produced at the Comedy Theatre at the present time. "James Egg" is one of the children we are talking about, and "James Egg" was shown on television. It was a most terrible sight. I think it was shown on Monday, but I have still not got it out of my mind. It concerned a child of three or four who had no brain at all. He looked normal but was crying the whole time, day and night—just crying; and almost driving his mother and father mad. Yet the mother says she can "take it". She is not a woman who would be covered by that. This was not a propaganda film; it was shown in order to give us an idea of what the play is like. I would say that that kind of child is seriously handicapped.
Years ago I was chairman of a committee of a hospital at Margate for children of this kind. Some of them had been lying on their backs for many years and were never able to move. They were suffering from various defects. I would say that children like that are seriously
1058
handicapped. There were something like 100 of them at that hospital. I wondered what happened to them when they left. I would say that a child who is incapable of thinking or doing anything for himself is seriously handicapped. That is the kind of children one has in mind. There is really nothing more that I can say. I hope that your Lordships are in a position to deal with Amendment No. 10 and dispose of it, one way or the other.
LORD CARRINGTON: I wonder whether I may say one word. I do not think that the noble Lord, Lord Silkin, can accuse me of having spoken a great deal on this Bill. I am inclined to agree with him about this Amendment. I say this with all frankness to him. I wish he would stop saying that, because the House of Commons have discussed something in this Bill for four or five hours, and have decided on a particular course of action, we in this House are not entitled to take our own view. This is a Private Member's Bill. This is a Bill on which we all have to make up our own minds how we shall vote, and it is quite a wrong argument for a promoter of this Bill to say that unless we take a certain course of action, this Bill will not become law. I hope that your Lordships will take no notice of this argument and will vote according to your consciences.
LORD SILKIN: I am glad that the noble Lord has raised this point, because it raises an interesting question as to what is the function of this House. Is it primarily, as has been the case right through this Bill, to go into every single Amendment that has been moved in another place, which has been discussed for hours and days there—or are we a Revising Chamber? As I understand the function of a Revising Chamber, it is not to do the work of the other place all over again, particularly in cases where they have literally spent days on particular Amendments. I am not saying that this is conclusive, but I do say it is a fact that we ought to take into account.
LORD CARRINGTON: I do not think the noble Lord is at all right about this. Certainly this House has a definite course

1059
of action which it should follow on Government legislation, for which the Government have a mandate and for which they have been elected, but a Private Member's Bill puts this House in an entirely different position. None of the Members of another place were elected to decide what was going to happen on an Abortion Bill and their view is no more important than that of any Member of this House. I think that the noble Lord is quite wrong in what he is suggesting.
THE LORD BISHOP OF DURHAM: I am sorry that to some noble Lords it seems that I was beating about the bush. This is only spelling out in words what the noble and learned Viscount, Lord Dilhorne, said in calling my speech ecclesiastical. It seems to me that the present Bill is so direct as to fail to be incoherent and to separate the mother from the fœtus and then to decide to do something to the mother to the second fœtus, which does not seem to hang together at all. If I can use a different metaphor, I have tried to grasp the nettle. Here we have an extremely complex problem. What I have tried to do, helpfully or otherwise, as some may think, is to try to unite sensitivity and compassion with the broadest kind of social concern by focusing the whole attention on the mother.
The noble and learned Viscount, Lord Dilhorne, and the noble Lords, Lord Stonham and Lord Byers, were perfectly correct. Certainly I do not want to decide the matter on the question of the unborn child by itself. I want to unite the child and the mother. The noble Lord, Lord Stonham, said I put the mother first, the child second and the doctor third. Rather, as the noble Baroness, Lady Elliot of Harwood, said, I put the child and mother together.
Then comes the criticism that this Amendment is not necessary because it is covered by the word "environment". I think that that would have been a better argument if the word "total" had been included before environment, if total had the meaning which the noble and learned Viscount gave to it earlier of "all relevant circumstances". I think that more than ever we need to spell out what we desire, and that this Amend-
1060
ment is still necessary, to avoid quibbles and by being explicit about the matter, helping a doctor's conscience.
Does all this come to cruelty? With respect to the noble Lord, Lord Byers, I find it difficult to see where the cruelty comes in. I cannot see that it is cruel to the child, tragic and sad though he or she is when he or she is born. Like other members of this Committee, I have spent days, and sometimes many days, in the company of deformed and defective children. It is difficult to know what they are feeling and thinking, and there is a tremendous sadness when we are with them. But I find it difficult to say that it is cruel to have these children alive.
LORD BYERS: May I ask the right reverend Prelate, in order to clarify this matter, whether, if his Amendment is passed, I am right in saying that a doctor will not be allowed to terminate a pregnancy if there is a substantial risk of a handicapped child being born but the mother will not suffer serious injury mentally or physically? If that is so, I cannot see how he does not say it is cruel to the mother.
THE LORD BISHOP OF DURHAM: If it is cruel to the mother, then presumably, being cruel to the mother, it is having an adverse effect on her, and it is in fact going to affect her physical and mental health. That is the point I was coming to. If, indeed, it is going to be cruel, I think her case is covered. If, in the phrase noble Lords have used, it is a threat hanging over the mother if she is overshadowed by risk, well, here is the case.
LORD BYERS: Could we get this right? Is the right reverend Prelate saying that cruelty is the same as physical or mental injury?
THE LORD BISHOP OF DURHAM: No. What I am saying is that cruelty does cause and result in mental and physical injury. Anyone who has had to do with families where the husband has been cruel to the wife should know that cruelty inevitably results in physical and mental injury. That is the case I am trying to make out.
The noble Lord, Lord Silkin, raised, if I may say so, one of the clearest issues

1061
that has been before us to-day when he said that the assumption behind my argument was that the fœtus had life. With great respect to the noble Lord, Lord Silkin, I do not use that argument at all, and it is just about as worthless as he himself thinks it is. I do not say that my argument depends on the fœtus having life. I do not want to bandy about words like "murder". My whole case rests on the fœtus having rights; the fœtus having rights as the correlate of the mother having the duty, broadly, to bring the fœtus to birth. I take it that we all recognise that the mother has a duty to bring the fœtus to birth. In such a case, it seems to me that, because the mother has a duty to the fœtus, the fœtus has rights. I do not talk about its life; I think that is semantically as scandalous and problematic as things can be.
LORD SILKIN: Could the right reverend Prelate explain how an object which has no life can have rights?
THE LORD BISHOP OF DURHAM: If the noble Lord, Lord Silkin, agrees that
the mother has a duty to bring the fœtus to birth, then I think he is committed to saying that the fœtus has rights. If he wants me to spell it out further, I can say that the fœtus has rights because it is potentially a human life, on the basis of my claim that the mother has a duty, which I take it we all recognise, normally to bring the fœtus to birth. I did think at one time that I ought to withdraw the Amendment, but I will let it go forward.
LORD BOOTHBY: I want to say only one sentence, and that is the right reverend Prelate—
SEVERAL NOBLE LORDS: Divide!, divide!
LORD BOOTHBY: I should like to say just this. Many things and cruel things have been done in His name, but Jesus Christ was not a cruel man.
9.45 p.m.
On Question, Whether the said Amendment (No. 10) shall be agreed to?
Their Lordships divided:—Contents, 32; Not-Contents, 75.

CONTENTS

Barrington, V.

Durham, L. Bp. [Teller]

Perth, E.

Boston, L.

Emmet of Amberley, Bs.

Sandford, L.

Brock, L.

Exeter, L. Bp.

Sempill, Ly.

Canterbury, L. Abp.

Ferrers, E.

Strang, L.

Carnock, L.

Grantchester, L.

Strange of Knokin, Bs.

Carrick, E.

Grenfell, L. [Teller.]

Thurlow, L.

Colyton, L.

Gridley, L.

Vivian, L.

Cork and Orrery, E.

Hylton-Foster, Bs.

Walston, L.

Crook, L.

Longford, E. (L. Privy Seal)

Wootton of Abinger, Bs.

Derwent, L.

Monckton of Brenchley, V.

Ypres, E.

Dundee, E.

Oakshott, L.

NOT-CONTENTS

Addison, V. [Teller.]

Ferrier, L.

Moynihan, L.

Airedale, L.

Gaitskell, Bs.

Noel-Buxton, L.

Albemarle, E.

Gardiner, L. (L. Chancellor.)

Norwich, V.

Amulree, L.

Greenway, L.

Platt, L.

Archibald, L.

Grimston of Westbury, L.

Ponsonby of Shulbrede, L.

Asquith of Yarnbury, Bs.

Hayter, L.

Raglan, L.

Balerno, L.

Henderson, L.

Rea, L.

Beswick, L.

Henley, L.

Rowley, L.

Boothby, L.

Hilton of Upton, L.

St. Davids, V.

Bowles, L.

Hughes, L.

St. Just, L.

Byers, L.

Inglewood, L.

Segal, L.

Caldecote, V.

Kahn, L.

Shackleton, L.

Carrington, L.

Kennet, L.

Sherfield, L.

Champion, L.

Killearn, L.

Silkin, L.

Chorley, L. [Teller.]

Kirkwood, L.

Somers, L.

Collison, L.

Lambert, V.

Sorensen, L.

Cooper of Stockton Heath, L.

Leatherland, L.

Stamp, L.

Craigavon, V.

Listowel, E.

Stocks, Bs.

Cranbrook, E.

McCorquodale of Newton, L.

Stonehaven, V.

Darwen, L.

Massereene and Ferrard, V.

Stonham, L.

Drumalbyn, L.

Monson, L.

Stow Hill, L.

Elliot of Harwood, Bs.

Morrison, L.

Strabolgi, L.

Falkland, V.

Moyne, L.

Strathcarron, L.

Summerskill, Bs.

Terrington, L.

Wade, L.

