Lords Sitting of 23 October 1967

Preamble
Reassembling after the Summer Recess, the House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Truro

THE LATE EARL ATTLEE
2.36 p.m.
THE LORD PRIVY SEAL (THE EARL OF LONGFORD): My Lords, I am sure that the whole House will wish to pay tribute to the memory of Lord Attlee. With the death of Lord Attlee the nation loses a great Englishman; one of the few politicians of our time who have fundamentally affected the whole life of our country and can fairly be said to have influenced the course of world history. There passes a man of sublime modesty with a special flavour of his own, widely appreciated; a man whose concern for the under-privileged knew no boundaries of class, continent or colour.
We in this House, which he joined twelve years ago, lose one of our two ex-Prime Ministers—and I am glad that the noble Earl, Lord Avon, is to speak later today. Lord Attlee served here actively and vigilantly until the end, frequently ignoring his state of health to record his vote in the Division Lobby, and contributing tersely and effectively to many of our debates. Approachable to all, utterly devoid of any trace of side, kind and gentle, as his devoted friend Lord Moyle has testified, he was a friend and colleague who increased our pride in our own House by the very fact that he belonged to it.
My Lords, Lord Attlee, as we all know, was Deputy Prime Minister in Sir Winston Churchill's illustrious War Cabinet of 1940 to 1945, and was himself Prime Minister from 1945 to 1951, carrying the burden of being one of the two chief Ministers for eleven consecutive years of exceptional strain. I think that only Mr. Asquith can compare with him there. He was Leader of the Labour Party for twenty years from 1935 to 1955. Here, his record
1336
stands alone in our century. Clearly, this was a pre-eminent man, recognised as such by his countrymen.
One question that may be long discussed is whether his elevation to these great positions owed more than is usual to fortune. Certainly it can be argued that way. Certainly he was never one who would have pushed his way to the first place, claiming it as a right by virtue of his unique gifts. Yet one can just as easily—perhaps more easily. I would think—put the other view. Was it mere chance that he survived almost alone the holocaust of 1931, when nearly all the other Labour leaders were submerged? Was it mere chance that brought to the leadership of the Party, and later brought to the leadership of Britain, a man so superbly qualified, not only morally but also by his own record of service and preparation, for service? Sir Winston Churchill paid generous and repeated tribute to Lord Attlee's indispensable share in the war-winning combination. Sir Winston said of himself when called to the helm in 1940 that all his life seemed to have been a preparation for that hour. The same could be said of Clement Attlee.
Clem Attlee came of a professional family of high repute. His father was President of the Law Society. He was educated at Haileybury and University College, Oxford, of both of which he was a most faithful son. He was called to the Bar. But if any one event in his life was decisive, it was his migration to Toynbee Hall, of which he became Secretary in 1910, in which his interest never flagged and of which he was a zealous President when he died. It was in the East End of London that he discovered the social creed which for the rest of his life governed all his politics. He became convinced in every fibre of his being that all the horrifying distress, injustice and human waste would never be tackled seriously except by a complete social transformation. In those years was born the future Labour Prime Minister who was to carry forward the Welfare State so far and so fast.
Then came a lectureship at the London School of Economics in the Social Sciences, and then four years of war in which he was severely wounded. Sir Winston Churchill testified more than once to his fine war record and to his

1337
prolonged and varied experience of the heaviest fighting. He became Stepney's first Labour Mayor, and he entered Parliament as Member for Limehouse in 1922, holding the seat until it vanished in 1950, and sitting thereafter for West Walthamstow until he left the House of Commons in 1955. By the time he became Leader of the Labour Party in 1935, he was deeply versed in social work and practical local government. He had also acquired, through his membership of the Simon Commission, a specialised interest in India, which led on naturally in later years to what history may regard as the greatest of all his achievements. The liberation of India will always and unforgettably be associated with his name, and hardly less so the whole transformation of Empire into Commonwealth.
This is not the occasion to attempt a balance sheet of the 1945–51 Attlee Government. Those who served in that Government are far too proud of the honour to be regarded as impartial witnesses, and many millions who supported it in the Labour Party or outside it will share their views. No one, however critical of the outcome, will question Lord Attlee's total patriotism, sincerity and dedication in every controversy and at every stage.
Lord Attlee exhibited many qualities with which his predecessors have been richly endowed: a judicial temper like that of Asquith, an Englishness which made him get on particularly well with Baldwin, a courage similar to that of Churchill. One questions, however, whether anyone ever attained so high a place who was so humble in the Christian sense.
Attlee spoke of himself, and honestly thought of himself, as an "ordinary bloke", to be treated in his personal capacity exactly like anyone else. But anyone who presumed on this modesty of his and who thought that he could boss him about did not try that game twice. One recalls his rejoinder to a leading colleague who bombarded him with rather patronising advice soon after he became Prime Minister. "A period of silence," he wrote, "on your part will be welcome." To a subordinate Minister—and here I speak of what I know—who wearied him with doubts as to whether he ought to remain in the Government
1338
he replied: "I will look into the point you mention. Yours ever, Clem." Well, there was nothing to be done after that. He loved to exalt the humble and the meek, in the spirit of the Magnificat; but it caused him no great distress to put down the mighty from their seats. He himself was an "ordinary bloke" and no-one else had much right to behave as anything else.
In the end, we think of him as a highly successful politician, as a statesman who proved himself thoroughly at home in the big league of world figures and world issues, and as a man who presided over a peaceful social revolution. But going beyond politics or statesmanship, we think of him as a family man who loved the family in which he was brought up and the family which he and his beloved wife brought up in their turn. We think of his undying love of youth, never seen more clearly than in the last years at Toynbee Hall. We think of his matchless integrity, of his incomparable sense of duty sustaining him in his unambitious, self-sacrificing labours as a youth, in the years of his greatest glory and, not least, in his old age when we all revered him here. It was there, in his deepest nature, that there lay the source of his extraordinary moral authority. It was there that there lay that which made him one of the great ones of the earth.
My Lords, let us thank God that Clem Attlee was raised up to lead and inspire us. I know that the whole House will wish to send a message of profound sympathy and admiration to the family which was so wonderfully dear to him.
2.46 p.m.
LORD CARRINGTON: My Lords, all of us who sit on these Benches would like to associate ourselves with the tribute that the noble Earl the Leader of the House has paid to Lord Attlee. I am proud, if I may say so—because I know the noble Earl is—to be associated as a Trustee with Lord Attlee's Memorial Appeal. A great deal has been said and written about Lord Attlee's distinguished career, more particularly in the momentous years when he was Deputy Prime Minister to Sir Winston Churchill and subsequently Prime Minister in the vital post-war period. But Lord Attlee was for quite a number of years a Member of your Lordships' House and it is during

1339
those years that those of us of a younger generation came to know him and to admire the qualities which enabled him to serve his country in so outstanding a fashion.
As the noble Earl said, Lord Attlee was in many ways a rather deceptive character. He obviously hated fuss and he was a most matter-of-fact man; he scorned the external trappings and concentrated on the core of the matter. He did what he did because he felt it was right. But anybody who misjudged the man because of his lack of fuss and his modesty was likely to be in for a very considerable surprise. Nobody who heard the speeches that he made in this House, even when he was an old man, will forget them. They were short, incisive and to the point. They were, if I may say so, far more effective in demolishing his opponent's case than were some of the rather lengthy and more oratorical efforts of his colleagues beside him. I know this to my cost, for he once did that to me. When he spoke one felt that he did so because he was convinced that he had something useful to say, that he was right and that it was his duty to say it. Outside the House, your Lordships will remember as well as I his invariable kindness and courtesy.
Many tributes have been paid to him for the long period that he served this country in many capacities. I could not possibly equal or add to them; but to me—and I think to all his political opponents—he will always be remembered as a good man, a just man, an honourable man, who did his duty to his fellow-countrymen and to his country. He was a great Englishman—and, my Lords, I do not think Lord Attlee would have minded that simple tribute; I think perhaps he might even have been pleased. We join in sending our sympathy to all the members of his family.
2.49 p.m.
LORD BYERS: My Lords, we on these Benches would certainly wish to be associated most closely with the tributes that have already been offered by the noble Earl the Leader of the House and the noble Lord, Lord Carrington, and to be associated particularly with the sympathy that we wish to see expressed to Lord Attlee's family. I can only say
1340
that I, in common with many of my generation, came, over the years, to have not only a high respect for Lord Attlee's qualities but a genuine affection for him as a person.
I first came into contact with him in the great Parliament of 1945; and no one could fail to realise then, at the beginning of that Parliament, the contribution which he must have made to the success of the Coalition during the war. No one could fail to realise the determination and quiet strength which he brought to a task of re-shaping Britain after the war. But, above all, I remember his continuous preoccupation with the food and welfare of starving millions of people in Europe and Asia at that time. I think the world owes a great deal to his understanding and compassion in that period. We shall always remember him for his firmness, his courage and his common sense, and those who were with him in the political field, on different sides, will be very grateful to have had that experience.
2.51 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, I have only a few words to add. Clement Attlee enriched the life of our country by an example of a man of Christian convictions who lived what he believed. It is right to recall here that he cared very much about the Church of England, and while he was in office he took great trouble with his responsibilities to it and helped the Church in every way he could. He carried into his public life the concern for the individual man or woman, especially for the young, which had inspired his early years in Stepney, and his understanding of the ordinary person was perhaps the secret of his understanding of great affairs of State.
I recall a saying of his which, unconsciously, described his own statesmanship. "I think," he said, "the British have the distinction above other nations of being able to put new wine into old bottles without bursting them." His homely wit was an essential part of his character, as when he said of the work of a Prime Minister, "Democracy means government by discussion, but it is only effective if you can stop people talking." He was all of a piece, and we all loved

1341
him for himself. While each of us has his own picture of Clement Attlee, many of us, I am sure, will specially remember the picture of Attlee waiting on the steps of St. Paul's for the coffin of Sir Winston to be carried out to take his place as a pall bearer near to some of the most famous statesmen who had come from many countries, the most modest of them all, and now standing the test of history beside them.
2.54 p.m.
THE EARL OF AVON: My Lords, I should like to add a few sentences to the very eloquent tributes paid to Lord Attlee by the noble Earl the Leader of the House and by others. It is inevitable, of course, that my mind should go back this afternoon to the long years of the War Cabinet, of which we were both members, and perhaps as much, or more, to those meetings of the Defence Committee, often held late at night, of which Lord Attlee and I were members from the moment that Sir Winston became Prime Minister until his resignation. Of the members of the War Cabinet at that time, I think that only my noble friend Lord Chandos and I are left, and I am quite sure that in what I am going to say now I carry not only my noble friend's judgment but that of all my colleagues here. We would meet often in those days when there was very grim news; and it was when the news was grim that Clem Attlee was at his best. In a rather remarkable way he complemented Churchill. Sir Winston was essentially a "bulldog", in appearance and in speech, but Clem Attlee was every bit as tenacious, and the worse the news was, the more tersely tenacious did Attlee become. It was in those days that I got to understand, as his colleagues did, what his true quality was. Things could never be too bad to Clem, and when one felt perhaps a little depressed and "dunched" oneself, it was good to turn to him and hear the kind of sharp summing up which only he could give, while showing that he never lost confidence in the final outcome.
My Lords, I should like to add only this. It would be wrong, very wrong, to belittle at all the contribution which he made to the War Cabinet. It was always of the same tempo. It was balanced, it was brief and it was firm; and the value
1342
of that to his colleagues was something beyond price in dark days of difficulty. For my part I also had reason to be grateful to him for work we did together at the San Francisco Conference. Perhaps the outcome was not all that either of us hoped, but if things have not worked out as they should, certainly Clem Attlee bears none of the blame. In conclusion, my Lords, I should like to say only this. Clem Attlee is quite assured of his place in history; nothing that we can say will add to that or diminish from it. The service he rendered was to his country and the world, and the monument a partnership in war and an illustrious leadership in peace.
2.57 p.m.
LORD SHERFIELD: My Lords, I rise to add a few words from the Cross-Benches to what has been said in tribute to Lord Attlee. Perhaps I may speak particularly for those of us—and there are many on these Benches—who have in the past been public servants of one sort or another and who have tended to judge Cabinet Ministers not so much by their politics as by the manner in which they dispatch public business. From this point of view Lord Attlee was outstanding—always calm and unemotional in council, always rapid and definite in decision, always clear and precise in instruction. However unassuming and undemonstrative he might be there was no mistaking the quickness of his mind, the clarity of his thought and the firmness of his decision.
I have recollections of him in many different situations. Working directly to him was a pleasure. The papers always came straight back within an hour or two, either with a clear instruction or with drafts and action approved. I recall escorting him across the Atlantic in a flying-boat on the way to an International Labour Office conference held in New York in 1941. Though he was Deputy Prime Minister, he passed almost unnoticed by passengers and crew. We arrived in New York to a huge Press conference at a critical moment in American politics, when one wrong phrase might have been very serious. It was a very good conference, frank, open and good-humoured The correspondents went off rejoicing, only to find they had nothing to catch hold of or to exploit; it was a masterly piece of Press handling.

