HL Deb 26 July 1967 vol 285 cc939-67

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 injury to the physical or mental health of the pregnant woman.

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 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.)


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.


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 Amendment, No. 2, at the same time as this one, if it is for the convenience of the Committee.


I should be content to discuss my Amendment, No. 3, also.


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.


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 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 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.


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 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.


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.


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.


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 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.


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 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.


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.


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).


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.


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 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.


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.


Would the noble Baroness mind if it was an ordinary practitioner or a consultant in psychological medicine?


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.


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.


The noble Lord will see that under my Amendment anyone on a list approved by the Minister will suffice, as well as a consultant.


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.


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 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.


I think the relevant word is "appropriate".


That leaves open the question of what is "appropriate".


Yes, certainly.


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, 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.


It has not got that defect. It is not just the Minister of Health; it includes the Secretary of State.


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 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.


Surely the noble Lord will accept that the patient's own doctor is presumably the first medical practitioner, not the second opinion.


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.


I must say I admire the ingenuity of my noble friend's list of defects.

3.17 p.m.


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.

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.


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 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.


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 deal with this part of this Bill is to have a proper insistence on the terms of Clause 1(2).


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.


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.


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 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.


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.

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.



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 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.


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.


I would interrupt the noble Viscount to point out that it says "approved for the purpose".


For the purpose of performing an operation; but the point is that there is nothing about approving the person who does the operation.


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.


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- 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.


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 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.


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 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—


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.


I have not admitted that my Amendment was defective.


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 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.


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.


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."


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.


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.


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.


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 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.


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.


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.


I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

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.

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.
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.