Swanborough, Bs.

Vernon, L.

Winterbottom, L.

Resolved in the negative, and Amendment disagreed to accordingly.

THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): Before I call Amendment No. 11, I think I should point out to the Committee that if this Amendment is agreed to I shall have to call Amendment No. 12, by reference to the decision taken on Amendment No. 11.
10.5 p.m.
VISCOUNT DILHORNEhad given notice of his intention to move, in sub-
THE EARL OF DUNDEE THE EARL OF DUNDEE: I beg to move Amendment No. 11.
Amendment moved—
Page 1, line 17, leave out paragraph (b).—(The Earl of Dundee.)
9.55 p.m.
On Question, Whether the said Amendment (No. 11) shall be agreed to?
Their Lordships divided:—Contents 40; Not-Contents 81.

CONTENTS

Audley, Bs.

Derwent, L.

Lytton, E.

Barrington, V.

Dinevor, L.

Monckton of Brenchley, V.

Boston, L.

Dundee, E. [Teller.]

Oakshott, L.

Brock, L.

Durham, L. Bp.

Perth, E.

Brooke of Ystradfellte, Bs.

Effingham, E.

St. Helens, L.

Buckton, L.

Emmet of Amberley, Bs. [Teller.]

Sandford, L.

Canterbury, L. Abp.

Sempill, Ly.

Carnock, L.

Exeter, L. Bp.

Strange of Knokin, Bs.

Carrick, E.

Ferrers, E.

Vaux of Harrowden, L.

Clifford of Chudleigh, L.

Gridley, L.

Vivian, L.

Colyton, L.

Hylton-Foster, Bs.

Walston, L.

Cornwallis, L.

Iddesleigh, E.

Waverley, V.

Craigmyle, L.

Longford, E. (Lord Privy Seal.)

Ypres, E.

Crook, L.

Lothian, M.

NOT-CONTENTS

Addison, V. [Teller.]

Greenway, L.

Raglan, L.

Ailwyn, L.

Grenfell, L.

Rea, L.

Albemarle, E.

Grimston of Westbury, L.

Rowley, L.

Amulree, L.

Hayter, L.

St. Davids, V.

Archibald, L.

Henderson, L.

St. Just, L.

Asquith of Yarnbury, Bs.

Henley, L.

Segal, L.

Balerno, L.

Hilton of Upton, L.

Shackleton, L.

Beswick, L.

Hughes, L.

Sherfield, L.

Boothby, L.

Jellicoe, E.

Silkin, L.

Bowles, L.

Kahn, L.

Somers, L.

Byers, L.

Kennet, L.

Sorensen, L.

Caldecote, V.

Killearn, L.

Stamp, L.

Carrington, L.

Kirkwood, L.

Stocks, Bs.

Champion, L.

Lambert, V.

Stonehaven, V.

Chorley, L. [Teller.]

Leatherland, L.

Stonham, L.

Collison, L.

Listowel, E.

Stow Hill, L.

Cooper of Stockton Heath, L.

McCorquodale of Newton, L.

Strabolgi, L.

Craigavon, V.

Massereene and Ferrard, V.

Strang, L.

Cranbrook, E.

Monson, L.

Strathcarron, L.

Darwen, L.

Morrison, L.

Summerskill, Bs.

Drumalbyn, L.

Moyne, L.

Swanborough, Bs.

Elliot of Harwood, Bs.

Moynihan, L.

Terrington, L.

Falkland, V.

Noel-Buxton, L.

Thurlow, L.

Ferrier, L.

Norwich, V.

Vernon, L.

Gaitskell, Bs.

Platt, L.

Wade, L.

Gardiner, L. (L. Chancellor.)

Plummer, Bs.

Winterbottom, L.

Grantchester, L.

Ponsonby of Shulbrede, L.

Wootton of Abinger, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

section (1), to leave out paragraph (b) and insert:
"(b) that it is more likely than not that if the child were born it would suffer from such physical or mental abnormalities as to deprive it of reasonable enjoyment of life."
The noble and learned Viscount said: At this late hour I do not propose to move this Amendment, but I give the noble Lord notice that I shall probably move Amendments dealing with this subject in the light of his interesting definition of "substantial hardship" and "serious risk".
LORD SILKIN: This comes as no surprise at all to me.
LORD SEGALhad given notice of his intention to move, after subsection (1), to insert:
"( ) Where the pregnancy is known to be of more than sixteen weeks duration, it shall only be terminated by or under the supervision of a consultant holding an appointment under a hospital board, being an appointment involving the practice of gynaecology."
The noble Lord said: Although I regard this Amendment as important, I should like to ask the leave of the Committee, also because of the lateness of the hour and because I do not believe in legislation by attrition, to withdraw the Amendment standing in my name, as well as all my Amendments on "conscience" Clause 4 but to reserve the right to bring them forward on another occasion. At this time I do not move this Amendment.
10.8 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, in subsection (3), to leave out "or mental". The noble Baroness said: This is simply a probing Amendment. I should like to ask my noble friend Lord Silkin what are the circumstances in which there could be "grave permanent injury" to the mental health of a pregnant woman in the time it takes to get a second medical opinion. I can understand that there might be grave risk to physical health in cases where there has perhaps been attempted suicide, but I am puzzled whether in the short time it takes to get a second medical opinion there could be grave permanent injury to a woman's mental health. I ask this purely for information. I beg to move.
Amendment moved—Page 2, line 7, leave out ("or mental").—(Baroness Wootton of Abinger.)
LORD SILKIN: It has been assumed that that is quite a possibility in the case of pregnancy, and I think the records show that there have been a number of mental illnesses, I do not say necessarily
1066
permanent, but certainly quite strong cases of mental disease. I think it is far better in the Bill—at any rate, it cannot do any harm.
BARONESS WOOTTON OF ABINGER: My noble friend says "not necessarily permanent", but "permanent" is the language of the Bill. In the circumstances, I am prepared to beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
BARONESS WOOTTON OF ABINGER: In spite of the lateness of the hour, I wonder whether the Committee will allow me to say one or two words about this clause, because it is clearly much the most important clause in the Bill. I have found myself to-day in the position of differing from a number of my noble friends with whom I am accustomed to be associated, and I should like to take the opportunity of saying a few words why this is so.
There are two reasons. I think it is very important to restrict very closely the opportunities for medical termination of pregnancy. The first is the reason, which is familiar to everybody, of the importance of human life, and I make no apology for emphasising that in the present state of the world to-day. I know that it often causes surprise among my Christian friends that someone who, like myself, believes that this life is all that any of us will ever know should attach so much importance to the preservation of life, but to me this appears to be entirely logical. I do not know what the attitude of the churches may be as to the eternal future of a fœtus which is aborted, but if I believed that a fœtus which was aborted was spared the pains and tribulations of earthly life and entered immediately into heavenly bliss, I think I should be very much less inclined to stiffen the laws about abortion than if I believed that that fœtus was deprived of the only enjoyments which, so far as I can see, our race is capable of having.
I should also like to say that I know this leads to arguments, theological and other, as to when a human being is not a human being, and when a life is not a life. There have been discussions in another place, and they were followed up in this House, about the size of a fœtus.

1067
A fœtus was displayed and it was shown, I think, that it was only 1½ inches long at the beginning; and further figures were given on the stages at which it would be 4½ and 5½ inches. It is a very profound thing in human psychology, that it is very much easier to kill a small thing than a big thing. Many of us who can squash flies would find it very difficult to drown puppies or cats, although sometimes exceptions are made about killing foxes, otters and hares. But let those pass.
In the case of squashing flies, we are able to persuade ourselves that these are creatures of low sensibility and that, in any case, flies are all they will ever be. In the case of a human fœtus, the fœtus is not all that it will ever be. It is a potential human life and, therefore, it seems to me that whether it starts originally as something which is only an inch or so long is totally irrelevant. It seems to me quite as irrelevant as to argue that it is less wicked to kill a baby which is only 12 inches long than to kill a baby which has attained a length of 24 inches. So my first principle in relation to this clause has been throughout that I think this is the day and age in which we ought to emphasise, whether we are Christians or whether, like myself, we are not, the importance of the preservation of human life, and that we should not lightly destroy it.
My second reason is that, while some of your Lordships regard contraception, also, as of dubious value and perhaps a practice not to be adopted, I think that we should all be united in the view that if we have to choose between abortion and contraception, contraception to many of us is not an evil at all; and those who regard it as an evil would regard it as a lesser evil than abortion. What I am concerned about is that if we open the door too widely there will be a very large number of people who will say, "There is no ideal method of contraception"—and this is indeed still true—"There is nothing which is no trouble and with no conceivable risk; nothing which does not raise perhaps esthetic difficulties". A very large number of people will say, "Let us not bother about this because, after all, if the worst happens it will always be possible for you"—it is the man speaking—"to obtain an abortion". It is for this reason that I think it is
1068
very unwise that we should open the door too widely. I have said this because I wanted, even at this late hour, to explain to many of my noble friends why it is I have found myself separated from them to-day.
LORD CONESFORD: May I indicate just one point so that the noble Lord, Lord Silkin, may consider it? In the Bill as it is now printed, what is printed as (a)(ii) quite obviously does not belong there; it should be printed elsewhere. It is printed at the moment as though it was something about which the doctors have to be satisfied. It has nothing to do with the doctors. It is a general requirement on how this is to be worked. I believe the authorities in the House think that this can be put right in the printing without amendment, but the point is of some importance, and I think the noble Lord, Lord Silkin, may like to consider it.
LORD SILKIN: The noble Lord has put his finger on a misprint. I was aware of it, and I wondered whether I ought to draw the attention of the Committee to it. I had hoped that nobody would spot it, but the noble Lord has done so. As to the noble Baroness, of course I shall always fully respect her views. They have been expressed from time to time, both explicitly and implicitly, in the course of our discussions. I do not think, with great respect, that she has said anything very new, but we all respect what she has said and quite understand the line she has taken, even though we very much regret we have not been able to agree with her.
Clause 1, as amended, agreed to.
10.17 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, after Clause 1, to insert the following new clause:
Application for termination
". Except in a case when the woman is incapable of making application, a pregnancy shall only be terminated under this Act on the written application of the woman concerned attested by two witnesses."
The noble Baroness said: This is a Bill which is ostensibly for the protection of women who find themselves pregnant in circumstances in which it is dangerous to their health, physical or mental. It is an extraordinary thing to me that throughout the Bill the woman nowhere appears as