1343
A similar scene was later enacted in Washington. This visit of Lord Attlee to the United States was wholly successful, as indeed were subsequent visits to Washington, when Lord Attlee was Prime Minister, for talks with President Truman. Lord Attlee established a close understanding with Mr. Truman, and this was most beneficial to Anglo-American relations, especially in the difficulties which beset them in the immediate postwar period.
At Government House in Ottawa, during one of these visits to North America, I remember the Prime Minister coming quietly into the typing pool, sitting down among the shorthand typists at an unoccupied typewriter and tapping out with one finger the notes for a speech to the Canada Club which was most effectively delivered later in the evening. Finally, my Lords, it was fascinating to watch him in committee, sitting hunched in the Chair, drawing exquisite patterns in coloured chalks on a piece of paper while the arguments swayed to and fro, and then bringing the discussion to a rapid close with a short and sharp decision.
Others can speak, and have spoken today, with much more authority than I about Lord Attlee's Parliamentary life and his political outlook and achievement. But those who worked with him will always remember him with affection and respect, and I myself am quite sure that his reputation as a statesman and as an administrator will rise steadily as the history of our times comes to be written.

INQUESTS IN SUICIDE CASES
3.0 p.m.
THE EARL OF KINNOULL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To aks Her Majesty's Government whether consideration will be given to altering the present practice under English law to the practice under Scottish law, so as to avoid the unhappy glare of publicity following cases of suicide.]
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the whole of the law relating to coroners
1344
and coroners' courts comes within the terms of reference of a Committee under the chairmanship of His Honour Judge Brodrick which was set up in 1965 by my noble friend Lord Stow Hill, who was then Home Secretary. I understand that the possibility of dispensing with inquests in some cases of suicide is one of the matters to which the Committee is giving attention.
THE EARL OF KINNOULL: My Lords, may I thank the noble Lord for his reply and ask him whether he can give an indication of the number of suicides in England and Wales, which seem to be increasing year by year.
LORD STONHAM: My Lords, I cannot give any figures of the relative increase or decrease or of how the movement has been in recent years. In 1964, the total number of inquests was 26,988. In that year, coroners in England and Wales returned 5,565 suicide verdicts. In addition, they returned 1,502 open verdicts, a few of which may have related to suicide.

OPEN AIR MEETINGS AND PROCESSIONS IN WESTMINSTER
LORD BROCKWAY: 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 on what grounds open-air meetings and processions within one mile of the Palace of Westminster have been prohibited during the sittings of Parliament on Friday evenings after Parliament has adjourned and whether this regulation has been reconsidered.]
LORD STONHAM: My Lords, the Sessional Orders of your Lordships' House and of another place require the Commissioner of Police of the Metropolis to facilitate the passage of Members to and from both Houses during the sitting of Parliament, and for this purpose the Commissioner directs, under Section 52 of the Metropolitan Police Act 1839, that assemblies or processions of persons shall not take place in the vicinity. As neither House sits in normal circumstances on Friday evenings, the Commissioner has decided, following consultation between

1345
the Home Office and the authorities in both Houses, that assemblies and processions will be permitted after 6 p.m. on any Friday on which neither House of Parliament is sitting late.
LORD BROCKWAY: My Lords, is my noble friend aware of the appreciation that is felt, not only of the Home Secretary but also of the Commissioner at Scotland Yard and of the Committees of both Houses of Parliament, in reaching this decision?
LORD STONHAM: My Lords, I am most grateful for my noble friend's observation and I will certainly see that what he has said is conveyed to my right honourable friend and to the Commissioner.
LORD BALFOUR OF INCHRYE: My Lords, is the Minister quite sure that this relaxation is not going to encourage the sort of horrible hooliganism we saw yesterday in Grosvenor Square and that it will not encourage young people in continuance of this disgraceful conduct?
LORD STONHAM: My Lords, I would mention to the noble Lord that exceptionally on March 3 of this year the Commissioner gave permission for a procession at 10 o'clock at night, and again in May this year—that was during the Whitsun Recess—he permitted the lining of the streets between U Thant's hotel and Central Hall, Westminster. No untoward incident occurred. While no-one can forecast what may happen when there is a procession, certainly the police have always shown themselves able to cope, and I know that they will continue to do so.

ARMED FORCES: BOYS' SERVICE AND DISCHARGE RIGHTS
LORD BROCKWAY: 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 whether a decision has yet been made following the recommendations of the Committee on the Age of Majority that boys who join the Armed Forces shall be given periodical opportunities to obtain discharge before the age of thirty.]
THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON): My Lords, as your Lordships are aware, my honourable friend the Minister of Defence for Administration is examining the recommendations made by the Lord Chancellor s Committee in the context of a study of boys' service in the Armed Forces. The issues involved are complex and difficult and he is not yet in a position to announce a decision.
LORD BROCKWAY: My Lords, may I ask my noble friend, first, whether he is aware of the very strong support for the recommendations of this Committee, and, secondly, whether he is aware that when a deputation met the Minister in July he indicated that his decision on these matters would be given within a very reasonable period? May I ask whether he will try to expedite the decision?
LORD SHACKLETON: My Lords, I am certainly aware of the strength of feeling, because the noble Lord himself expressed this with great eloquence, if I may say so, in your Lordships' House, I know that my right honourable friend had hoped to announce a decision. I can only say that the problem is a difficult one. I share my noble friend's wish that a decision will be made as soon as possible, but I am afraid that I cannot say how soon it will be.
BARONESS SUMMERSKILL: My Lords, could there not be an interim report on this matter? Is my noble friend aware that while this matter is dragging on boys of 15 are contracting, through their mothers, to serve in one of the Armed Forces for a number of years, and that this kind of procedure would have no legal validity in any other field?
LORD SHACKLETON: My Lords, boys do not actually contract through their mothers. Their parents are called upon to express agreement. I fully appreciate my noble friend's wish for an interim solution, but I do not think that this is a problem which lends itself to an interim solution. Either the nettle is grasped and a solution is found, or it is not.
LORD GIFFORD: My Lords, could my noble friend give the House an assurance that he will make representations to the Minister so that a decision about this

1347
very unsatisfactory practice can be made as soon as possible?
LORD SHACKLETON: My Lords, while I sympathise with my honourable friend in facing a very difficult problem, I will certainly give the undertaking that I personally will convey to him the views that have been expressed.

THE CASE OF JAMES HANRATTY
LORD RUSSELL OF LIVERPOOL: 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 Home Secretary is now in a position to make an announcement regarding the appointment of an independent Commission of Inquiry into the A6 Murder.]
LORD STONHAM: My Lords, my right honourable friend expects to be able to make a statement very shortly.

DINNER ADJOURNMENT
LORD BESWICK: My Lords, with your Lordships' permission, I should like to make a short Business Statement. It is a little difficult to say how long the House will be sitting to-day, but it is more than likely that we shall have to go on until after dinner. There will therefore be a dinner adjournment at some moment after 7.30 o'clock for approximately one hour.

BUSINESS OF THE HOUSE
3.9 p.m.
THE EARL OF LONGFORD THE EARL OF LONGFORD rose to move, That Standing Order No. 43 (Amendments on Third Reading) be dispensed with for the purpose of allowing amendments to be moved without notice on the Third Reading of the Abortion (No. 2) Bill. The noble Earl said: My Lords, I rise with a little diffidence to move the Motion standing in my name on the Order Paper. Long ago I learned to recognise that Standing Orders accepted by Parliament had good reasons
1348
for their existence and I should be the first to argue that we should not lightly set aside any of our Standing Orders, unless there were some very exceptional circumstance. This Motion is submitted on the basis that there is an exceptional position in regard to the Abortion Bill and we therefore venture to suggest to the House that some exceptional step is necessary.
It has been suggested that on one or more of the Amendments to be discussed on the Report stage some new possibility of agreement might conceivably emerge and, as things are, if Standing Order No. 43 is not suspended, agreement could not be expressed in a new Amendment. Ideally, I concede, the Third Reading should not be taken until after a suitable interval; and from that point of view, even to-morrow would be better than later to-day. But one must also recognise that if another place is to be given an opportunity on Wednesday to consider Lords Amendments, and also to put forward Amendments in lieu, then we must complete our procedures to-day. My understanding (I hope I am not wrong) is that this Motion is acceptable to most of those most prominently concerned on both sides of this controversy, and I hope, indeed, to all of them. Therefore, with diffidence, but with confidence that it is the best proposal that I can put before your Lordships, I bring it forward this afternoon. I beg to move.
Moved, That Standing Order No. 43 (Amendments on Third Reading) be dispensed with for the purpose of allowing amendments to be moved without notice on the Third Reading of the Abortion (No. 2) Bill.—(The Earl of Longford.)
LORD SALTOUN: My Lords, I am sorry, but I do not think that your Lordships should give assent to this Motion. If you do so, it will be, I think, without precedent. It may well be, as the noble Earl the Leader of the House has said, that the differing parties on any particular Bill may come to some sort of agreement on a new Amendment which might be moved on Third Reading. But the fact that that is so will not make a Bill a good Bill. Even with the best will in the world when parties are agreed, you often find—and it has been the case time after time in your Lordships' House—that Amendments which have been moved

1349
in Committee with the assent of the whole House have at a later stage been found defective and have once more had to be amended.
It is, I think, without precedent in your Lordships' House that this Standing Order should be suspended in this way. If the Bill is so important that Her Majesty's Government think it right to invade your Lordships' procedure in this way, then I submit that the Government should have given the proper time to the Bill when they adopted it as their own and seen to it. It seems to me that if your Lordships were to assent to this proposal you might do more harm to your position in matters of legislation than any number of Parliament Bills can do, because you will be opening the door for ill-advised and hastily conceived Amendments at the very last stage, when it is too late to alter them. I certainly feel that your Lordships should not assent to this Motion without a Division. It is a fundamentally important Motion, and your Lordships should consider it most carefully.
VISCOUNT DILHORNE: My Lords, I entirely agree with my noble friend Lord Saltoun that this is an important measure and worthy of the most careful consideration. It raises very big issues of social importance affecting large numbers of people in the country; indeed, I should think it is the most important private Bill that we have had to consider for many, many years. This Bill came to this House at a very late stage. We have not delayed in our consideration of it. Unfortunately, it does not look as if we shall begin our consideration of the Report stage to-day until a pretty late hour. That, I think, is regrettable for a measure of such importance. Because of the pressure of time, it has been found necessary to put down a Third Reading to follow immediately upon the Report stage.
I, for one, welcome this Motion put down and moved by the noble Earl the Leader of the House, because unless this Motion were tabled, it would mean that your Lordships would be depriving yourselves of the opportunity of making any Amendment, however small, on Third Reading. I do not think that we should lightly give up our rights to make Amendments on Third Reading. One cannot table an Amendment for Third Reading until the Report stage is con-
1350
cluded; and, as the noble Earl the Leader of the House, has indicated, it may well be that, in the course of our discussions on Report as to whether a particular word shall be inserted in a certain place, someone will suggest another word instead which will meet with more approval from the House. I think it would be most unfortunate if, in those circumstances, it was not possible to move an Amendment on Third Reading to give effect to the wishes of the House.
It may be that this course is without precedent, but I do not think that this argument suffices to justify this House's depriving itself of the right to make amendments on Third Reading when that right can be secured by the acceptance of this Motion. There is only one thing that I would ask the noble Earl the Leader of the House, and it is this. One does not know—it is impossible to say—whether it will be desired to put down one or more Amendments on Third Reading, but I think it would facilitate the business of this House if there could be a short interval between the conclusion of the Report stage and the Third Reading for consideration of that question, and for the handing in of Manuscript Amendments. I cannot help thinking that this would facilitate the task of the Table; and it might also lead to a reduction in the number of Amendments that would be tabled. I hope that the noble Earl will consider that suggestion favourably, and I hope, also, that the House will support the Motion he has moved.
LORD AMULREE: My Lords, I rise from these Benches briefly to support the Motion which the noble Earl the Leader of the House has moved. While I share the views of the noble and learned Viscount, Lord Dilhorne, I think what is proposed is the best we can do in the circumstances.
LORD CARRINGTON: My Lords, I think that I should say something. I do not particularly support the Motion moved by the noble Earl the Leader of the House, though I will not vote against it. I share some of the misgivings of my noble friend Lord Saltoun. This issue really arises because the Government insisted on treating this House with what I think is grave discourtesy. We were made to carry through the Prices and Incomes Bill in pretty well one day,