1069
anything but a passive lump about whom other people will make decisions and upon whom other people will perform operations.
At an earlier stage my noble friend Lord Stonham spoke with great force about this Bill being a Bill in the interests of women, and he even banged on the Despatch Box to assure us that the measures proposed are for the benefit of women. If so, I think it might be quite a good thing if that appeared somewhere in the Bill, and not merely when my noble friend speaks in Committee in your Lordships' House.
I know that I shall be told that this clause is unnecessary for the reason that whenever a surgical operation is performed the person who is to undergo that operation is required to give consent in writing. I also know that that obligation is not always carried out, for the best of all possible reasons, because on the only occasion on which I have myself had a surgical operation nobody suggested that I should ever give my consent in writing, although it was not a matter of urgency and I was quite capable of giving it. I also know from what I have seen in hospitals that this kind of consent, in the pressure under which hospitals work, is very often given in a very casual way. I feel quite certain—and this is based upon experience of cases of unwanted pregnancies; pregnancies unwanted by somebody, sometimes by husbands—that women in this position who are pregnant may often be subject to very considerable pressures from within the family and sometimes, I think, from doctors who have their own ideas about who ought to have children and who ought not.
I cannot believe that to dispose of one's unborn fœtus is a less important matter than to dispose of one's property by a will. When one disposes of one's property by a will, one is required to make a document which has to be attested by two witnesses, and I should feel extremely uneasy if any less precaution was required before a woman parts with her unborn child.
I hope that my noble friends on both sides of this House—those who are in the very great majority—will forgive me if I say that when I find this total absence of reference to the active initiative of the woman I become a little
1070
suspicious. I am always highly suspicious when I find a very large body of men who are enthusiastic about something which is said to be in the interests of women. I sometimes find individual men, and small numbers of men, whose motives in this case I should never dream of calling in question for I know that they are on the side of women. But when a mass of men show this enthusiasm, I ask myself: What is behind it? And I am not so sure that this Bill is conceived in the interests of women—unless that is, the woman is given the explicit right formally to say that it is she who wants the abortion; and not her husband or the well-meaning doctor or the admirable and well-meaning social worker, or the admirable and well-meaning Members of your Lordships' House. For that reason I attach great importance to this and I am not prepared to see this Bill go through unless there is a specific requirement that the woman shall give her consent in a formal way. I beg to move.
Amendment moved—
After Clause 1, insert said new clause.—(Baroness Wootton of A binger.)
LORD SILKIN: Let me assure the noble Baroness that it was not the deliberate intention to permit of an abortion being carried out without the written consent of the woman. I cannot say why it is not in the Bill; it was in the previous edition. I am prepared to give an assurance that at a later stage something will be inserted. What I cannot agree to is that the consent should be made in the presence of two witnesses. I think that this makes far too legalistic an approach to things and may create difficulties. But if the noble Baroness is concerned to ensure that the woman who wants an abortion really wants it, and will be satisfied with her signature, then I think I could agree that something of that sort will be introduced at a later stage.
BARONESS WOOTTON OF ABINGER: I cannot agree that it is an unnecessary legalistic procedure that a woman's consent should be witnessed; and I do not undertake that I shall not raise the matter again if my noble friend does not put a very clear and explicit clause into the Bill requiring the woman's written consent to be obtained. I am not content to rest on the consent which

1071
it is said is always given to any surgical operation. On my noble friend's assurance that there will be an explicit statment that it is on the application of the woman—and I would make some distinction between "application" and "consent", because the initiative should lie with the woman—I am prepared to withdraw my Amendment.
LORD STONHAM: Before my noble friend Lord Silkin commits himself too implicitly on this Amendment—and I agree in principle that we should agree with my noble friend Baroness Wootton of Abinger—I should say that there are cases where the word "woman" (and the word "woman" is printed at least five times in the Bill, quite apart from the use, several times, of the word "patient" and the "person who is pregnant") would, in some cases, include a child of 12. Is a doctor going to be subject to committing a criminal offence, if there has not been consent, signed in the presence of two witnesses, by a child of 12? I am not objecting at all to the principle. Without thumping the Despatch Box I should like to say again, in all sincerity, that this is a Bill about women; and women must decide. There is no insincerity about that when I say it. My noble friend Baroness Wootton of Abinger says that she will not be content without this or that, but I am bound to say at this stage that these things have to be viable. Although the principle is conceded, we are not in a position to say that a woman is incapable of giving consent just because two witnesses are not available at the time.
BARONESS WOOTTON OF ABINGER: If my noble friend will forgive me for interrupting, I would say that I have already made clear that I am not stressing the particular point of witnesses. I am waiting to see what my noble friend Lord Silkin produces, so I think we need not argue that point.
LORD STONHAM: I am grateful for that intervention, but it is not only a
1072
question of two witnesses. The matter needs to be looked at carefully to ensure that we do not put doctors in a position where they might be committing a criminal offence, and not necessarily only a criminal offence but one which involves a punishment of life imprisonment at the maximum, when in fact they are not really committing anything that we should consider as a fault.
LORD SILKIN: My noble friend Lord Stonham need not have any apprehension. Of course, the case of a girl of 12 would have to be taken into account, and one would have to provide for signatures by somebody, either the parents or somebody else to speak on their behalf with authority. That is why I was not prepared to accept this Amendment on the spot.
10.28 p.m.
BARONESS WOOTTON OF ABINGER: I was prepared to withdraw the Amendment, but I will say that I was much shaken by the contributions which have been made by my noble friend Lord Stonham and, subsequently, by my noble friend Lord Silkin. If a child of 12 is pregnant, she has a right to say what is to be done in relation to her pregnancy. I am not prepared at the present stage to give a parent or guardian a barring right. This is a matter of vital importance to the child; and if a child is pregnant even at the age of 12—which does happen, though it is not very common—I think it is the child's consent that matters. I think it should be a criminal offence for any medical man to perform, without the consent of the child concerned, an operation of this gravity which would affect her life and the life of the unborn child as well. However, I am prepared to see what my noble friend, Lord Silkin produces, and at this stage I will withdraw the Amendment, though I very much wish my noble friend Lord Silkin had not made his contribution. I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.27 p.m.
VISCOUNT BARRINGTON VISCOUNT BARRINGTON moved, after Clause 1, to insert the following new clause:
Fees
A registered medical practitioner shall be guilty of an offence if he performs, assists or advises in the termination of a pregnancy permitted by this Act in consideration of a fee and shall be liable on conviction to a fine of £500 and in the case of a second or subsequent conviction to a fine of £1,000.
The noble Viscount said: I shall be as short as I can in moving this Amendment, and I may say that, as it has been rather hastily drafted, if I am assured that there are technical faults which make it impossible to accept it I shall be very ready to withdraw it and produce it again, as I think I have a right to do, at Report stage. The purpose of the Amendment is plain and I do not think it is one with which any of your Lordships would quarrel. It is designed to do one of the three things that this Bill sets out to do and with which we all sympathise. I am not sanguine enough to say that it will abolish the black market or abolish back-street abortionists—which in fact means the Harley Street abortionist, more often than not, because Harley Street is a "back street" sometimes—but it will make it a great deal more difficult for abortionists to increase their income.
I shall be very brief, because an Amendment of this sort was introduced in slightly different terms in another place recently. It was debated in unavoidably difficult circumstances, and I do not think it got an entirely adequate debate. But one argument brought up against it, as well as a number of rather, I think it fair to say, legalistic arguments which do not arise on this Amendment, was that, after all, this was concerned with something that a registered practitioner is allowed by the Bill to do. It is therefore nothing illegal, and it is unfair to prevent his taking money for doing something legal.
I shall say only three things, and then I shall hear with interest any comments. The first is that of course for a great many legal things we do we do not feel that necessarily we ought to take money. There was a period some time ago when I used to have a cold bath in the morning, and I never accepted money for doing
1074
that. That was irrelevant, because I think nobody would have offered me money to take one. On the other hand making a speech in your Lordships' House, which to some of us is still rather like taking a cold bath, would be slightly undesirable if speakers in your Lordships' House were paid by the line, paragraph or word, as I know writers in Punch were a long time ago—probably they are not now. I think that some noble Lords, given an option, might suggest that speakers should be paid not to speak, on the Chinese method of paying doctors.
To come to a more serious question, it was not long ago that for serious offences High Court Judges had to condemn human beings to death: not a pleasant thing to do. A little before that, there were offences such as the stealing of a sheep, which though regarded as less serious carried the death penalty. In those days it would have been highly undesirable for a judge to have received payment in proportion to the number of executions that he ordered. That is not entirely hypothetical or imaginary, because the last predecessor of the noble and learned Lord on the Woolsack who became sainted, Sir Thomas More, was regarded as eccentric, as many saints are, because he did not accept money when, in weighing in the balance which of two decisions was right, it might possibly have influenced his decision.
In this Bill there is always the risk of that, because we are legislating not about the average doctor who has a very high standard, but about those doctors who are tempted on what must necessarily be, even in this restricted form, slightly elastic terms, to do more for money than they would for the health of their patients. I should like to hear any comments that noble Lords have to make, and of course those of the noble Lord, Lord Silkin, who must have had enough now, as we all have. I will gladly withdraw this Amendment if I am satisfied that its object is understood. I beg to move.
Amendment moved—
After Clause 1, insert the said new clause.— (Viscount Barrington.)
LORD SILKIN: I can assure the noble Lord that I do understand what he is