1351
when it had been in another place for several months; and this Bill, the Abortion Bill, has also been in another place for a long time. Now your Lordships are asked to get it through in a short space of time in order that it can go back to another place, and get the Royal Assent or not get the Royal Assent before Prorogation.
This may be the best that we can do—and, indeed, I think it would have been necessary, if any different arrangement had been agreed, to sit on into August, and there would have been great difficulties with another place and with the staff of the House with regard to that. But I should like to put it on record that I do not think this is the way that this House should be treated. I do not think it right that we should be asked to sit very late and complete two stages of a Bill of this importance in one day, and I hope that, if your Lordships agree with the Motion, you will see that it does not happen on another occasion.
THE MARQUESS OF SALISBURY: My Lords, I hope that the Government will not regard this as a precedent. Speaking as an old Leader of the House, I am not sure whether the noble Lord, Lord Saltoun, is right in saying that there has never been a case of this type of Motion before. I think there probably has been. But, of course, our rules, broadly speaking, have always been—
LORD SALTOUN: My Lords, may I interrupt the noble Marquess? I said that there had been, but it was negatived.
THE MARQUESS OF SALISBURY: Our rules, broadly speaking, have always been that the Second Reading was devoted to the principles underlying the
Bill, the Committee and Report stages were devoted to Amendments to the Bill, and the Third Reading was for the House to consider the Bill, as amended. If you introduce on Third Reading further Amendments there is no proper opportunity for the House to consider them, as there should be. I think that is a very dangerous precedent. It may be necessary this time, but I hope the noble Earl the Leader of the House will be able to give us an assurance that it will not be done again, and especially, if I may say so, not just to facilitate Government business, but just the passage of a Private Member's Bill.
THE EARL OF LONGFORD: My Lords, I am sorry that the noble Lord, Lord Saltoun, whose attitude to our business commands special respect here, should be so critical. I would only say to him and one or two other noble Lords, particularly Lord Carrington, that this, of course, is not some sly manœuvre by the Government, who are completely neutral on this Bill. As the noble Lord who, for the time being, is Leader of the House, all I am concerned with is to try to provide a procedure acceptable to the House. In spite of one or two hard words which have fallen from noble Lords, I hope that this procedure will be considered the best in the circumstances. I agree entirely with those who say this should not happen again. I hope, therefore, that the noble Lord will withdraw his opposition and that the House will accept this Motion.
3.21 p.m.
On Question, Whether the Motion shall be agreed to?
Their Lordships divided: Contents, 108; Not-Contents, 6.

CONTENTS

Aberdare, L.

Brockway, L.

Craigmyle, L.

Addison, V.

Buckinghamshire, E.

Cranbrook, E.

Ailwyn, L.

Buckton, L.

Crook, L.

Amherst, E.

Burden, L.

Darwen, L.

Amulree, L.

Burton of Coventry, Bs.

Dilhorne, V.

Arwyn, L.

Byers, L.

Dinevor, L.

Ashbourne, L.

Canterbury, L. Abp.

Drumalbyn, L.

Asquith of Yarnbury, Bs.

Carnock, L.

Dundee, E.

Auckland, L.

Champion, L.

Durham, L. Bp.

Barrington, V.

Citrine, L.

Exeter, L. Bp.

Beswick, L.

Cohen, L.

Falmouth, V.

Boothby, L.

Colgrain, L.

Faringdon, L.

Bowles, L. [Teller.]

Cork and Orrery, E.

Fisher, L.

Bristol, L. Bp.

Coutanche, L.

Gardiner, L. (L. Chancellor.)

Brock, L.

Craigavon, V.

Gifford, L.

Glasgow, E.

Molson, L.

Shackleton, L.

Grantchester, L.

Monson, L.

Sherfield, L.

Gridley, L.

Moyle, L.

Silkin, L.

Haddington, E.

Moyne, L.

Silsoe, L.

Hall, V.

Noel-Buxton, L.

Soper, L.

Harvey of Tasburgh, L.

Norwich, V.

Sorensen, L.

Henley, L.

Pargiter, L.

Soulbury, V.

Hilton of Upton, L. [Teller.]

Phillips, Bs.

Stocks, Bs.

Hughes, L.

Piercy, L.

Stonham, L.

Hurcomb, L.

Popplewell, L.

Strang, L.

Ironside, L.

Raglan, L.

Strathcarron, L.

Jellicoe, E.

Redesdale, L.

Summerskill, Bs.

Jessel, L.

Rosslyn, E.

Tangley, L.

Kennet, L.

Rowley, L.

Taylor of Mansfield, L.

Kindersley, L.

Sainsbury, L.

Truro, L. Bp.

Latham, L.

St. Aldwyn, E.

Vernon, L.

Leatherland, L.

St. Davids, V.

Wade, L.

Listowel, E.

Segal, L.

Waverley, V.

Longford, E. (L. Privy Seal.)

Selkirk, E.

Wells-Pestell, L.

MacAndrew, L.

Sempill, Ly.

Winterbottom, L.

Mitchison, L.

Serota, Bs.

Wootton of Abinger, Bs.

NOT-CONTENTS

Clifford of Chudleigh, L.

Fortescue, E. [Teller.]

Portal of Hungerford, V.

Ferrier, L.

Horsbrugh, Bs.

Saltoun, L. [Teller.]

On Question, Amendment agreed to.

Resolved in the affirmative, and Motion agreed to accordingly.

SEA FISH CONSERVATION BILL [H.L.]
3.35 p.m.
House in Committee (on Recommitment) (according to Order).
House resumed: Bill reported without further Amendment; Report received.
Then, Standing Order No. 41 having been suspended (pursuant to the Resolution of July 26):
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I beg to move that this Bill be now read a third time. This is a Consolidation Bill, I think the twelfth of this Session, and as usual your Lordships are much indebted to the Members of your Lordships' House who serve on the Joint Consolidation Committee on Consolidation Bills, but particularly perhaps to the noble and learned Chairman and the noble Viscount, Lord Colville of Culross, who I think has given special attention to this Bill.
This is a 1949 Act consolidation. The Committee have reported that they have considered the Bill; that no representation was received by the Committee with respect to the Memorandum setting forth the corrections and minor improvements
1354
of the law proposed in the Bill. The proposals were approved by the Committee without alteration. The Committee have made certain Amendments which they have considered necessary to improve the form of the Bill. The Committee are of opinion that the Bill consolidates the existing law with such corrections and minor improvements as can properly be authorised under the Consolidation of Enactments (Procedure) Act 1949, and they consider that there is no point to which the attention of Parliament ought to be drawn. I beg to move.
Moved, That the Bill be now read 3a.—(The Lord Chancellor.)
On Question, Bill read 3a, and passed, and sent to the Commons.

LEASEHOLD REFORM BILL
3.37 p.m.
Order of the Day for the Third Reading read.
LORD SHACKLETON: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Leasehold Reform Bill, has consented to place her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament for the purposes of the Bill.
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET): My Lords, I beg to move that this Bill be now read a third time.
Moved That the Bill be now read 3a.—(Lord Kennet.)
On Question, Bill read 3a, with the Amendments.
Clause 1:
Tenants entitled to enfranchisement or extension
1.—
(3) In this Part of this Act references, in relation to any tenancy, to the tenant occupying a house as his residence shall be construed as applying where, but only where, the tenant is, in right of the tenancy, occupying it as his only or main residence (whether or not he uses it also for other purposes); but—
(a) references to a person occupying a house shall apply where he occupies it in part only; and
LORD BROOKE OF CUMNOR LORD BROOKE OF CUMNOR moved, in subsection (3), to leave out paragraph (a) and insert:—
"(a) where a person so occupies part only of a house, references to his occupying the house shall apply if, and only if, he so occupies a substantial part of it; and".
The noble Lord said: My Lords, I beg to move Amendment No. 1. The Bill, as your Lordships will remember, provides that a tenant who for five years has occupied a house as his only or main residence may claim the right of enfranchisement, even if he occupies the house only in part. This provision was queried in Committee by my noble friend Lord Molson, who moved an Amendment which would have had the effect of substituting "the main part" for the word "part". The Government resisted that on the ground that it might be difficult to judge which was the "main part", and on the further ground that if a shop with living accommodation over it had been occupied by a shopkeeper for a number of years, and then he wished to give up the shop business and retire to live in the flat above, he should have the right to enfranchise even though the flat was not the "main part". I think my noble friend agreed that his was not a wholly satisfactory Amendment, and withdrew it. But some of us remain anxious about the matter, and indeed I
1356
think the Government themselves would admit that there is a problem here.
We know, both from advertisements that have appeared in the Press and, as I am aware from having seen copies of letters, from representations made direct to the Ministry, that there are going to be people owning leasehold houses, but not living in them, who intend to see whether they can make a capital profit out of this Bill by going to live for five years in a small part of the house. I do not believe it was the Government's intention that people of that kind should be assisted to make a windfall profit; nor, indeed, can one see any possible advantage to the public interest in that happening. The advantage is solely to the owner of the leasehold who sees that by a "wangle" he can make money. In order to minimise the opportunities for this "wangle" I am moving this Amendment, which would make the paragraph read:
"where a person so occupies part only of a house, references to his occupying the house shall apply if, and only if, he so occupies a substantial part of it".
I am advised that the courts frequently have to interpret the word "substantial" and that it would cause no serious difficulty at that stage. It would make it impossible for a man to move into one tiny part of a house, it may be at great inconvenience to himself, and live there for five years and then to net a substantial capital profit. We have seen that under this Bill capital profits of £5,000 and more will be able to be made on individual houses, and there are many strange people in the world who would not be averse to netting an untaxed capital profit of £1,000 a year by this curious method of settling themselves into a small part of a leasehold house which they own but which they had not previously lived in.
Indeed, there is some virtue in the fact that the word "substantial" has not got the precision of a fraction, because that in itself would be something of a deterrent to the man who thought that he might thus "wangle" a capital profit, in that he could not be absolutely certain whether the little part of the house which he intended to occupy would in fact be regarded by the court at the end of five years as "substantial". It would, of

1357
course, be to his financial advantage to keep the part he occupied as small as possible, because the kind of case where this will arise is where a man owns a house within the rateable value limits and is at present letting off the whole of that house in non-self-contained flatlets; and he then sees that the Bill has provided him with an opening through which he can obtain a substantial capital profit.
I have indicated already that I recognise the grounds on which the Government resisted my noble friend's Amendment, but I ask them to take this Amendment of mine seriously, because I do not think there is any difference between us in the purpose which we all seek to achieve. I do not think the Government are anxious to create opportunities for windfall capital profits by people taking unfair advantage of the letter of this clause although clearly infringing its spirit; and it is in order that such people who are thinking solely of their own private gain and not of the public interest shall be discouraged that I am urging the Government to accept an Amendment on the lines which I have explained, requiring that a person cannot take advantage of the enfranchisement provisions unless he occupies at least a substantial part of the house on which he is claiming enfranchisement. I beg to move.
Amendment moved—
Page 2, line 17, leave out paragraph (a) and insert the said new paragraph.—(Lord Brooke of Cumnor.)
LORD KENNET: My Lords, the Government have the greatest sympathy for the purpose of this Amendment, and we have indeed taken it seriously—to use the noble Lord's words. Before we start to discuss the Amendment we must admit that the problem it seeks to remedy is probably not a serious one, for two reasons: first, the rateable value limits of £400 in London and £200 elsewhere rule out any possibility of the curious persons about whom the noble Lord has spoken making a large profit by this means. Secondly, the opportunity of getting this profit, such as it is, is transitional, since the market in leasehold property can be expected to adjust itself in general to the prospect of leasehold enfranchisement.
We know that there are cases where someone has a leasehold interest in sev-
1358
eral houses, for instance a row of houses in a street, and he lives in one of them. I must admit it is possible that there might be people willing to adopt the extraordinary unpleasant way of life outlined by the noble Lord, namely, that they should pop into one room of each of these houses in turn and stay there for five years, and then move to the next, so that they might get such profit as there is on four houses in twenty years. It would be a lifetime's programme, but of course such people might exist. On the other hand, it is not easy for a leaseholder to push his way into a house occupied by other people. It would take a lot of time and money, as the tenants would expect to be well recompensed for moving to suit his advantage. It seems to us that the likely trouble and expense of carrying out these moves would cancel out any conceivable profit he might get.
We should also not forget the fact of the rising market in leasehold property. Theoretically it should be rising already, and it may be expected to continue to do so, to a limited extent, for a short time; and to the extent that that is true it would be possible for the people we are talking about to take that profit without moving in but simply by selling their leasehold interest to someone who already lives in the house.
The remedy proposed in this Amendment appears to us to be extremely uncertain, because there is so little to guide the courts in their interpretation of the word "substantial", and what there is to guide them is somewhat complicated. There is the case of Palser v. Grinling, [1948] Appeal Cases 291, where the question of what is a "substantial portion" of the rent of a dwelling house was decided by the Court of Appeal, who took the view that 20 per cent. of the whole rent is a substantial portion and that less than 15 per cent. is not a substantial portion, while anything between is a borderline case.
This case came to the House of Lords, where Viscount Simon said:
"'substantial' in this connection is not the same as 'not unsubstantial'; i.e., just enough to avoid the 'de minimis' principle. One of the primary meanings of the word is equivalent to considerable, solid or big. It is in this sense that we speak of 'a substantial fortune', 'a substantial meal', 'a substantial man', 'a substantial argument or ground of defence'.

1359
Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case…"
There the courts are faced with two judgments, conflicting in their emphasis: one, that 20 per cent. is substantial and 15 per cent. is not substantial, and the other that the judge of fact must decide, bearing in mind the dictionary definition of "substantial" as "big".
There is also the case, in 1952, of Margate Pier and Harbour Company v. Yorke. This is in rating law and I admit that it is a little outside the field with which we are dealing, but it is still an interpretation. In that case the Lands Tribunal held that, having regard to all the relevant considerations in that case, 11 per cent. of the receipts of a dock undertaking was a substantial proportion of the volume of business concerned with the shipping and unshipping of merchandise within the relevant section of that Act. Twenty per cent., 15 per cent., 11 per cent., "big"—it is a confusing thing to launch on the courts.
Let us suppose that the courts in general adopted the House of Lords decision on this issue that it is equivalent to "big". We still come face to face with the problem which caused me to ask the House to reject the Amendment moved by the noble Lord, Lord Molson, at an earlier stage: that is, that it would lead to a lot of trouble for certain people who did not, and in the view of the Government should not be required to, occupy a large proportion of the house they were going to enfranchise. One can think of a widow who on the death of her husband has let off rooms in her house which come to more than half—perhaps 80 per cent. of the rooms of the house. Particularly one must think of the shopkeeper who lives above his store, maybe a bachelor or a man with a small family, who lives in a couple of rooms and who might have quite a lot of square footage downstairs for the conduct of his business. If the court were to interpret "substantial" in the more substantial sense, it would prevent enfranchisement of people in those positions, and the Government do not think that enfranchisement should be prevented. The situation is a familiar one. As the Bill stands,
1360
I freely admit there is a tiny rough edge in it. If it were amended in this way, I think there would be larger and more unjust rough edges, and so for these reasons I invite the House to reject this Amendment.
LORD BROOKE OF CUMNOR: My Lords, I have been trying to help the Government to prevent abuse of the provisions of the Bill, and the noble Lord is seeking to prevent me from helping him in that desirable object, an object agreed by him as well as by me to be desirable. I cannot really accept his argument, though I expected that we should hear it, that the need for some amendment of this provision has been removed by the limitation on the rateable values.
In the course of our discussions on the Bill I have been aware time and time again of the Government's unwillingness or inability to recognise that quite large houses may have rateable values of under £400 in Greater London, or under £200 outside London. The arguments that the noble Lord adduced about the ambiguity of the word "substantial" have to my mind an influence in favour of adopting this Amendment, because what we are all seeking to do is to discourage people from taking unfair advantage of the provisions of this clause, and the very fact that the would-be "wander" cannot be certain in advance that he will win the court against this word "substantial" will be a considerable deterrent to him against trying it on.
Had this been an earlier stage of the Bill I should have asked your Lordships to support the Amendment. In view of what has been said on behalf of the Government, and in view of the fact that there will be no further opportunity to consider the detailed terms of the Bill in this House, I think it would be useless for me to press the Amendment now. But I hope your Lordships will agree that there is an important point here, that the Bill has, as the Government have admitted, a rough edge, or, as I would prefer to say, a loophole, in the existing words, and it is a pity that they could not have agreed to amend them. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 4 [Meaning of "low rent"]
3.56 p.m.
LORD KENNEThad given Notice of several Amendments to Clause 4, the first being, in subsection (1), to leave out "one-third" and insert "two-thirds". The noble Lord said: My Lords, I will, with the leave of the House, speak to Amendments Nos. 2, 3, 4, 5, 6 and 14 together, No. 14 being an Amendment to Schedule 3. These Amendments restore the definition of "low rent" in Clause 4(1) of the Bill, but they do so not simply as a tit-for-tat move, because the Government think that the Opposition were wrong to carry the change at an earlier stage, but because Amendment No. 14 to Schedule 3 proposes an alternative solution to this problem which satisfies the Government, and will, I hope, satisfy the movers of the Amendment at an earlier stage.
The Government put forward this set of Amendments as an alternative to the Amendment which was carried in Committee and which defined a "low rent", for the purposes of the Bill, as one less than one-third of the rateable value of the house. We had long debates on that and I do not think I need remind your Lordships of them. From the debates it was clear that the House accepted the proposition that some arbitrary and definite definition of a "low rent" is necessary for the purposes of the Bill. The movers of the Amendment were concerned that the Bill should apply only to leases at genuinely low rents and should not give rights of enfranchisement and extension of the lease to people whose tenancies had at one time been rack-rent tenancies. This is also the view of the Government, but, as I pointed out in Committee stage, the Bill has to provide for rents fixed a century ago, a decade ago, for those being fixed now and those which will be fixed in the future.
It is, of course, quite true to say that many long leases granted 99 years ago are leases at rents which are well below one-third of to-day's rateable values. This probably applies throughout Wales, and in a good many other areas, too. On the other hand, some long leases granted with premiums recently are at genuine
1362
ground rents which exceed one-third of present rateable values. These are the facts, and our difference of opinion should not obscure them. It would not be right to exclude genuine ground rents, and the fraction of one-third allows no safety margin to preclude erosion in the future by further increases of rateable values.
The real substantial difficulty in terms of numbers concerned is the long leases granted during the war and in the postwar years at what were then rack rents which have now become "low rents", measured by the original criterion of two-thirds of current rateable values. The Government have now given further thought to this particular problem, and the group of Amendments I am speaking to now are designed to meet it. They provide, in effect, a means whereby the landlord can defeat a tenant's claim to rights under the Bill if he can show that a tenancy granted between the end of August, 1939, and the date on which the present revaluation took effect was granted at a rent in excess of two-thirds of the letting value of that property at the time having regard to the terms of the lease. The letting value is the full market rent which the property could command in view of the terms of the lease—"the terms of the lease" meaning such things as who does the repairs, all the normal covenants which may go one way or the other.
I commend these Amendments to the House as a compromise which would in my view allow all genuine ground rent leases to qualify for rights of extension and enfranchisement but which would cut out those which can be shown to have been long leases at rack rents when they were created during the quarter of a century beginning with the outbreak of the last war. I hope that this compromise to what has been a difficult situation and a difficult discussion as between one-third and two-thirds will be acceptable to the House, and if it is I will undertake that if the present set of Amendments, 2 to 6, are carried I will move No. 14 in due course when we get to the Schedules which will provide for the new definition of the 25 year period. I beg to move Amendment No. 2.
Amendment moved—
Page 6, line 21, leave out ("one-third") and insert ("two-thirds").—(Lord Kennet.)
LORD BROOKE OF CUMNOR: My Lords, I am grateful to the Government for the further thought that has been given to this matter, arising out of the Amendment which was moved in Committee by my noble friend Lord Molson and carried against the Government. When we were discussing that Amendment I used these words, which appear in column 1015 of the OFFICIAL REPORT for July 11:
"The real issue, to my mind, is whether there are any leases involving genuine ground rents which are above one-third of the rateable value. Nobody in the proceedings here or in another place has quoted any of those on behalf of the Government. There may be some, but I know of none."
During the Recess my attention has been called to two cases of what appear to be genuine ground rents that were above one-third of the rateable value, and I gather from the speech of the noble Lord that the Government are also aware of some such cases. On that ground I am ready to see the matter reopened, and what the Government are proposing to do here is to reopen it.
I hope that we may have the advantage of hearing the noble Lord, Lord Silsoe, on this, because I think that by common consent he is the greatest professional expert on these matters among us. So far as my inquiries have taken me, it seems as if the Government Amendments should be accepted, because I think they will meet the need for providing a margin above the one-third rateable value for a certain number of genuine ground leases, while preventing a number of leases which were originally undoubtedly granted at rack rents rather than at ground rents, created between 1939 and 1963, from qualifying for enfranchisement under the Bill because the rent is under two-thirds of the present rateable value.
These are difficult matters, and I hope that I am doing right in advising my noble friends not to demur to these Government Amendments. I shall be greatly interested to hear what the noble Lord, Lord Silsoe, may have to say; but whatever happens, I feel that this is a justification for the careful work that was done by your Lordships in Committee on this Bill. At that time an Amendment was carried, against the Government's advice, to reduce the limit from two-thirds to one-third, and that has had the satisfactory and salutary result of inducing the Government to examine the whole
1364
issue with fresh eyes and now to bring forward Amendments which, whatever one may think of them, are undoubtedly an improvement on the Bill as it originally came to your Lordships' House.
LORD SILSOE: My Lords, I, too, am most grateful to the Government for having taken a fresh look at this matter. I was one of those who had Amendments down on this difficult question of "low rents". I tried to make two points, both of which are met by this Amendment. The first was that there was all the difference in the world between a building lease and the modern idea where the landlord puts up the capital and lets at a rack rent. The second was that rateable value limits in the second class produced a lot of unfairness between the various cases. I do not think that any of us who spoke in opposition to the Government ever said there was much wrong in true building leases, once one accepts the principle at all in this Bill, in the form of language. What we all said was that these other classes of lease, mostly modern, were far too highly rated at two-thirds. I am therefore naturally glad that both points have been covered. I am sure that this will reduce a great deal of the inequity. I am pleased that the rateable value limit has been dropped for my second class and letting value substituted, a plea that I put in as strongly as I could on the last occasion.
If I may be allowed to say this now, I should like to express special gratitude in regard to the readiness with which many senior and other Ministers were good enough to look into this and to see people about it. We had talks and, for myself, I commend this course. Nothing on this point is, I think, perfect; this seems to me to be a good way out, and I hope that everyone will adopt it.
LORD KENNET LORD KENNET: My Lords, I beg to move Amendment No. 3.
Amendment moved—
Page 6, line 23, leave out ("and") and insert—
("Provided that a tenancy granted between the end of August 1939 and the beginning of April 1963 otherwise than by way of building lease (whether or not it is, by virtue of section 3(3) above, to be treated for other purposes as forming a single tenancy with a previous tenancy) shall not be regarded as a

1365
tenancy at a low rent if at the commencement of the tenancy the rent payable under the tenancy exceeded two-thirds of the letting value of the property (on the same terms).").— (Lord Kennet.)
LORD KENNET LORD KENNET: My Lords, I beg to move Amendment No. 4.
Amendment moved—
Page 6, line 40, at end insert—
("; and
(d) 'building lease' means a lease granted in pursuance or in consideration of an agreement for the erection or the substantial rebuilding or reconstruction of the whole or part of the house in question or a building comprising it.")—(Lord Kennet.)
LORD KENNET LORD KENNET: My Lords, I beg to move Amendment No. 5.
Amendment moved—
Page 7, line 3, at end insert ("; but, in a case where the tenancy derives (in accordance with section 3(6) above) from more than one separate tenancy, the proviso to subsection (1) above shall have effect if, but only if, it applies to one of the separate tenancies which comprises the house or part of it.").—(Lord Kennet.)
LORD KENNET: My Lords, I beg to move the last Amendment to Clause 4.
Amendment moved—
Page 7, line 26, at end insert—
("(5) Where on a claim by the tenant of a house to exercise any right conferred by this Part of this Act a question arises whether a tenancy granted as mentioned in the proviso to subsection (1) above is or was at any time a tenancy at a low rent, it shall be presumed until the contrary is shown that the letting value referred to in that proviso was such that the proviso does not apply.").—(Lord Kennet.)
Clause 9 [Purchase price and costs of enfranchisement, and tenant's right to withdraw.]:
LORD KENNET: My Lords, this is a drafting Amendment to meet a point raised by the Law Society. I beg to move.
Amendment moved—
Page 14, line 31, after ("that") insert ("(subject to the landlord's rights under section 17 below)").—(Lord Kennet.)
Clause 19 [Retention of management powers for general benefit of neighbourhood]:
4.8 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved, to leave out Clause 19 and insert the following new clause:
Retention of management powers for general benefit of neighbourhood
" .—(1) In the case of any area which is occupied directly or indirectly under tenancies held from one landlord (apart from property occupied by him or his licensees or for the time being unoccupied), the Minister may—

(a) on an application made within the two years beginning with the commencement of this part of this Act, grant a certificate that, in order to maintain adequate standards of appearance and amenity and regulate redevelopment in the area in the event of tenants acquiring the landlord's interest in their house and premises under this part of this Act, it is in the Minister's opinion likely to be in the general interest that the landlord should retain powers of management in respect of the house and premises or have rights against the house and premises in respect of the benefits arising from the exercise elsewhere of his powers of management, and

(b) on an application made within one year of the giving of the certificate, approve, subject to the provisions of subsection (14) and (15) below, a scheme giving the landlord such powers and rights as are contemplated by this subsection.