1075
after and I have great sympathy with him, but this would involve a major reform of medical practice in this country and I do not see how it can be done under this Bill. We must have two doctors. One of them may be, or may not be, the pregnant woman's own doctor. If he is hex own doctor and she is on the panel, then she will not pay, but she may have to pay something for the second doctor. As things stand at the moment, there is no way by which we can impose on any doctor other than the woman's own doctor an obligation to give a certificate or see a patient at all. If it were possible to prevent a woman's having to pay fees in respect of a pregnancy, I should be all for it, but I cannot see how that could be done without a fundamental alteration in the rules of medical practice.
VISCOUNT BARRINGTON: I quite understand that this is a difficult subject, which I do not think it would be possible to discuss now. I do not believe it is impossible to get over the difficulty, and if I may reserve my right to return to the subject and perhaps produce a suggestion for an Amendment on the Report stage, I now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Application of Act to visiting forces, etc.]
LORD SILKIN: This is little more than a drafting Amendment. It is to put in order the relationship between the doctor who might be carrying out an operation under the Visiting Forces Act in respect of a person who is visiting as a member of visiting forces. I can explain this at much greater length if your Lordships would like me to, but I can assure you that it is purely a drafting Amendment. I beg to move.
Amendment moved—
Page 3, line 3, leave out from ("body") to end of line 5 and insert ("appointed as a medical practitioner for that body by the proper authorities of that body").—(Lord Silkin.)
On Question, Amendment agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Conscientious objection to operation]:
10.37 p.m.
LORD SILKIN LORD SILKIN moved to leave out Clause 4 and insert the following new clause:
Conscientious objection to participation in treatment
".—(1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:
Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.
(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman."
The noble Lord said: This is partly a redrafting of the original Clause 4—the conscience clause—and I hope that it is an improvement. It also adds a new subsection (2). Under the clause as it stood there was nothing to compel a doctor to carry out an emergency operation if that doctor had a conscientious objection. There are certain emergency operations which have to be carried out to save the life of the patient, where abortion may be involved although it is not the purpose of the operation.
What we are proposing (certain representations were made about it in another place and on Second Reading here) is that, while conscience may be put forward as an argument for not carrying out a normal abortion, it should not be available where an operation has to be carried out to save the life of the person, even if the operation does involve an incidental abortion. That is the purpose of this Amendment. There is also the question of the burden of proof, but that was in the original clause. I beg to move.
Amendment moved—
Leave out Clause 4 and insert the said new clause.—(Lord Silkin.)
THE CHAIRMAN OF COMMITTEES: I will now call the Amendments to this Amendment. I understand that Amendments Nos. 22A and 22B, in the name of the noble Lord, Lord Segal, are not moved.
LORD SEGAL: Perhaps I may, with permission, say a few words.
THE CHAIRMAN OF COMMITTEES: Then I will call on Amendment No. 22A.
LORD SEGALhad given Notice of an Amendment to the Amendment, in the proposed new subsection (1) to leave out "person" (where that word first occurs) and insert "registered medical practitioner". The noble Lord said. If I may be allowed to say a word at this late hour, I should like to say that Clause 4 as redrafted by my noble friend Lord Silkin is far more acceptable to me than the original Clause 4 in the Bill. I should have much preferred to have, instead of "doctor, nurse, hospital employee", simply the word "doctor" included. I should also have preferred that this Clause 4 confined itself to "any person who has to perform an operation" instead of "any person required to participate in an operation". But I fully realise, especially at this late hour—and, in common with many of your Lordships, I am very anxious to see the Committee stage of this Bill concluded tonight—that it can give rise to a great deal of difficulty and a great deal of controversy among professional bodies outside those of the medical profession. In these circumstances. I feel that at this stage it would be right to accept the Amendments in the name of my noble friend Lord Silkin and not to move my own Amendments.
10.40 p.m.
LORD BROCK: I beg to move the Amendment to the Amendment in my name on the Order Paper. I think this is a "blunderbuss" clause as it at present involves all sorts of personnel, non-medical as well as medical. The position of the surgeon or doctor is a special one and demands special notice and consideration. In a recent debate in your Lordships' House I drew attention to the fact that, in my opinion, a conscientious objector might be of many kinds—political, intellectual, moral, religious or medical. I think that the medical conscience of the doctor should be specifically recognised. I wish to make it clear that his medical conscience is primarily and always guided by the absolute rule never
1078
to withhold or refuse help to a patient in need. I beg to move.
Amendment to Amendment moved—
Line 4, after ("a") insert ("medical or").(Lord Brock.)
LORD STONHAM: I think that the Amendment of the noble Lord, Lord Brock, is based on a misconception. It appears to fear that the Bill may call on a doctor to do an abortion for other than purely medical reasons. Under the Bill, abortion is permissible only where there is a risk of injury to the health of the pregnant mother, or on grounds of abnormality in the fœtus. These grounds involve a medical assessment of the risks, and there could be no question of an abortion where, on assessing such risks, the doctor considers that there are medical objections to terminating the pregnancy.
The Bill does not impose on anyone a duty to perform or participate in an abortion operation. It does not impose that on any doctor. The whole Bill says that the doctor may carry out the operation lawfully if he and another doctor are of the opinion, formed in good faith, that it comes within the grounds set out in the Bill. Since the Bill says that a doctor may carry out abortion, it is implicit that he is free, if he so thinks, not to carry it out. It is therefore very difficult to see how the fears of the noble Lord, Lord Brock, are justified.
There are other difficulties about the Amendment the noble Lord proposes. The decision whether or not there are medical objections to an abortion is essentially one for a doctor. Clause 4 refers to a "person", and that covers not only doctors but also nurses and hospital employees, and so on. The Amendment which he proposes could therefore have the effect of allowing a nurse to refuse to participate in an abortion operation which two doctors consider to be medically desirable, but to which the nurse considered there were medical objections. I hardly think that that is what the noble Lord, Lord Brock, intended.
LORD BROCK: I find it difficult in my own mind to separate my Amendment from the next Amendment in my name, No. 24; and, if it would be your Lordships' pleasure, I should like to deal with

1079
that to clarify the issue, because I feel that my reservations are directly connected with the next two lines in the clause. May I have your Lordships' permission?
THE CHAIRMAN OF COMMITTEES: Does the noble Lord wish to withdraw this Amendment and speak to his subsequent Amendment?
LORD BROCK: No. I should prefer to retain this Amendment, with the permission of the Committee, and speak also to the subsequent Amendment. I am asking for the permission of the Committee to speak to my Amendment No. 24. I find it difficult to dissociate the implications of the omission of "medical" with these two lines I wish to have deleted. My objections to these words rest on what I consider the absolute need for recognition of the ethical code or medical conscience that should guide and direct a doctor; namely, that his conduct towards a fellow being is influenced only by his duty to care for and guard his patient's life and health and that it is equally wrong and a misuse of his profession if he uses his skill, power and specialist experience for interference on non-medical grounds.
It is therefore unacceptable, intolerable and even insulting to a dignified, responsible profession to suggest that it might be called upon to defend its ethics in a court of law. I repeat what I said earlier, in order to make it quite clear: medical ethics are primarily influenced by the overriding obligation never to withhold or refuse treatment to a patient in need. Put simply, the patient's interests always come first. I realise that there may be an overlap between the conscience of the nurse, for instance, and the doctor, but I am concerned that the doctor's medical conscience in this matter should be clearly stated. I am less concerned with the presentation of the nurse's conscience because I think there are plenty of other people to look after her interests in this matter.
LORD SEGAL: I should like to be allowed to endorse the remarks made by my noble friend Lord Brock. My object in supporting his Amendment to leave
1080
out lines 5 to 7 relates specifically to the requirement that the burden of proof of a conscientious objection should rest on the doctor who wishes to make this objection on conscientious grounds. Now that the Amendment in my name has been withdrawn, I would ask my noble friend Lord Silkin to take these considerations into account and to make it not obligatory upon a doctor to give proof of his conscientious objections. I fully agree with my noble friend Lord Brock that it is highly derogatory and almost insulting that doctors should be required to make that stipulation, and I trust that the noble Lord, Lord Silkin, will consider the point when this Bill comes up for further consideration.
BARONESS WOOTTON OF ABINGER: It seems we are now discussing matters that fall within Amendment 25 as well as Amendment 24. Therefore perhaps it might be appropriate if I were to say what I intended saying on Amendment 25. It seems to me to be quite extraordinary that we should be proposing that where a conscientious objection is asserted by some responsible person, either a doctor or someone else who is a hospital employee, the presumption should be that this objection is not genuine. Surely the presumption should be that the objection is genuine and that the burden of proof must rest upon anyone who disputes it. I cannot see how the Bill has got this way round, and when we come to Amendment No. 25 I would stress strongly that the burden of proof should lie on the person who disputes the objection. It seems to me to be quite insulting to a distinguished profession to assert that the probability is that a person making a conscientious objection is a "phoney" unless he proves the contrary.
LORD SEGAL: With great respect to the noble Baroness, Lady Wootton of Abinger, I would point out that this phrase also embraces hospital employees. I can quite conceive of a situation where a hospital orderly refuses on conscientious grounds to wheel a trolley containing a patient who was about to undergo an operation for abortion, and all the time he may be using that as a pretext to go to the Cup Tie.
BARONESS WOOTTON OF ABINGER: I am very much surprised to find that my noble friend Lord Segal does not ascribe to those hospital employees who perform in humble capacities the same standard of integrity as those who perform in his own profession. I am shocked that he should think there is a presumption of argument that a hospital orderly, when he says he has a conscientious objection, probably wants to go to the Cup Final. I am very particularly surprised that that argument should be put forward by somebody who sits on these Benches.
LORD SEGAL: I take full note of my noble friend's objection, but I believe such cases have been known to occur. I greatly regret if any remarks of mine have caused offence in any direction whatsoever.
LORD CONESFORD: May I put one point to the noble Lord, Lord Silkin, about this proviso? There are Amendments down to omit the proviso, and in the case of the noble Baroness she has an Amendment to reverse the proviso. I was wondering whether the noble Lord, Lord Silkin, would tell us what in his opinion would result in law from the simple omission of the proviso and leaving the question of burden of proof to the court.
LORD STONHAM: Before my noble friend Lord Silkin tells us what he means by this proviso, I should be grateful to the noble Lord the Lord Chairman of Committees if he could tell us which Amendment we are discussing. I understood that we were discussing Amendment No. 23 moved by the noble Lord, Lord Brock, to which, if I may say so with respect, I thought I gave a fairly conclusive answer. I am confirmed in that view because the noble Lord, Lord Brock, then said, "I can deal with this much better if I deal with another Amendment further on". After that, and the speech of my noble friend Lord Segal, the noble Baroness, Lady Wootton of Abinger, said that she would like to talk about another Amendment. This places me, inexperienced as I am, in a position of great difficulty, and I should be grateful if we could resolve the position so that we know what we are talking about.
THE CHAIRMAN OF COMMITTEES: The noble Lord, Lord Stonham, is right. The Amendment moved is No. 23, moved by Lord Brock, and that is the Amendment now before the Committee. Noble Lords are in order in speaking to as many Amendments as they like, but they can move only one Amendment at a time.
LORD BROCK: I have read the whole of the first part of this clause, and I realise that it is unsatisfactory in a number of ways. I think that on the whole it would be better if I asked leave to withdraw Amendment No. 23.
Amendment, by leave, withdrawn.
10.53 p.m.
LORD CRAIGMYLE LORD CRAIGMYLE moved as an Amendment to the proposed new clause, in subsection (1), immediately before that proviso, to insert:
"nor shall any claim for negligence lie against a registered medical practitioner who refuses to perform a termination of pregnancy authorised under this Act if he is of the opinion formed in good faith that such termination would not be in the best interests of the patient."
The noble Lord said: This is a rather technical Amendment, and I move it with some diffidence because the technicality lies in the realm of law in which I am not learned. My understanding is that the new Clause 4 will protect the doctor who has a conscientious objection in all matters of his contractual duty. But it does not protect the doctor—and I think this is, at least in part, what the noble Lord, Lord Brock, is getting at—who is simply, not as a matter of conscience, but in a particular case, of the opinion that a termination is not the right treatment for a particular patient.
It is not clear to me to what extent such a case would be covered as to the contractual liabilities under Lord Silkin's redrafted clause, and it is reasonably clear to me that in so far as there may be a claim for negligence against him it is not covered at all. It seems quite possible that a claim for negligence might arise either way round, if I may put it so. A woman who has been aborted may later regret it and sue her doctor for negligence in not prescribing some other treatment for the trouble she complained of which led to the abortion. Or, on the