For purposes of this section 'the Minister' means as regards areas within Wales and Monmouthshire the Secretary of State, and as regards other areas the Minister of Housing and Local Government.
(2) The Minister in considering whether to grant a certificate authorising a scheme for any area, and in considering whether to approve a scheme shall have regard primarily to the benefit likely to result from the scheme to the area as a whole (including houses likely to be acquired from the landlord under this Part of this Act), and the extent to which it is reasonable to impose, for the benefit of the area, obligations on tenants so acquiring their freeholds; but regard may also be had to the past development and present character of the area and to architectural or historical considerations, to neighbouring areas and to the circumstances generally.
(3) If, having regard to the matters mentioned in subsection (2) above, to the provision which it is practicable to make by a scheme, and to any change of circumstances since the giving of the certificate under subsection (1)(a), the Minister thinks it proper to do so, then he may determine—

(a) to exclude from the scheme any part of the area certified under that paragraph; or

(b) to declare that no scheme can be approved for the area;

and before submitting for approval a scheme for an area so certified a person may, if

1367
he sees fit, apply to the Minister for general directions as to matters proper to be included in the scheme and for an indication whether a determination is likely to be made under paragraph (a) or (b) above.
(4) The Minister shall not give a certificate or approve a scheme under this section unless he is satisfied that the applicant has, by advertisement or otherwise as may be required by the Minister, given adequate notice to persons interested, informing them of the application for a certificate or scheme and its purpose and inviting them to make representations to the Minister for or against the application within a time which appears to the Minister to be reasonable; and before giving a certificate or approving a scheme the Minister shall consider any representations so made within that time, and if from those representations it appears to him that there is among the persons making them substantial opposition to the application, he shall afford to those opposing the application, and on the same occasion to the applicant and such (if any) as the Minister thinks fit of those in favour of the application, an opportunity to appear and be heard by a person appointed by the Minister for the purpose, and shall consider the report of that person.
(5) Subject to subsections (2) and (3) above, on the submission of a scheme to the Minister, he shall approve the scheme either as originally submitted or with any modifications proposed or agreed to by the applicant for the scheme, if the scheme (with those modifications, if any) appears to him to be fair and practicable and not to give the landlord a degree of control out of proportion to that previously exercised by him or to that required for the purposes of the scheme: and the Minister shall not dismiss an application for the approval of a scheme, unless either—

(a) he makes an order under subsection (3)(b) above; or

(b) in his opinion the applicant is unwilling to agree to a suitable scheme or is not proceeding in the matter with due despatch.

(6) A scheme under this section may make different provision for different parts of the area, and shall include provision for terminating or varying all or any of the provisions of the scheme, or excluding part of the area, if a change of circumstances makes it appropriate, or for enabling it to be done by or with the approval of the Minister.
(7) Except as provided by the scheme, the operation of a scheme under this section shall not be affected by any disposition or devolution of the landlord's interest in the property within the area or parts of that property; but the scheme—

(a) shall include provision for identifying the person who is for the purposes of the scheme to be treated as the landlord for the time being; and

(b) may include provision for transferring, or allowing the landford for the time being to transfer, all or any of the powers and rights conferred by the scheme on the
1368
landlord for the time being to a local authority or other body, including a body constituted for the purpose.

In the following provisions of this section references to the landlord for the time being shall have effect, in relation to powers and rights transferred to a local authority or other body as contemplated by paragraph (b) above, as references to that authority or body.
(8) Without prejudice to any other provision of this section, a scheme under it may provide for all or any of the following matters:—

(a) for regulating the redevelopment, use or appearance of property of which tenants have acquired the landlord's interest under this Part of this Act; and

(b) for empowering the landlord for the time being to carry out work for the maintenance or repair of any such property or carry out work to remedy a failure in respect of any such property to comply with the scheme, or for making the operation of any provisions of the scheme conditional on his doing so or on the provision or maintenance by him of services, facilities or amenities of any description; and

(c) for imposing on persons from time to time occuping or interested in any such property obligations in respect of maintenance or repair of the property or of property used or enjoyed by them in common with others, or in respect of cost incurred by the landford for the time being on any matter referred to in this paragraph or in paragraph (b) above;

(d) for the inspection from time to time of any such property on behalf of the landlord for the time being, and for the recovery by him of sums due to him under the scheme in respect of any such property by means of a charge on the property;

and the landlord for the time being shall have, for the enforcement of any charge imposed under the scheme, the same powers and remedies under the Law of Property Act 1925 and otherwise as if he were a mortgagee by deed having powers of sale and leasing and of appointing a receiver.
(9) A scheme under this section may extend to property in which the landlord's interest is disposed of otherwise than under this Part of this Act (whether residential property or not), so as to make that property, or allow it to be made, subject to any such provision as is or might be made by the scheme for property in which tenants acquire the landlord's interest under this Part of this Act.
(10) A certificate given or scheme approved under this section shall be registered under the Land Charges Act 1925 as a local land charge; and where a scheme is so registered—

(a) the provisions of the scheme relating to property of any description shall, so far as they respectively affect the persons from time to time occupying or interested in that property, be enforceable by the landlord for the time being against them, as if each of them had covenanted with the landlord for the time being to be bound by the scheme; and

1369

(b) in relation to a house and premises in the area section 10 above shall have effect subject to the provisions of the scheme, and the price payable under section 9 shall be adjusted accordingly.

(11) Subject to subsections (12) and (13) below, a certificate shall not be given nor a scheme approved under this section for any area except on the application of the landlord.
(12) Where, on a joint application made by two or more persons as landlords of neighbouring areas, it appears to the Minister—

(a) that a certificate could in accordance with subsection (1) above be given as regards those areas, treated as a unit, if in the interests of those persons were held by a single person; and

(b) that the applicants are willing to be bound by any scheme to co-operate in the management of their property in those areas and in the administration of the scheme;

the Minister may give a certificate under this section for those areas as a whole; and where a certificate is given by virtue of this subsection, this section shall apply accordingly, but so that any scheme made by virtue of the certificate shall be made subject to conditions (enforceable in such manner as may be provided by the scheme) for securing that the landlords and their successors co-operate as aforesaid.
(13) Where it appears to the Minister—

(a) that a certificate could be given under this section for any area or areas on the application of the landlord or landlords; and

(b) that any body of persons is so constituted as to be capable of representing for purposes of this section the persons occupying or interested in property in the area or areas (other than the landlord or landlords), or such of them as are or may become entitled to acquire their landlord's interest under this Part of this Act, and is otherwise suitable;
then on an application made by that body either alone or jointly with the landlord or landlords a certificate may be granted accordingly; and where a certificate is so granted, whether to a representative body alone or to a representative body jointly with the landlord or landlords,—

(i) an application for a scheme in pursuance of the certificate may be made by the representative body alone or by the landlord or landlords alone or by both jointly and, by leave of the Minister, may be proceeded with by the representative body or by the landlord or landlords though not the applicant or applicants; and

(ii) without prejudice to subsection (7)(b) above, the scheme may, with the consent of the landlord or landlords or on such terms as to compensation or otherwise as appear to the Minister to be just, confer on the representative body any such rights or powers under the scheme as might be conferred on the landlord or landlords for the time being, or enable the representative body to participate in the administration of the scheme or in the management by the
1370
landlord or landlords of his or their property in the area or areas.

(14) Before finally approving any scheme, the Minister shall—

(a) give notice of his intention so to do to—

(i) the applicant or applicants;

(ii) all such persons as were heard by the person appointed by the Minister for the purpose under subsection (4) above; and

(iii) such other persons as the Minister may think would be affected by the scheme and shall serve upon all such persons a copy of the scheme which he proposes to approve; and

(b) apply to the High Court for an order approving the form and contents of the proposed scheme.

(15)(a) Upon hearing an application made under subsection (14)(b) above, the Court may hear the Minister and any person to whom notice has been given under subsection (14)(a) above, or, where there has been no hearing into the scheme under subsection (4) above, the Minister and such other person as the Court shall think fit.
(b) In considering whether or not to approve the form and content of the proposed scheme, the Court shall only have regard whether the proposed scheme is so expressed as to be capable in law of being satisfactorily carried out.
(c) Accordingly the Court may by order approve the proposed scheme with or without modification.
(d) The scheme which the Minister may finally approve shall be that which has been approved by order of the Court.
(16) Where a certificate under this section has been given for an area, or an application for one is pending, then subject to subsection (17) below if (before or after the making of the application or the giving of the certificate) a tenant of a house in the area gives notice of his desire to have the freehold under this Part of this Act,—

(a) no further proceedings need be taken in relation to the notice beyond those which appear to the landlord to be reasonable in the circumstances; but

(b) the tenant may at any time withdraw the notice by a further notice in writing given to the landlord, and section 9(4) above shall not apply to require him to make any payment to the landlord in respect of costs incurred by reason of the notice withdrawn.

(17) Subsection (16) above shall cease to have effect by virtue of an application for a certificate if the application is withdrawn or the certificate refused, and shall cease to have effect as regards the whole or part of an area to which a certificate relates—

(a) on the approval of a scheme for the area or that part of it; or

(b) on the expiration of one year from the giving of the certificate without an application having been made to the Minister for the approval of a scheme for the area or that

1371
part of it, or on the withdrawal of an application so made without a scheme being approved; or

(c) on a determination made under subsection (3) above with respect to the area or that part of it, or the dismissal of an application for the approval of a scheme for the area or that part of it."

The noble Viscount said: My Lords, this Amendment has a truly formidable aspect, but if your Lordships have read it you will realise that a great deal of it is borrowed from Clause 19 of the Bill as it stands: there are really only two matters in it which are different. I will say briefly what they are.
As it stands at the moment, this clause deals with the arrangements that are to be made for retention by the landlord of a certain degree of management of the estates which are adjudged by the Minister to be well managed. The powers in the Bill are, first of all, for the landlord to apply to the Minister for a certificate, and if he gets that he then goes to the High Court—I think it would be the Chancery Division—for a scheme which contains a lot of details about how the powers of management are to be carried out by him if any of the houses on these estates are enfranchised.
The change made by my Amendment is that both the certificate and the scheme shall be dealt with by the Minister, the only function of the court being to look at it, after it has been sorted out by the Minister, to see whether it makes sense in law. There will be some complicated provisions in some of these schemes, and it will be valuable to have the view of the court on such matters.
Before I attempt to justify this change I hope that the noble Lord, Lord Kennet, will be able to help me on a point which was raised at an earlier stage on Clause 19 and about which something was said during the last stage of the Bill, so that I may be certain I understand what the Government have in mind. Your Lordships will see that one of the things the Minister looks at under subsection (1), when he decides whether or not to give a certificate, and one of the things which may be dealt with in the scheme approved under the Bill by the High Court is that of regulating redevelopment, a point about which the noble Lord, Lord Silsoe, was concerned during the Committee stage.
I understand that the sort of matter which might go in a scheme under the Bill, or indeed under my Amendment, could be twofold: first of all, that even if the tenant enfranchises his house he shall not redevelop it individually except in accordance with the general looks, layout and architecture of the estate; and, further, that if there is subsequently an occasion when the whole estate is to be redeveloped by the landlord, the enfranchising tenant (by that time the owner) shall not himself redevelop except in accordance with that plan, supposing, as is bound to be the case, that that plan had received planning permission. If matters of that sort can be written into the scheme for regulating redevelopment, I feel that goes as far as one could properly go in this Bill, because if it is necessary to buy back some enfranchised houses hitherto owned by the estate and the scheme to redevelop is such that it has had planning permission, then there would be occasions when either the local authority or possibly the Land Commission would assist in buying back the land if an owner was being recalcitrant and might spoil the whole redevelopment scheme. They might not do this, but have powers to do so. If that is the situation, there would be no harm in leaving this vague phrase "regulating redevelopment" exactly as it is in the Bill; but I should be grateful if Lord Kennet could say a word on that.
As to the points raised in the Amendment, it would be almost impossible to devise in order to deal with the situation machinery more complex than that which appears in Clause 19. I am particularly concerned about the reality of what would happen if somebody tried to use this clause. I am not only concerned about costs and time spent by the landlord; I am equally concerned about the time, trouble and expense on the part of those who wish to have criticisms of the scheme put forward and adopted. In the first place, the Minister has to grant the certificate, and the Bill provides that, if necessary, he can hold a public inquiry. The inspector who holds such an inquiry and the Minister and Department concerned have some complicated matters to consider, as your Lordship will see from subsections (1) and (3) of the Bill.
The Minister, having acquired all the information, having heard all the evidence in the case of a dispute, then decides to grant a certificate, and the landlord or one of the groups who are now allowed under the Bill to do this can apply to the High Court for a scheme. This no doubt would be applied for in detail with a draft scheme which would be submitted to the High Court, and again there is provision for this to be opposed; they have to start all over again. It may have been threshed out at the public inquiry held before the certificate was given, but they would then have to start all over again. On that occasion it would not be at a public inquiry, but it would have to be done in accordance with the strict rules of evidence. There may have to be affidavits and the calling of witnesses, whose evidence will have to be heard in regard to all the matters which have to be dealt with under the Bill. When one looks at subsections (3) and (8) one sees what the High Court might have to have regard to.
As I understand the matter, all these matters will have to be proved formally between 10.30 a.m. and 4 o'clock in the afternoon, before the Chancery Division and with the usual number of advocates and solicitors involved. I say nothing against going to court—indeed, who am I to do such a thing?—but is this to be the sort of material to go up to the Chancery Division on a disputed application? The Judge would have to consider these matters. One must also remember that the judgment can be appealed against and if necessary taken to your Lordships' House, so that the whole matter has to be gone through, not once but three times.
Are these the sort of matters which we should impose on the court? I suggest that decisions of this kind go a long way beyond the type of case the High Court usually deals with, and indeed some touch upon matters of policy and should be dealt with by the Ministry. What I have sought to do is to provide that the Minister, who will be in possession of a great deal of this material as a result of having decided whether or not to give the certificate, should deal with the scheme as well, subject to final vetting by the High Court. Subsections (14) and (15) of my Amendment cover this point.
I considered the matter of the safeguards provided by the Bill in taking this away from the Ministry at the stage of the scheme. I have no doubt that what the Government have in mind is that there shall be an authority of impeccable character, with no possible political ties one way or the other, who shall decide between landlord and tenant or between groups of tenants. The inspectors who are sent by the Ministry of Housing to conduct cases and inquiries involving points of the greatest difficulty have aquitted themselves admirably, and the decisions which they recommend to the Minister, and his own fairness in the Department in seeing that the decisions are rightly implemented, have now acquired a status which would mean that they would be acceptable to carry out the task which, at the moment, under this Bill, is put upon the Chancery Division. I suggest to your Lordships that my proposal would be a better, quicker and cheaper way to deal with the whole matter.
I am sorry that the noble and learned Lord, the Lord Chancellor, is not here but I have no doubt that his Department has been consulted, I have set out the case as one in which the High Court would have a long and laborious job in the case of a dispute. Could the noble Lord tell the House (for I do not believe Parliament has had this explained) exactly how it is envisaged that the High Court should deal with these matters under the Bill? What provision would be made to try to cut down the time, the cost and general complexity of taking such a matter before the High Court? If the noble Lord could explain how this would be done under the Bill, I feel I should be able to make a fairer judgment between what is contained in the Bill and what is set out in my own Amendment.
Finally, I hope that when we have heard what the noble Lord has to say about this matter, it will not become apparent that the difficulties of contesting a scheme under the Bill would be so great that it would be an almost insupportable temptation to anybody who would like to dispute such a matter to throw up his hands in despair because he cannot afford to do so. That must be the last thing we should seek to do. If that is the result of the Bill as it stands, I feel that the machinery is wrong and that we

1375
ought to think about it again, as my Amendment gives opportunity to do. I hope the noble Lord, Lord Kennet, will deal with the matter I have outlined. I beg to move.
Amendment moved—
Leave out Clause 19 and insert the said new clause—(Viscount Colville of Culross).
LORD KENNET: My Lords, Ministers are always pleased to hear lawyers ask for the transfer of this or that matter from the jurisdiction of the courts to that of the Executive. It indicates trust. But in this case I must resist the temptation of accepting the proferred gift. Before coming to the answers which I shall be able to give to the noble Viscount about how it is going to work under the clause as it stands, which I hope will satisfy him, let me first of all answer his questions about regulating development under Clause 19. I listened very carefully to what he said, and my impression—although I must say that I cannot lay down what the courts will hold to be the right way to do it—is that everything which he said would happen would happen, with one exception. That is where he slipped in—I do not blame him for slipping it in, and it is a point of great interest—that the landlord might be enabled to buy back an enfranchised property, in order to ensure that the property was redeveloped in accordance with his plans. I do not think that is the case. The local authority or the Land Commission might buy it, and they might then choose to sell it to the landlord. But I do not think they would be under any obligation to do so; nor do I think the landlord would be entitled to ask them or require them to do so. But with that exception everything else that the noble Viscount said is, I think, the case.
To come to the meat of this extremely thoughtful, well thought out and, I believe, constructive Amendment, under the present clause the landlord's first step in obtaining approval for a scheme will be to issue an originating summons. The summons will come—I shall deal with the landlord's side of the matter, but your Lordships can easily read into it what the enfranchising tenants must do—before a Chancery Master who will give directions for adding any necessary parties, and for filing evidence on behalf of the applicant and the respondents. Evidence
1376
will be in the form of affidavits, exhibiting a copy of the scheme proposed by the applicant and any variations proposed by the respondents. When the evidence is complete, there will be a further hearing before the Master who will adjourn the summons to the judge for a decision. The hearing before the judge will be in open court. The judge may approve the scheme, or may refer it back to the Master for further evidence on any point on which he is not satisfied. In that event there will be a further hearing before the Master and a further hearing before the judge.
This is complicated, but I am very much afraid that the alternative proposed in the noble Viscount's Amendment is at least equally complicated and will probably be slower, because his assumption that the Minister is in a position to reach a decision on a proposed scheme any quicker than the High Court is invalid, for the following reasons. First, the proceedings at the ministerial inquiry will be much more protracted than at the High Court, in spite of the hours of 10 a.m. to 4.30 p.m., because the inspector has to hear separately everyone who wishes to be heard and has no power to take decisions or to exclude evidence even if he thinks it utterly irrelevant. So even if we allow that the Minister's inspector is working rather longer hours than the courts, that will be more than offset by his inability to exclude total irrelevancies.
Again, the inspector has to write a report which must include a summary of all the evidence given, which does not have to happen in the courts. In addition, the inspector's report and the accompanying documents then have to be read and considered by the Minister, who has no practical opportunity at that stage of eliciting further information which he may think desirable. There is therefore a great incentive for the inspector to make sure that it is all in, even if it is not strictly relevant and that holds it up up at that stage. Again, under the alternative clause put forward by the noble Viscount, the Minister will then have to give notice to all interested parties of the scheme which he proposes to approve, and apply to the court for approval of the scheme. The Minister's application to the court would have to follow the same procedure as I have already outlined for applications under the present

1377
clause, and might be expected to take the same time for decision, except that the time taken in preparing evidence would be reduced because it would already be in the report.
I do not know whether the noble Viscount has assumed that the waiting list for a Chancery action is longer than that for a ministerial inquiry. I am advised that this is not the case, and that applications set down in the non-witness list are not subject to any particular delay in obtaining a hearing. The Chief Master of the Chancery Division considers that, if the parties file evidence within the time generally allowed on applications, a hearing will take place before the judge within three months of the application. I wish I could say that the same was always true for Ministry inspectors.
In any case, the nature of the decision whether or not to approve a management scheme under Clause 19 is really more suitable for the courts than for a Minister. If there is any question of ministerial policy involved in deciding applications it arises at the first stage of the granting of a certificate, which, as I understand it, the noble Viscount would leave with the Minister. The question whether an estate looks to be of so much benefit to the community as a whole, or to the neighbourhood, as to warrant imposing special obligations on enfranchising leaseholders is well within the Minister's competence, and an inquiry would present no more difficulties than a normal planning inquiry. But once a certificate is granted there is no question of Government policy in settling the content of a scheme. It has simply nothing to do with the Minister.
It is true that some of the matters which are for decision in deciding whether or not a scheme should be approved are not tailor-made for a High Court Judge—and this I must admit—but they are a little bit more tailor-made for him than they are for a Minister. That is why the Government felt, in the first instance, and still feel—while freely admitting the difficulties of reaching the right solution to this problem; and while thanking and, if I may, complimenting the noble Viscount on his constructive work in trying to improve the Bill—that the latter part of the procedure, the actual "yea-ing" and "nay-ing" of the scheme,
1378
to agree or to disagree, is more appropriate for the courts than for ministerial discretion. That being so, I feel that I cannot commend this Amendment to the House.
4.29 p.m.
LORD SILSOE: My Lords, I am grateful to the noble Lord for what he has said, but I am very sorry that this last major Amendment which we all want is not approved. However, it is good news indeed to be told that the words "regulating redevelopment" will cover all the normal matters dealt with in redevelopment schemes. That is an important feature, and I am very glad to hear it. The noble Viscount's Amendment contains every single word and comma of the Government's policy, absolutely unaltered in any shape or form. The only thing that has been altered is the question of who is to decide.
A short time ago I was a lay client in the Chancery Division, and therefore, I speak with some knowledge of the matter of landlord and tenant. Time went on, and nothing happened. After six months we were informed that the case might come on about a year and a half later. So tired did we all become that we took the matter to the county court, and away from the Chancery Division. Unfortunately, that cannot be done here, and it is not correct for anybody to say that at the present moment, on a matter between landlord and tenant, the Chancery Division is quick.
Also, as I said before, with great respect, what do the Chancery Judges know about this subject? They know a great deal about trust law and all that sort of thing, but they know nothing about redevelopment, they know nothing about managing estates. They have never done it; it is not their job. The Minister, as the noble Viscount has pointed out, is going through this subject every day. Like the noble Viscount, we have complete confidence—and I speak here as a fairly big estate owner—not only in the inspectors but in the Ministers who decide these matters. We have complete confidence; they are always doing it. Politics never come into it; and we are perfectly happy with the position.
My Lords, apparently the courts are not capable of deciding what is "substantial". We have been told that we cannot have an Amendment on that point

1379
because they are not good enough at understanding it. Heaven knows what they are going to think about this! Surely the whole idea of this Amendment is that the Minister should deal with this matter all the way through, and should do it as he does the rest of it. By the way, the noble Viscount forgot to mention that the Minister has to deal with the planning permission also, which has common features with this. All that has to go to the Minister. Why, therefore, can this not be done? By this very ingenious suggestion that the noble Viscount has submitted, the courts are given their proper function: to decide in the Chancery courts whether a document which has been drafted is capable of operating in law. That is a thing the courts understand and do, and, if I may respectfully say so, do well.
I beg the Government to take one last look at this point. I am confident that if the clause goes through as it is, practically every well-managed estate will have to go through this process. There will be laughter, irritation—all the odd words you can think of—at the way the Act is working; and the present Government, if they are in power, will amend it. They cannot help doing so. I speak as one who deals with this subject pretty well every day of his life. Why cannot what is suggested in this Amendment be done? I think the real reason is that the noble Viscount's Amendment puts some costs on the Minister. I do not think that is at all a bad idea, the Minister having introduced this Bill. But that seems to me the only reason which can be thought of—that he would have to pay a few costs occasionally.
I proposed my original Amendment, and then I withdrew it because I did not get the tremendous praise the noble Viscount has got from the Government. I was told that mine was muddled thinking, and almost unreadable. I do not mind that. I entirely agree that the noble Viscount's Amendment is better than mine—I cannot say fairer than that—and I hope very much that the House will follow it up and will not lead the Government into a measure which is bound to become a failure and a laughing stock.
LORD MESTON: My Lords, I think the noble Lord speaking for the Govern-
1380
ment might substitute the words "three years" for "three months".
VISCOUNT COLVILLE OF CULROSS: My Lords, I am very grateful to the noble Lord, Lord Silsoe, for his support; and, of course, I very much appreciate what the noble Lord, Lord Kennet, has done by way of explaining the matter. First of all, although nobody will read my speech on this subject, I hope he has made a mistake as to what he thought I said about redevelopment. He will be able to see it in the OFFICIAL REPORT. I had never envisaged that the scheme itself should enable the landlord to buy back any property that has been enfranchised. Nor did I envisage that the landlord would have any rights to go to the local authority or to the Land Commission to ask them to buy it back for him. What I said was that there were powers in the local authority and the Land Commission, who, if they thought it was a good redevelopment, could, if they wanted to, buy the land back so that it could be redeveloped by the common landlord. I do not think there is anything exceptionable in that. It has nothing to do with the scheme under the Bill; and I am probably at fault for not having explained it very well. It gives the landlord no rights. There is an external opportunity—nothing to do with this Bill—if those responsible bodies think fit, to let them get on with the job. I do not think the noble Lord and I have anything between us on this point.
So far as concerns whether it is the courts or the Minister, I can very well see that the argument that the noble Lord has put forward would have some sense if this were going to be a continuing jurisdiction. If there were going to become a corpus of case law and the Chancery Judges were, over a long period of time, going to be used to doing this sort of thing, then the mere fact that perhaps they were not initially very familiar with the subject would not be of great moment. I wish to say nothing whatever against them, nor would I suggest in any way that if they have to do this job they will not do it very well.
If there were going to be this long period of time over which these things would come before them, that would be one thing. But it will not happen like that, as I understand it. If the certificate