1083
other hand, a woman who had not been aborted may regret that. Something could go wrong, and she may pursue the doctor who refused to abort her for damages on the grounds that he was negligent in not performing the abortion which was authorised under this Act.
As to the first case, I think that if there had been serious danger of that arising probably the promoters of the Bill would themselves have taken steps by now to look after it. But as to the second case, the case of the doctor who in good faith declines to perform an abortion and is then sued for damages, I think he should be put on the same sort of ground as the doctors who give their opinions under Clause 1; that is to say, it should be an opinion formed in good faith, and provided that the good faith is not challenged, or not successfully challenged, then no claim for negligence should lie. I hope that any noble Lords who are learned in the law will let us have the benefit of their advice on this point. I beg to move.
Amendment to Amendment moved—
Line 4, at end insert the said words.—(Lord Craigmyle.)
LORD SILKIN: These words will add nothing whatever to the liability of the doctor or the benefit of the patient. No doctor is obliged to carry out an operation which he does not think is necessary, and there cannot possibly be any action for negligence against him. I cannot see the point of putting these words in. I can assure the noble Lord that it is quite unnecessary. No doctor who in good faith refuses to carry out an operation because he does not think it is in the patient's interest has anything to fear.
LORD CRAIGMYLE: If the noble Lord assures me in such strong terms that there is no legal need for this, I will ask leave of the Committee to withdraw the Amendment.
Amendment to Amendment, by leave, withdrawn.
LORD BROCK: I beg leave to move the Amendment standing in my name, to leave out the proviso to the proposed new subsection (1) about which I have already spoken.
Amendment to Amendment moved—
Leave out lines 5 to 7.—(Lord Brock.)
LORD SILKIN: The noble Lord asked me what would be the effect of leaving out these words. I speak in the presence of much greater legal authorities than I can claim to be, but I believe that if the words were not included in the Bill then the ordinary law would take its course. If there is a prosecution, the prosecution will have to prove its case. But in the case of a doctor who pleads a conscientious objection it is quite impossible for the prosecution to prove a case, to prove that he has not a conscientious objection; and these words were presumably inserted in order that he may state on oath that he has a conscientious objection and be subject to cross-examination. I think that that is the only possible way in which the matter can be brought before the court. But I am perfectly willing to think about this again, and to discuss it with my friends, the sponsors of the Bill in another place, and see how far they attach importance to those words.
LORD CONESFORD: I had hoped to be of a little assistance to the noble Lord and would suggest that we have the advantage of a reply by the noble Lord, Lord Stonham, who, I should have thought, would have the benefit of the advice of high legal authority. I think that a serious question is involved here. I am not sure where the court would say the burden of proof resided in such a case.
11.0 p.m.
LORD STONHAM: I think it would be fair to say that there is no need for a conscience clause in this Bill at all; that these matters could be settled as they have been settled for one hundred years, I suppose—by the normal good sense of the medical and other staffs in hospitals. Very strong views were put forward both by supporters and opponents of the Bill in favour of a conscience clause. The conscience clause was therefore devised in another place. The last part of it was somewhat hurriedly devised, as it seems, on the last day of the Report stage in another place. The main effect of the new clause which my noble friend has moved, and which has now been incorporated in the Bill, is to restore to the Bill the position

1085
which now exists where if a doctor negligently performs an operation, particularly an operation where he might be liable to a criminal charge, the conscience clause as it stood when it came to this House from another place would have removed any responsibility. My noble friend has now restored that responsibility, and I am sure that the noble Lord, Lord Brock, and all medical men would agree that that is right. We have made no difference at all.
The only remaining point which has been moved by the noble Lord, Lord Brock and supported by my noble friend, Lord Segal—and I think that it would be supported by my noble friend Lady Wootton of Abinger—is that the doctor concerned should not have to prove that he had a conscience but it would have, as it were, to be proved the other way round. The purpose of having the words in the Bill as proposed by my noble friend Lord Silkin in his Amendment is to deal with the risk that a doctor who was simply negligent might seek to excuse himself retrospectively by putting forward a spurious conscientious objection which it might be impossible to disprove, and also with the position that if the words were the other way round the prosecution might be in the impossible position of having to prove a negative. I do not know whether that has answered the noble Lord's question, but I think that the offer made by my noble friend Lord Silkin to look at the matter is all that noble Lords ought to expect in this regard. They have expressed their views and they will be able to see in discussion with him whether anything further is needed. My own view is that the clause now incorporated in the Bill which was moved by my noble friend, and which was most carefully drafted, meets all possible circumstances, and meets far better than when the Bill came to this House the demands of another place and here and by the medical profession for a conscience clause.
THE MARQUESS OF LOTHIAN: May I ask the noble Lord, Lord Silkin, when he is considering this Amendment on Report, to bear in mind particularly the position of the nurses and the midwives? Under the Bill as it stands it is going to be very unpleasant and difficult for
1086
a young student nurse to put forward her conscientious objections, if she has any. As noble Lords know, the recruitment position of nurses and midwives is not good, and anything which tends to make life more difficult for them in this respect should be avoided. If a young nurse makes things slightly difficult for herself for one reason or another, possibly by raising a complaint and in this case possibly even by objecting, she may find herself in difficulties with her superiors. I would ask the noble Lord to bear in mind problems of this sort when he is considering these Amendments.
THE EARL OF CRANBROOK: I hope that when consideration is being given to this Amendment, as well as the one which follows, which is very much the same, the noble Lord, Lord Silkin, will bear in mind the fact that this is intended to hold the balance between the doctor who claims that he was conscientiously unable to do something and a patient who has been aggrieved by that doctor's refusing to do it. I had some experience of a similar sort when I was a member of a conscientious objectors' tribunal before the last war. The Committee will remember that such tribunals we set up in 1938 or 1939, when one had to hold the balance between the demands of the State upon some young men and the conscientious feeling which the young men had that the State was demanding too much of them. I think the two positions are exactly comparable, and if noble Lords who are skilled in medicine do not mind my saying so, I hope we shall bear in mind that there are people other than doctors to be considered when we are considering this problem.
I am quite certain from my experience of those tribunals—and I imagine that the courts will be in a similar position—that had the boot been on the other foot in that case, with the State constantly trying to prove that a young man was not conscientious, it would have been much more difficult to do justice to the young man, which I have always hoped and trusted we did. I believe quite sincerely that if it is left to the courts to deal with the matter in exactly the same way as the tribunals did in those days, justice would more easily be done if the man who claims he is conscientious has to prove it than if the patient who