1381
is to be given it is to be given within one year (or is it two years?) of the coming into force of this Bill. Then, after that, one applies for the scheme. There will be a wave of these matters, and then it will be over. The Chancery Division will never see these things again, and they will not, therefore, have this continuing experience. I do not believe that every Chancery Division Judge will probably do very many of them on his own; and he may come to a conclusion on the wording to be put into the scheme on facts which have come before one of his brothers in a rather similar way but where the other Judge has come to a different conclusion, probably on a matter which cannot be dealt with on appeal.
I know that in the Ministry the time factor is not as favourable as it might be. I equally know that the Ministry are doing their best to hurry this process up—and I am sure they are succeeding. In the Ministry decision department, or at the ministerial level if these things are looked at by the Minister, there would be the overall conspectus. All the schemes would have been to the same people; they would have seen the whole lot. They could see whether these things were being done in line with each other, or whether the schemes which were being put up had got grave dissimilarities from something put up by another landlord to deal with very similar circumstances.
I fear that I do not believe that from the administrative time and cost point of view there is going to be as much in favour of the courts doing this as the noble Lord made out, particularly in view of the fact that under my Amendment the job of the Chancery Division is a very limited one indeed. I do not believe there will be the necessity to have anything like the process before them that the noble Lord described for the scheme itself, and if the noble Lord looks at the scope of their job under subsections (14) and (15) I think he will come to the same conclusion. I am sorry that the noble Lord cannot accept this Amendment, because I believe that for this short-term but very complicated job the Ministry would have been the right people to do it.
On Question, Amendment negatived.
4.37 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved, after Clause 19, to insert the following new clause:
Covenants transferring landlord's liability for common facilities
" .—(1) Without prejudice to the other provisions of this Part of this Act, where a tenant occupies a house in circumstances which fulfil the following conditions—

(a) that the tenancy is or was one of a number of tenancies of houses in an area; and

(b) that those tenancies are or were, before the exercise by the holder of any of those tenancies of his rights under section 8 above, held directly or indirectly from one landlord; and

(c) that the landlord has been responsible for maintaining, or, whether by contract with the tenant or by virtue of any statutory power in that behalf, has undertaken or is required to maintain at his own expense any road, footpath, watercourse, sewer, drain, garden, parkland or other facility (in this section referred to as "the landlord's provision") for the use or benefit of the occupiers of those houses or of those houses together with other houses or premises (in this section referred to as "the other premises"):—

then if the tenant gives notice to the landlord under the said section 8, a conveyance executed to give effect to that section may contain a covenant under this section.
(2) A covenant under this section shall have effect so that the tenant (hereafter in this section referred to as "the covenantor") upon his becoming the freeholder of that house, undertakes so much of the liability arising out of the landlord's provision as relates to that house.
(3) Any liability upon the covenantor arising from a covenant under this section shall not exceed a liability, calculated according to the next following subsection, to maintain the landlord's provision to the same degree or standard as the landlord had theretofore habitually achieved or, where the maintenance had been undertaken or required by virtue of a contract with the tenant or any statutory power, the landlord was bound to achieve.
(4) The extent of the liability so undertaken shall be such as reflects the proportion of the use or benefit which is reasonably derived or to be derived by the occupiers of that house to the use or benefit which is reasonably derived or to be derived by the occupiers of the other premises from the landlord's provision.
(5) Where a covenant under this section fulfils the conditions set out in the next following subsection, the covenant shall enure for the benefit of each and every of the other premises and shall be enforceable—

(a) by the owners and tenants for the time being of the other premises, or any of them; and

1383

(b) by the landlord or by any person deriving title by, through or under the landlord so long as the landlord or that person retains an interest in land in any of the other premises—

against the covenantor and all persons deriving title by, through or under the covenantor.
(6) The conditions mentioned in the last foregoing subsection are—

(a) that the covenant is expressed to be for the benefit of each and every of the other premises, which shall be specified; and

(b) that the covenant is expressed to be in common form with other covenants entered into or to be entered into by the landlord, by his predecessor or predecessors in title, or by any person deriving title by through or under him, with tenants of the other premises for the purpose of any conveyance executed or to be executed to give effect to section 8 of this Act.

(7) Where any liability is undertaken by the covenantor by virtue of a covenant under this section which is enforceable under subsections (5) and (6) above then if—

(a) the covenantor or any person deriving title by, through or under him fails to perform the covenant; or

(b) the landlord or any person deriving title by, through or under him, upon a requirement in writing by the covenantor or any person deriving title by, through or under him to carry out works to maintain the landlords provision, insofar as the liability to maintain the same has not been undertaken by any other person by virtue of a covenant under this section, to that standard or degree which is referred to in subsection (3) above, fails to comply with that requirement—

the remedies set out in subsection (8) below shall be available.
(8)

(a) In the case of paragraph (a) of subsection (7) above—

(i) the owners or tenants of the other premises, if they or their predecessors in title have entered into similar covenants under this section; or

(ii) the landlord or any person deriving title by, through or under him so long as the landlord or that person retained an interest in land in the other premises or any of them; or

(b) in the case of paragraph (b) of subsection (7) above, the covenantor or any person deriving title by, through or under him, who has made the requirement—

may, after giving not less than twenty-one days notice in writing of the intention so to do, enter upon the land and perform the covenant, or as the case may be fulfil the requirement, in default, and the proper proportion of the expenses reasonably so incurred may be recovered by them from the person in default.
(9) A covenant under this section may be registered under section 10 of the Land Charges Act 1925 as if it were a charge affecting land falling within paragraph (iii) of Class D, and the provisions of section 13 of that Act (which
1384
relates to the effect of non-registration) shall apply as if it were such a land charge:
Provided that where the land affected by the burden of the covenant is registered land within the meaning of the Land Registration Act 1925, notice of the covenant may be registered under section 59(2) of that Act as if it were a land charge (other than a local land charge) within the meaning of that Act and the provisions of that Act shall apply accordingly as if it were such a land charge.
(10) Where any conveyance of a house, executed to give effect to section 8 above, contains a covenant under this section, the price payable under section 9 above shall be adjusted accordingly."
The noble Viscount said: My Lords, this is another hardy annual under this Bill. It may now be such a long time ago that your Lordships have forgotten what the Government said about putting into the Bill a provision to deal with one of the landlord's common services. The problem is this, if I may put it very briefly. Suppose that there are eight houses which are in enjoyment of a road which leads to all of them, that the road is a private road which is kept up by the landlord of all those eight houses, that all eight of them are capable of being enfranchised under this Bill and that one (or more) of the tenants takes the opportunity given to him and enfranchises. What then is to become of the upkeep of the road? At the present moment, the enfranchising tenant can agree with the landlord that he will undertake part of the responsibility; but that undertaking, that covenant, does not run with the land under the law as it stands at the moment, and once either of the parties to that covenant alters then it can no longer be enforced. What I think everybody agrees is required is an arrangement by which the tenant can take over his part of the responsibility, and by which his undertaking to do so will continue to run with his land.
This is what the Government said. It was said by the noble Lord, Lord Hughes, during the Committee stage of the Bill, at column 1229:
"The Government would have liked to have been able to do something about this…The desirable thing is that the person who is enfranchised, and who is the one who is going to benefit, should be the one who should carry the responsibility…"—[OFFICIAL REPORT, 12.7.67.]
The Government would like to be able to do it. I have put forward—on one occasion my noble friend Lord Aberdare

1385
did it for me, and now I am doing it myself—a method of ensuring that exactly that can be achieved. I do not think I need go through the proposed new clause line by line; but there have been one or two alterations since it was last presented to your Lordships. First of all, I have tried to meet the criticisms made of the drafting last time: that it only covered cases where the landlord was contractually or by some Statute required to keep up for the benefit of the tenants the road I mentioned in my example. I have now extended this so that where the landlord does it voluntarily and without obligation, equally a covenant can be entered into. Of course, there is no force about this; it is a matter of voluntary arrangement between the landlord and the enfranchising tenant. The other thing I have done is, I hope, to improve what was said to have been faulty before; that is, the power of both sides to keep the covenantor and the covenantee, the landlord and the tenant, up to their part of the bargain. This is dealt with by two new subsections.
It was said on the Report stage that it is really quite unnecessary to do anything about this because before long we shall have legislation implementing the Wilberforce Committee Report which recommended a positive covenant of a certain sort (including one of this sort) which should run with the land, as a negative covenant does now. The difficulty about that is that the Report also recommends that any Bill to implement it shall not apply to covenants which have been entered into before that Bill becomes law. I can envisage a number of situations arising which raise the problem covered by this Amendment before the Wilberforce Bill becomes law. Then, of course, the provisions will not apply. On the other hand, since I believe that what the Amendment proposes is very much in line with what the Wilberforce Committee Report recommended, there should not be any undue difficulty when the Wilberforce Bill is introduced in scrapping the statutory provision in this proposed new clause and incorporating the provisions which would be necessary to bring these covenants and their enforcibility in line with what is generally being provided under the law as a whole.
My Lords, the same thing applies to what is a possible criticism of my drafting. Where I have dealt with registration of these covenants in the case of unregistered land, I have used the land charges machinery; but the Wilberforce Committee cast some doubt upon using this machinery for this purpose and suggested that it should be done by notice, as in the old pre-1925 way. The criticism again would really not be relevant to my drafting, because the criticism relates to the difficulty of finding an entry in the Land Charges Register; and, of course, for the period of time that these covenants will run until the Wilberforce Bill came in, I do not believe that difficulty would arise. I do not say that this clause is necessarily word-perfect, but I have offered the Government at least three opportunities to criticise all the drafting except that of one or two subsections which I have put in at the end. I think I have met all the criticisms of which I have been told, and I believe that I have provided a means by which the Government can do what they agree is desirable. Unless the noble Lord now produces some new objections which have never been heard of before—and I think it would be unfair if he were to do so—I would urge your Lordship to put this new clause into the Bill. I beg to move.
Amendment moved—
After Clause 19 insert the said new clause.—(Viscount Colville of Culross.)
LORD KENNET: My Lords, I think the noble Viscount will have heard the objections before, privately. Let me start by conceding that the possible piecemeal enfranchisement of houses in some small estates does create problems, may create problems, will create problems, if there is some common access or garden kept up by the landlord; and also that the noble Viscount has been ingenious in his solution and has been eager to receive and to meet criticism. He has himself outlined the respects in which he has amended an earlier version of this provision, and this time I have no fault to find with his drafting. Having said that, it may seem churlish to insist that the whole conception remains fraught with difficulties. While in themselves the