1087
feels aggrieved has to prove that he is not. I would earnestly ask noble Lords to bear that in mind.
LORD BROCK: I should like to ask a question on this matter. As I understand it, I have been told that the reason for the inclusion of these two lines which I wish to delete is that they are designed to meet negligence on the part of a medical practitioner, or an allegation of negligence. I should have thought that the Common Law permitted an action for negligence to be taken against him. I do not see why it is necessary to mention this specifically in this new Bill. But perhaps I can be informed whether or not that is so. If it is not so, then I repeat my former comment that it is undesirable and insulting to suggest that a doctor has to prove his objection.
LORD STONHAM: I am sorry if I misled the noble Lord, Lord Brock, but what I said was that the proviso in the conscience clause, and the proviso to which I understand he objects, was put into the present conscience clause in this Bill during the Committee stage in another place. As I understand it, it was then put in to deal with the risk of the doctor who was simply negligent, and might excuse himself retrospectively by putting forward a spurious claim to a conscientious objection. My noble friend's new clause preserves the existing criminal liability, and there is no need for a proviso about the question of proof in relation to criminal proceedings. But he is not wholly certain whether, in the absence of an express provision, the burden of proving conscientious objection in civil proceedings would rest on the defendant, so the proviso would still serve a useful purpose in making the onus clear. This is all these words do, and I do not think the matter can be pursued further at this stage. I would ask the noble Lord, Lord Brock, to consider to-morrow, when we begin, what has been said. I think he will find his objections are covered.
As I have risen to my feet again, perhaps I may refer to one other point with regard to what the noble Earl, Lord Cranbrook, said. This clause now, as moved by my noble friend, covers any person, so that all he said in relation to nurses, quite apart from doctors, is covered. The noble Marquess, Lord
1088
Lothian, spoke as if there were something new about abortion in hospitals. There are annually some 3,000 therapeutic abortion operations in National Health Service hospitals, quite apart from a far larger number of casualties who come into the hospitals as a result of back-street tragedies. I was chairman of a group of five East and North-East London hospitals with over 1,000 beds, where we handled between 30 to 40 of those cases every week. I do not remember during six whole years, however, ever hearing the slightest objection from any member of the staff—and one of the hospitals was a mission hospital, where all the members of the staff (the doctors and nurses, and even the porters) were people who were serving the hospital only because of their devotion to the Christian religion. Do not let us imagine difficulties which have never existed all this time, and which it is scarcely conceivable will arise now.
LORD CONESFORD: I feel a little embarrassed, because the many eminent legal authorities who were here at an earlier stage are not here now. I think that the noble Lord, Lord Silkin, has put in, in perfect good faith, a useful conscientious objection clause, and I am sure that the clause is in general to be welcomed. I think there is a point of a little interest about this question of the burden of proof, and I am not myself convinced that the burden of proof would not rest where he says it ought to rest, even in the absence of these lines. But, if that is the case, that would not make these lines objectionable in themselves.
The only reason I intervene now is because the clause, as I understand it, deals with the question of the duty to take part in one of these operations, but the noble Lord, Lord Stonham, and others have mentioned the question of negligence. My own first impression is that there is very little to do with negligence in this particular clause. The noble Lord, Lord Silkin, gave an answer of the greatest confidence to my noble friend Lord Craigmyle, and his answer may indeed be perfectly correct, though I think it will be well to look into it a little further. I think it may be necessary to consider whether it is necessary to provide anything about possible actions for negligence against doctors which may result from

1089
this measure. I make no particular forecast of what the result of that investigation may be, but I think it has not very much to do with the clause we are now considering.
LORD SILKIN: I have offered to reconsider this. I offered this about a quarter of an hour ago, and I cannot see the point of further discussion on it. Either it is accepted or not. Still less do I see the point of going back to previous Amendments which have been withdrawn.
LORD BROCK: In view of what the noble Lord, Lord Silkin, says, and in view of the fact that, as negligence would appear to me to be covered by Common Law, I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
11.13 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, as an Amendment to the proposed new clause, to omit the proviso and to substitute:
("Provided that in any legal proceedings in which the genuineness of a conscientious objection is disputed, the burden of proof shall rest on the person disputing it.")
The noble Baroness said: A certain amount of discussion on this Amendment has been prematurely conducted. My noble friend Lord Stonham pointed out that the words which I am proposing to omit are inserted in the Bill for the purpose of clarification, for making clear where the onus of proof lies. That I entirely accept. They make it abundantly clear where the onus of proof lies: but I wish to say very strongly that they in fact make it clear that the onus of proof lies in the wrong place, and my Amendment is designed to shift it to the opposite place.
I still feel that it is extraordinarily cynical that we should be passing into an Act of Parliament a statement that when a conscientious objection is asserted by a person employed in the service of a hospital, be he a doctor or be he or she employed in a humbler capacity or in a different specialisation, the assumption should be that, unless it is otherwise proven, this claim to conscientious objection is fraudulent. I think that is a very low depth of cynicism for your Lordships' Committee to fall to, and I would strongly urge that we ought to put the onus of
1090
proof on the person who disputes the genuineness of an objection. I beg to move.
Amendment to Amendment moved—
Leave out lines 5 to 7 and insert the said new proviso.—(Baroness Wootton of A binger.)
LORD AIREDALE: I do not quite understand this. I think it follows from what the noble Earl, Lord Cranbrook, said just now, that if a doctor objected on conscientious grounds to service in the Armed Forces, the doctor would have to prove his conscientious objection just like anybody else. I do not believe the doctor or anybody else would feel insulted at being required to establish the proof of his conscientious objection to service in the Armed Forces. I should have thought that what is sauce for the goose is sauce for the gander. If the doctor's conscientious objection is to something other than serving in the Armed Forces I do not see why he should feel insulted at the burden of proof being the same as if it were the familiar form of conscientious objection to service in the Armed Forces.
LORD ARCHIBALD: May I make a point on this subject? Is there really any way in which anyone can either prove or disprove conscientious objection? The noble Earl, Lord Cranbrook, referred to his position as chairman of a tribunal. I think he recognised the difficulties of accepting proof or disproof. My association with this question goes back to World War One when I was a conscientious objector. I could not get a tribunal to accept the genuineness of my conscience. I submit that there is no way of proving or disproving conscientious objection. I do not think either the Bill as written or the Amendment really goes to the root of the matter. We have to accept that if the person claiming to have a conscientious objection is prepared to swear so on oath, that is as far as you can go. There is no possible proof one way or the other.
THE LORD BISHOP OF DURHAM: Difficult though it is for a man to prove his conscientious objection, I should have thought it impossible for someone else to prove that he had no conscientious objection. In my speech last week I made the suggestion that perhaps before "conscientious objection" the word "declared" might be added. This might

1091
meet the noble Lord's point. He would then have to swear on oath. Perhaps in due course an Amendment may be produced to cover that.
LORD STONHAM: I think the right reverend Prelate has put the thing in a nutshell, as did my noble friend Lord Archibald. But the point about onus is that we imagine a case, for example, where a woman—the person we should always consider first—has sued a doctor on the grounds that his negligent failure to carry out an abortion had caused danger to her health. He sets up a defence that he had a conscientious objection to performing the operation. The onus would then be on the woman to prove he did not have such an objection. As I understand the right reverend Prelate, he said that would be virtually impossible. It is not virtually impossible the other way round: for the doctor to prove it. Because in almost every case there would be a record at the hospital, as I know the noble Lord, Lord Amulree, would agree. It would be something known about the doctor. There would be no difficulty in proving it at all. It would be known. That is why it is in the Bill in those words. When my noble friend, Baroness Wootton of Abinger, asks in her Amendment for the burden of proof to rest on the person disputing it, in many cases it is virtually asking the impossible. Often the plaintiff would be a woman who had alleged negligence and who is met by this defence, and she would be virtually unable to prove it.
LORD CONESFORD: If the doctor had performed the operation and had performed it negligently, how can this clause be relevant at all? Is the noble Lord assuming that the operation has been performed or that it has not been performed?
THE LORD BISHOP OF DURHAM: I assume that if the doctor had a conscientious objection he would not perform the operation, let alone be negligent in doing it. It seems to me that the concept of negligence and the concept of conscientious objection do not match up.
LORD STONHAM: It is the doctor's negligent failure to carry out an operation. This is quite a point. I am stating a position which has occurred. A doctor
1092
negligently failed to carry out an operation for abortion which was medically necessary: it had nothing at all to do with this Bill. He is then sued by the woman patient for the damage to her health, and he sets up the defence that he has a conscientious objection. That is the position I cited.
LORD BROCK: I think this shows the state of confusion that exists. If the operation was necessary on medical grounds, then this is related to his medical conscience. This is exactly what I was trying to say, that there are various forms of conscience, and it is the medical conscience that I wish to have acknowledged—the man who says, "I did not do this because I had conscientious grounds". If the operation was medically desirable, his conscientious grounds would rest on something else. They might be religious, moral, intellectual or what-not, but they would not be related to what 1 wish to have recognised: that if the operation is medically desirable or undesirable, it should be treated in that way.
LORD MOYNE: A doctor should declare his conscience when he is consulted. I do not quite see how this can be brought in, but it seems a practical point. If the patient knows that the doctor has a conscientious objection, she could go to another doctor. But this is far from the actual words that we are discussing.
BARONESS WOOTTON OF ABINGER: I should feel very much happier if this clause were entirely redrafted in the sense that the noble Lord, Lord Moyne, has just suggested, to make it perfectly clear that any person who had a conscientious objection should be required to record it at the time. I think the Committee is getting somewhat confused, and I include myself in that category. But I am perfectly clear that the analogy which has been used of conscientious objectors' tribunals dealing with objections to military service is totally irrelevant. I had always supposed that tribunals which dealt with military service approached the matter impartially, neither biased to believe that the objector was genuine, nor biased to believe that he was not. At least I thought that that was what was required of them, even though that requirement was not always fulfilled.

1093
In this case my noble friend Lord Stonham is drawing a very curious analogy. He is suggesting that a doctor can retrospectively produce a conscientious objection. If you pursue the analogy of military service tribunals, it is equivalent to saying that when a soldier has run away from battle, he is entitled to say, "I had a conscientious objection to fighting". This analogy is neither here nor there. I still feel very strongly that we ought to accept in good faith—we speak elsewhere about the good faith of the medical profession—that when doctors say they have conscientious objections, they have conscientious objections, and that it is for those who dispute it to establish that the objection is false. This would be entirely met if the conscientious objection had to be registered at the time of the operation. I earnestly hope that my noble friend Lord Silkin will consider the Bill on those lines.
LORD SILKIN: I promised to look at this again a long time ago. I do not know what all this talk is about—
BARONESS WOOTTON OF ABINGER: If my noble friend—
LORD SILKIN: No, I have not given way. May I say that my noble friend is merely coming back to the same point that was raised about three-quarters of an hour ago, this question of whether the burden of proof should rest on the doctor or not. I have undertaken to look at this again and, incidentally, I suppose I shall have to look at the whole clause. If that is acceptable to the Committee cannot we bring an end to this discussion and go on to the next Amendment?
BARONESS WOOTTON OF ABINGER: My noble friend is not quite correct.
LORD SILKIN: I withdraw my offer, and I shall leave it to the Committee.
BARONESS WOOTTON OF ABINGER: My noble friend said that I have come back to the point which was raised three-quarters of an hour ago. I have raised a new point. Perhaps he did not listen to it. The clause will be satisfactory if it requires a conscientious objection to be registered at the time of the operation. I asked him to reconsider that point. I have listened to the whole of the discussion and I have not heard this point raised before.
On Question, Amendment negatived.
LORD SEGAL: In view of the Amendments already moved by my noble friend Lord Silkin and accepted by the Committee, I feel that my Amendment, No. 25A, to the proposed new Clause 4 is now completely irrelevant and I do not wish to move it.
11.26 p.m.
LORD CRAIGMYLE LORD CRAIGMYLE moved, as an Amendment to the Amendment, to add to the proposed new Clause 4:
"( ) No person shall be disqualified from holding a medical or nursing appointment under a hospital board by reason of his having a conscientious objection to participating in any treatment authorised by this Act, and no person holding such an appointment shall receive any less emolument or be deprived of, or be disqualified from, any promotion or other advantages by reason of the fact that he has such conscientious objection."
The noble Lord said: I hope that the noble Lord, Lord Silkin, when he is having a new look at this clause, will consider putting in either this set of words or something to the same effect. My Amendment seeks to ensure that no one shall be put in a less advantageous position in his profession because he has a conscientious objection to abortion than he would be if he had no such objection. The wording is based entirely on Section 30 of the Education Act, which deals with conscientious objection to conducting religious services in schools. That is for the benefit of atheist teachers, or teachers who happen to be teaching in a school conducted by a denomination other than their own. The cases are to some extent comparable, though not exactly so, but I think that the same form of words is reasonably effective for the purpose.
The only difficulty I see in this new clause is that I am not by any means convinced that it would be effective. It is easy to say that we make no discrimination in promotion on grounds of conscientious objection, or anything like that, and yet to carry on doing just that. The nasty example that comes to mind is the ineffectiveness of the anti-discrimination clauses in the Constitution of Northern Ireland. However, I will not go into that at this late hour. Nevertheless, I think that if some antidiscrimination clause such as this were inserted, either as a separate clause or in the conscientious objection clause

1095
itself, it would at least show that Parliament intended that there should be no discrimination. I beg to move.
Amendment to Amendment moved—
Line 11, at end insert the said subsection.—(Lord Craigmyle.)
BARONESS STOCKS: I beg your Lordships to leave a certain freedom in this respect to hospital boards. May I give an example of the kind of thing that could happen? Some time ago I happened to sit on a committee with the matron of a large maternity hospital who arrived in a state of some fury because, she said, she had spent the last week-end "scratching the backs" of a non-Catholic surgeon, a non-Catholic anaesthetist and a non-Catholic theatre sister. All three had refused to officiate in the case of a woman who had been ordered to have a sterilisation, following a dangerous Caesarean section, and the matron was put to considerable difficulty to replace them. I think that hospitals, especially maternity hospitals, ought to be allowed to exercise a certain amount of discretion against getting too many members of their staff who are not prepared to carry out what is part of the medical policy of the hospital. In the same way, it would be rather dangerous to get a large proportion of nurses and doctors who were Jehovah Witnesses, in view of the fact that any moment they might be required to give blood transfusions, which would be against their conscience.
I suggest that this Amendment is unnecessary. I do not think there is any great likelihood of discrimination being widespread, but I think that in certain cases some freedom should be allowed to refuse to appoint to certain posts persons who are not prepared to carry out medical duties connected with those posts.
On Question, Amendment to Amendment negatived.
On Question, Amendment agreed to.
Clause 5 agreed to.
11.32 p.m.
Lord Strange moved, after Clause 5, to insert the following new clause:
Duty of registered medical practitioner on refusal to terminate pregnancy.
". When a registered medical practitioner refuses to carry out treatment for the termination of a pregnancy, he shall sign an official form to an approved welfare officer,
1096
who, if the pregnant woman desires, shall help her towards parenthood or adoption of her child."
The noble Lord said: In moving this Amendment, I should like to say first what nobody else has said, and that is how pleased I am to see the noble Lord, Lord Silkin, here in such good form, as I understand that he has had a little trouble with hospitals—though not over abortion. I remember the noble Lord, Lord Silkin, moving the Second Reading of his Bill on November 11, 1965 (which now seems quite a long time ago), and as he made his speech I knew that I had objection to the Bill. I felt at the time that I had to move this Amendment, and I moved it the whole way through the Bill at every stage until it faded out in the House of Commons.
I am moving the Amendment again now, and I will tell your Lordships why. I told earlier a story which interested me, and I am going to tell it again. I know it is late, and I am as bored and tired as your Lordships are. But this will take only a short time, and it is important. It was the case history of a young girl who was working in an hotel and who tried to commit suicide. She was put in hospital to be looked after. She was given needles and thread, and told to mend linen. After two or three days she confessed to the nurse that she had been swallowing the needles. The nurse got the doctor, and the doctor ordered her to be fed on margarine and cotton wool until they got the needles back. When they got the needles back, he examined her, and found that she was pregnant. She had been trying to create an abortion on herself.
The history of this young girl was that she had always been with her mother. She knew nothing of anything. She went out to work in this big hotel. They took her out to a party; she had drink—which she had never had before—and got rather "tight". She did not know what happened until she found that she was pregnant. I have since checked this case, and it is true. I thought of the incredible agony that young girl's mind went through to make her swallow eight needles, day after day—I think it was for three days. I came to the conclusion then that men cannot understand the mental agony a woman can go through. I knew that under this Bill, whatever the fancy title (it has a rather fancy

1097
title at the moment, but it will always be known to the general public as the Abortion Bill), a great many women, for various causes, would be refused an abortion. Many of them will be in the state of this young girl—ignorant, hopeless, in despair—and I do not know what they will do with themselves.
This is a huge clause in the Bill. Objections were raised that it is difficult to construct the form. If you sit at any desk in this country forms come down on you every day like brown snow. We can print forms in this country, and it is easy to make out a simple form which ensures for the woman that it is secret and confidential. That is the first thing: she must be sure of that. It is very simple for the local authority to put a rubber stamp on it, with the name of the welfare officer and the address she can go to. It is very simple, if a doctor refuses an abortion, to hand a woman this form and say to her: "This is confidential. You can use it or not. But if you want to use it, go to this address, where you will find a very good friend who will guide you and help you". All he has to do after that is to sign his name. That is not much.
I have heard before the objection that it will be too much work for the welfare officers. Well, we live in a Christian country. We are full of churches; we are full of nice women; we are full of associations. Surely we can get volunteers to act as these women's friends. Surely a local authority can pick out the right people, who will be human and really guide these women through: people who have a moral appreciation that people who live in stone houses cannot throw glass; who will not preach to them but see them out to the very end. It is not an unreasonable Amendment.
I know that with regard to this Bill there are a number of noble Lords who have terrific principles. I very much admire anybody who has a principle of any sort. I myself have principles—but I did not get them in a very honourable way. I was just taught them when a child. They were all given the Strange strength, the same force. They are very small. I knew that I must never shoot a fox; I knew I must never be a bore; I knew that I must never show photographs of my family to strangers in rail-
1098
way carriages; I knew that I must never take human life—except in a war, when I must kill everybody I possibly could, though I must first make quite sure which side they were on. So my principles as regards abortion are quite simple. I think if it has got to the stage of what we used to call a Caesarian (though a different name is used now), and a live child is taken out of a woman and killed, it just cannot be right. But in the first stage, in the "wishy-washy" stage, I wonder how right or wrong it may be.
Just think how many women have miscarriages. Nobody knows how many have them. They are having them the whole time; they are having them now, as I am talking to your Lordships. Life is a funny thing. It is like the wind: we do not know where it comes from or where it goes. But we do know that we cannot stop it when it has gone too far. In the first stages, however, I should not think it matters very much. But what I am asking the people with principles like mine—arrived at, of course, in a much better way—is this. Surely what they want is that the rejected women should go to a welfare officer, who will guide them to pregnancy, to motherhood or to adoption. There are a great number of people in this country who want to adopt children. Get this Amendment through this time. It is the last time I shall move it. Be with me. I await your Lordships' wisdom, and I beg to move.
Amendment moved—
After Clause 5, insert the said new clause.—(Lord Strange.)
BARONESS STOCKS: The noble Lord, Lord Strange, has told us what is in fact a most distressing story about a pregnant woman, and the needles. But I suggest that his Amendment is quite unnecessary, because there is already ample provision for informing unmarried mothers, and other mothers, of opportunities for abortion and care. It is already done in most hospitals; I should think probably in all hospitals.
BARONESS ELLIOT OF HARWOOD: May I say one word? The whole of our child care service throughout the country is geared to help exactly these people. It is dealing continually with unfortunate cases; pregnant women who perhaps have

1099
babies and then want to get them adopted, and so on. We now live in a world in which all this is done.
The noble Baroness, Lady Stocks, has said that it is done in hospitals. For 16 years I have been the Chairman of a children's committee and we are continually doing this sort of thing all over the country. While I entirely sympathise with everything the noble Lord, Lord Strange, has said it is quite unnecessary in this day and age to put this Amendment into the Bill because it is being done the whole time, and there is nobody who has a child, illegitimate or otherwise, who cannot get from welfare officers or children's officers—in fact the whole gamut of welfare services—just the kind of help for which the noble Lord has asked.

CONTENTS

Balerno, L.

Craigmyle, L.

Monckton of Brenchley, V.

Barrington, V.

Strange, L. [Teller.]

Moyne, L.

Carnock, L.

Durham, L. Bp.

Sempill, Ly.

Clifford of Chudleigh, L.

Lytton, E. [Teller.]

NOT-CONTENTS

Addison, V. [Teller.]

Gaitskell, B.

Rea, L.

Airedale, L.

Grenfell, L.

St. Davids, V.

Amulree, L.

Hayter, L.

Sandford, L.

Archibald, L.

Henley, L.

Segal, L. [Teller.]

Beswick, L.

Hilton of Upton, L.

Silkin, L.

Boston, L.

Kennet, L.

Sorensen, L.

Bowles, L.

Killearn, L.

Stocks, B.

Byers, L.

Lambert, V.

Stonham, L.

Cranbrook, E.

Listowel, E.

Stow Hill, L.

Elliot of Harwood, B.

Lothian, M.

Strabolgi, L.

Emmet of Amberley, B.

Noel-Buxton, L.

Swanborough, B.

Ferrers, E.

Plummer, B.

Terrington, L.

Clause 6 agreed to.
Clause 7 [Short title and extent]:
LORD SILKIN LORD SILKIN moved, in subsection (1), to leave out "Medical Termination of Pregnancy" and insert "Abortion". The noble Lord said: This is a very simple Amendment to change the Title of the Bill from "Medical Termination of Pregnancy Bill", which always struck me as a rather clumsy phrase, to "Abortion Bill". The fact is that this Bill is known as the Abortion Bill. The whole of the Press refers to it as the Abortion Bill. Whenever anybody talks about it, they never talk about the Medical Termination of Pregnancy Bill. When it is discussed on television or on
LORD STRANGE: I would say to the two noble Baronesses on my right and left that what they say is very kind but it is quite untrue. What will happen is that a wretched woman, who has perhaps never been to a hospital before, will go for an abortion, and will be told, "I am very sorry, I cannot give it to you". She does not know about welfare; she is terrified; she is a pathetic creature who might swallow needles. All I am asking for is a form to introduce her to two charming Baronesses on my right and left who will help her. That is not much to ask. My Lords, I am going to take this Amendment to a Division; support me.
11.42 p.m.
On Question, Whether the said Amendment (No. 26) shall be agreed to?
Their Lordships divided: Contents, 11; Non-Contents, 36.
sound radio it is always referred to as the Abortion Bill, and it is one word instead of four, which is certainly an advantage. Therefore, I hope that the Committee will agree that we change the Title to that by which this Bill is really already known. I beg to move.
Amendment moved—
Page 4, line 15, leave out ("Medical Termination of Pregnancy ") and insert ("Abortion").—(Lord Silkin.)
11.51 p.m.
LORD BROCK: I suggest that the term "Termination of Pregnancy" in this sense is incorrect, and that it would be more correct to say "Abortion". The term "Termination of Pregnancy" can be, and is used up to full term, and it is quite incorrect in the way that it is used in the Title of the Bill. If we

1101
replace the phrase "Termination of Pregnancy" by "Abortion" then the qualification "Medical" should be retained. It is a natural and inevitable accompaniment. I beg to move.
Amendment to Amendment moved—
Before ("Abortion") insert ("Medical").—(Lord Brock.)
LORD SILKIN: Why not "Surgical"? It is just as much a surgical operation as a medical operation. I do not see a need for any adjective at all. One day it may be possible to do this by the simple operation of taking a pill, and what you would call that I do not know. But I hope that the noble Lord will agree that the simpler the better, and let us settle for "Abortion".
LORD BROCK: I should like to know why the original Title was "Medical Termination of Pregnancy"?
LORD SILKIN: I may say that originally the Title was "Abortion". In the two Bills that came before this House it was "Abortion". When it went to another place, for some reason which I do not know and I cannot understand, they thought it would sound better to cover up "Abortion" and call it by some other name.
LORD BROCK: I am glad to hear that even at this late hour Lord Silkin is no longer putting forward the views of the other place in support of the Bill. I think that at this late hour it would be improper for me to press this, and therefore I beg leave to withdraw the Amendment.
Amendment to Amendment, by leave, withdrawn.
VISCOUNT BARRINGTON: I think I can move this Amendment to the Amendment quite shortly. I suggest that we should add the words "Law Reform" after the word "Abortion", so that it becomes the Abortion Law Reform Bill. I suggest this on the ground that it is not a Bill for abortion, but a Bill for the reform of the law about abortion, whether it is done with a scalpel or with some undiscovered chemical. I beg to move.
Amendment to Amendment moved—
After ("Abortion") insert ("Law Reform").—(Viscount Barrington.)
LORD SILKIN: This is something more than merely law reform abortion. We
1102
have agreed to extend, though not as far as I should have liked, the grounds on which abortion can be carried out. It is true that the Bill as it now stands has reformed the law, but it goes beyond that, and it would not be really an explanatory title to call it merely "Law Reform Abortion".
VISCOUNT BARRINGTON: I am afraid at this late hour the words have been put in the wrong order. I suggested Abortion Law Reform Bill.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): Does the noble Lord wish to withdraw his Amendment?
VISCOUNT BARRINGTON: I have made clear that it was not, as Lord Silkin said, in the opposite order and that my suggestion was "Abortion Law Reform Bill". I beg leave to withdraw my Amendment to the Amendment.
Amendment to Amendment, by leave, withdrawn.
On Question, Whether the Amendment (No. 28) shall be agreed to?
THE EARL OF IDDESLEIGH: It gives me particular pleasure to be able to support Lord Silkin in this Amendment. Two years ago it was agreed between the noble Lord and myself that we should pay each other respect for our sincerity. I do not think that in the controversies over this Bill we have failed to pay each other that tribute of respect which we then promised. On this matter I am perfectly certain that the noble Lord, Lord Silkin, is entirely right. He calls the operation which we are discussing by its proper name, and I trust that the House will give him this Amendment.
LORD SEGAL: Before the Committee finally decides on the rights or wrongs of this Title, it is only fair to point out that the law of this country bristles with euphemisms. This House has recently passed the Sexual Offences Act. That was on more than one occasion called by at least one noble Lord by a single word instead of two words, yet we prefer to retain its original Title, although it does not necessarily convey to everyone the actual meaning of the Act. We still retain a Vagrancy Act of 1851 which comprises a whole collection of various offences which would not be pleasantly translated into ordinary terminology.

1103
There is no point in pressing this matter and retaining the title Medical Termination of Pregnancy Bill, and we should all be well advised to accept my noble friend's suggestion and change the Title to the "Abortion Bill."
LORD SILKIN LORD SILKIN moved to add to the clause:
"( ) This Act shall come into force on the expiration of the period of six months beginning with the date on which it is passed."
The noble Lord said: I am sure that this Amendment will commend itself to the noble Earl, Lord Iddesleigh, because it proposes to postpone the operation of this Bill for six months. That, from his point of view, is better than its coming into operation at once. The purpose of this Amendment is merely to enable the Ministry of Health to make the necessary preparations in order that the Bill may get off to a good start. They have to do certain things in the hospitals, and so on, and I am sure that if those of us who have been strong supporters of the Bill can actually get it through this Session, we shall restrain ourselves and be patient and be quite prepared to wait six months before it comes into operation. I beg to move.
Amendment moved—
Page 4, line 16, at end insert the said subsection.—(Lord Silkin.)
LORD CRAIGMYLE: Could we have an assurance from the Front Bench that, in the course of this six months the regulations necessary under Clause 2 will be prepared?
LORD STONHAM: This period of six months is necessary if this Bill becomes an Act, and obviously it cannot become an Act until the very end of the Session. So in effect it will become operative some time in March or April of next year. By that time it is thought that all the necessary preparations could be made so that the Act could be fully implemented, and all the necessary preparations could be made in hospitals and in the Service as a whole.
House resumed: Bill reported with Amendments.

CONSOLIDATED FUND (APPROPROATION) (No. 2) BILL
Brought from the Commons; read 1a.
MINISTRY OF HOUSING AND LOCAL GOVERNMENT PROVISIONAL ORDER (GREATER LONDON PARKS AND OPEN SPACES) BILL
Returned from the Commons, with the Amendments agreed to.
ESSEX COUNTY COUNCIL (CANVEY ISLAND APPROACHES, ETC.) BILL
  LONDON TRANSPORT (No. 2) BILL
  Returned from the Commons, with the Amendments agreed to.
  PORT OF LONDON AUTHORITY REVISION ORDER 1967
  Reported from the Joint Committee with Amendments: the said Amendments to be printed; the Minutes of Evidence taken before the Committee ordered to lie on the Table.