1387
difficulties would not be grave, they are, by comparison with other advantages (which will soon, I hope, be before the House and available to the people; and the noble Viscount knows what I mean) difficulties that are not worth running into in the meantime.
Under the noble Viscount's new clause, the liability to maintain is transferred; yet the actual maintenance work itself will usually have to be handed over by the single enfranchiser to some single body, and the new freeholder will have to commute his single liability to maintain into a sum of money for this purpose. The arrangement would have to work by agreement—somebody would hire a gardener or a contractor to repair the access, and the rest would pay their share to him or (Heaven help us!) to a company which might be set up. This would have to be so unless that particular collection of new freeholders happen to have precisely the right skills: for example, that one would handle the pneumatic drill, another the tar boiler. But this is unlikely.
The point is that the business, as the noble Viscount has proposed it, is entirely voluntary. The enfranchising leaseholder has to assume liability. Why should he assume any liability unless he is sure that all the others in the same boat will follow suit, and within a reasonable time? If the others do not follow suit, they may still continue to enjoy the services free at the expense partly of the landlord, and partly of those enfranchised leaseholders who have entered into the covenants proposed by the noble Viscount. Likewise, the landlord might hesitate to bind himself to maintain in perpetuity, without payment, a large proportion of his services in return only for the undertaking of perhaps a few enfranchising tenants to maintain the remainder. There is no means of modifying or discharging these convenants. It is clear that the scheme will not be attractive to anybody unless all, or nearly all, the tenants and the landlord agree in advance to enter into these covenants. But this they can do anyhow, without the proposed new clause.
It would be better, I urge the House, to leave it to the parties to enter into some arrangements more flexible than those proposed here, if they wish, until
1388
legislation can be brought forward to give effect to the Wilberforce Report. The noble Viscount said that when that happened the Wilberforce legislation could scrap his provisions which are now put before the House. I do not think it is worth it. I must not go further; but I do not think it is worth it. The objections I have been outlining to the noble Viscount's proposals are, I freely admit, not extremely weighty; but his proposals are extremely complicated, and the gap in cover for this matter will be extremely short. That being so, with great regret I cannot commend this scheme to the House.
VISCOUNT COLVILLE OF CULROSS: My Lords, at least it is a comfort to know that I have got it right this time—whether it is worth it or not! The noble Lord has, of course, put his finger on the important things about this. First, it is voluntary because I believe that the incentive would be for both landlord and enfranchising tenants to enter into something like this. So far as the tenant is concerned, it would obviate the risk of the common facility being left and neglected. So far as the landlord is concerned, it would be of help to him as long as he retains any interest in the rest of the properties. However, be that as it may. I should have thought that what the noble Lord suggested about the method of carrying out the actual incident—in other words, to commute the obligation into a sum of money and let it be done by a single contractor—was precisely the sort of sensible arrangement that anybody ought to enter into in these sort of cases.
About its being a matter where a flexible arrangement can be made between landlord and tenants until such time as Wilberforce comes along, frankly, I do not agree with the noble Lord. This is going to have to be done individually on each conveyance, and these conveyances will not necessarily all come up at the same time. Unless there is a provision in the Bill, nothing can be arranged which will run with the land and last any longer than the parties to that piece of paper. It was just for this bridging reason, so that until such time as the common legislation comes in we have got a situation where there will be lasting obligations, that I should have thought it very worth while entering into this provision. It need not be used, but there

1389
may be occasions where nothing else will do. Here it is. I offer it to your Lordships, and I still think it worth doing.
On Question Amendment negatived.
Clause 20 [Jurisdiction and special powers of county court]:
LORD KENNET: My Lords, this and the next Amendment are drafting Amendments. I beg to move.
Amendment moved—
Page 38, line 28, after ("10") insert ("or 29(1)").—(Lord Kennet.)
Clause 21 [Jurisdiction of Lands Tribunal]:
LORD KENNET LORD KENNET: I beg to move Amendment No. 11.
Amendment moved—
Page 40, line 16, leave out ("above") and insert ("or 29(1) of this Act").—(Lord Kennet.)
Clause 22 [Validity of tenant's notices, effect on Landlord and Tenant Act 1954 and on notices to quit etc., and procedure generally]:
LORD KENNET: My Lords, this and the next Amendment are also drafting Amendments. They meet points arising out of the consideration now being given to the content of the regulations to be made by the Lord Chancellor under Clause 22(2). I beg to move.
Amendment moved—
Page 41, line 33, after ("premises") insert ("and landlord's costs").—(Lord Kennet.)
LORD KENNET LORD KENNET: My Lords, I beg to move Amendment No. 13.
Amendment moved—
Page 41, line 34, after ("agent") insert ("or as stakeholder").—(Lord Kennet.)
Schedule 3 [Validity of tenants' notices, effect on Landlord and Tenant Act 1954 etc. and procedure generally]:
LORD KENNET: My Lords, this is an Amendment to the Schedule which ties up the six Amendments we passed
1390
earlier on the question of one-third and two-thirds. I beg to move.
Amendment moved—
Page 83, line 26, after ("that") insert ("(apart from the operation, if any, of the proviso to section 4(1) of this Act)").—(Lord Kennet.)
4.53 p.m.
LORD KENNET: My Lords, I beg to move that the Bill do now pass. I think the House will agree that we do not need to enter once again into the merits of arguments which have shaken us—or at any rate, have shaken those among us who know and care for these matters—over recent months. I should like, if I may, as I usually do on these occasions, to say a personal word of thanks and appreciation to my noble adversary, Lord Brooke of Cumnor. We have some good clean fights, and he makes some very constructive suggestions which I am usually, I hope he will agree, instantly willing and able to accept; sometimes willing and able to accept only after a certain amount of consideration; sometimes willing and able to accept in part and never of course willing to reject—those are the other suggestions he made. I will not go over them.
I think that noble Lords on this side of the House, at any rate, will be bound to agree that not all the changes we have made in this Bill are improvements. Some of them go rather close to the heart of the Government's intention and of the White Paper which was endorsed by the electorate. Another place will know what to do about that. But a gratifying number of them do improve the Bill. I believe that our long labours have been, on balance, constructive, and I should like to thank all those noble Lords who have taken part in that constructive side of our work. They have not been numerous, but their knowledge has been great and it has been, I know, a considerable labour to all of them, as it has been to us on the Government Front Bench.
Moved, That the Bill do now pass.—(Lord Kennet.)
4.55 p.m.
LORD BROOKE OF CUMNOR: My Lords, I, for my part, should like to pay tribute to the unfailing courtesy of the noble Lord, Lord Kennet, throughout the passage of this Bill. He has had

1391
to carry a heavy burden, because these are detailed and difficult matters, and he has addressed himself to them with his usual devotion. The noble Lord made some remarks which I did not quite follow about the categories of suggestions which I had put forward. I certainly remember that he rejected a number of them though he was unable to refute them.
I venture to prophesy that this will go down in history as one of the worst Bills ever presented to Parliament. It was described in the columns of The Times as "a curiously bad Bill." It must be the first Bill in history on this sort of subject which has proved to be utterly friendless among the independent professional institutions which in their work have to concentrate on these matters. In your Lordships' House hardly a good word has been said for it, except by the Front Bench Members opposite. The debates have consisted principally of criticisms of it from all quarters, including notably the Cross-Benches. I cannot remember a single noble Lord who spoke from the Cross-Benches who was not critical of the Bill.
My Lords, this final stage cannot be more than a formality, because I certainly cannot advise my noble friends to throw out a Bill which was in the Election programme upon which the Government won the last Election—even though the people who voted the Government into power then are now obviously regretting that they did so. I must join issue with the noble Lord, Lord Kennet, when he says that some of the Amendments which we pressed go near to the heart of the Bill. That is not so. We have carefully and deliberately refrained from pressing any Amendment that would strike at the principle of the Bill, for the same reason that I have just given. Nevertheless, valuable Amendments have been made to improve the detail of the Bill.
The noble and learned Lord, Lord Shawcross, speaking from the Cross-Benches, found widespread support for his Amendment that charities ought not to be made to suffer under the Bill. Another noble Lord who is not a member of the Party to which I belong, the noble Lord, Lord Lindgren, found noble Lords
1392
in all Parties approving his view that as regards community-owned towns like Letchworth Parliament ought not to legislate to enable individual householders to make untaxed capital profits at the expense of the community.
Your Lordships accepted the Amendment proposed by the noble Lord, Lord Butler of Saffron Walden, who also spoke from the Cross-Benches, that if a lease with more than 25 years unexpired was compulsorily enfranchised under the Bill it would be obviously unfair if the landlord, deprived of the house, received for the next 25 years or more only the original ground rent that had been fixed in very different circumstances, when there was no question of compulsory enfranchisement. Still on points of detail your Lordships approved two minor Amendments of mine: one correcting the definition of a "long lease", and the other providing that in the case of a lease compulsorily extended the ground rent should be brought up to date at more frequent intervals.
Together with what the Government have done to-day on the definition of a ground lease, arising out of an Amendment pressed in Committee by my noble friend Lord Molson, these amount to substantial improvements in the Bill on matters of detail, though leaving untouched its iniquitous central principle: that, in order to deal with unfairness felt by small leaseholders in certain parts of the country, it is just that all leaseholders occupying houses, or parts of houses, below certain rateable values should be given an opportunity of netting substantial capital profits, untaxed and at other people's expense.
This is what the Government say is Socialism, and ordinary people say is legalised stealing. Indeed, if the Government's principle is sound, there clearly ought to be no limits of rateable value in the Bill. But the Government suddenly discovered that if they allowed the Bill to become law with no limitation of rateable value in it the untaxed capital gains which their idea of leasehold reform would confer on some people would be quite enormous. So they restored the rateable value limits, believing apparently that there was no objection to Socialist legislation giving untaxed capital gains of £5,000 or £10,000 to undeserving people, but that pre-

1393
senting more than £10,000 to individuals for no reason except that they happened to have bought leasehold property might cause some of the faithful to wonder what an odd sort of Socialism this was.
What a denial of justice this Bill is! I do not blame the noble Lord, Lord Kennet, who has done his very best in difficult circumstances. A Bill like this is a Cabinet responsibility, and it is the members of the Cabinet, in this House and in another place, who will carry the guilt of a Bill that breaks up well-managed estates and handicaps their future sound redevelopment, a Bill that confers on thousands of leaseholders wholly undeserved capital gains free of tax, and a Bill that steals from other people to achieve these questionable and strange results masquerading as reforms.
5.3 p.m.
LORD KENNET: My Lords, the noble Lord, Lord Brooke of Cumnor, has called this one of the worst of Bills, and all the rest of it, and we have come back to the red herring of substantial capital profits up to £10,000 going to thousands of people. I gave some very concrete examples at an earlier stage of what tax-free capital profits could be expected under this Bill. I will not repeat them. I do not think that the House deserves the tedium of the repetition of the boring truth. The truth is far from the glowing simplicities just advanced by the noble Lord. I know that in time the truth will gain wider currency in the country than these glowing simplicities. That is what will happen, we shall see.
The noble Lord said that none of the Amendments carried in this House went near the heart of the Bill. I assure him that some of them did. I can understand why he said that they did not, because he does not know where the heart of the Bill lies. This is a major reform of property law. It is hard for the Party opposite to know where the heart of property lies when it does not lie where they wish it to be. They have been shooting nowhere near where it is, and that is because they have drifted away from the fact that this Bill contains concrete remedies for concrete social evils.
For the last time, though by no means for the first, let me remind your Lord-
1394
ships that there are thousands of leaseholders in Wales—and not only in Wales—who are already disappointed that we did not get this Bill through this summer (some of them have, indeed, been thrown out) and who are waiting for the security of tenure which will be given them under this Bill. I do not claim that the Bill is perfect, but I do claim that to say that it builds in any principle of injustice is a wild distortion of its true nature, a distortion which could be advanced only by those who have failed to understand what that true nature is.
On Question, Bill passed, and returned to the Commons.

MEDICAL TERMINATION OF PREGNANCY BILL [now ABORTION (No. 2) BILL]
5.6 p.m.
Report of Amendments received (according to Order).
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 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 are of the opinion, formed in good faith—

(a) 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 (and in determining whether or not there is such risk of injury to health account may be taken of the pregnant woman's environment both at the time when the child would be born and thereafter so far as 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.

(2) 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 for the time being approved for the purposes of this section by the said Minister or the Secretary of State.
BARONESS STOCKS BARONESS STOCKS moved, in subsection (1), to leave out "one of whom is

1395
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." The noble Baroness said: My Lords, since July 26 we have had ample opportunity to consider the possible results of the limitation implied in the words which I propose to leave out. I think that when the consequences of their presence is seriously considered many of the noble Lords who voted for the insertion of this limitation will be persuaded to think again.
I am certain that the object of having the words which I propose should be left out is entirely reputable. They are inspired by fear of collusion. That fear was very well expressed in an editorial in this morning's Times, which says that if we rely only on the consent of two medical practitioners
"…there will be a real risk of a couple of doctors running a profitable abortion racket within the letter of the law."
"Collusion" is a very ugly word. I suppose it can be described as collaboration with an unworthy ulterior motive. Those noble Lords who read some months ago an article in the Observer describing a really large-scale and highly profitable abortion racket will be aware that there was ample collusion involved not only among general practitioners but among consultant psychiatrists. That sort of collusion can happen. I have memories of my own, having been brought up in a medical household among general practitioners in touch with consultants, of suspicions being attached to certain medical general practitioners who were in the habit of entering into relationships with consultants which might, if they were put into words (which of course they were not), be described in this way: "I will call you in as often as possible for a second opinion on my well-to-do patients, and you will let it be known in medical circles that I am a good general practitioner."
That sort of thing will happen and I cannot see that the words requiring the consent of one consultant operating under the National Health Service will necessarily eliminate that sort of collusion. We must trust two doctors, acting (in the words of the Bill) "in good faith",—and most doctors act in good faith—to recommend or give their consent to abor-
1396
tions under the conditions specified in the Bill: that these abortions must be notified and performed in a proper place under professional, hygienic and expert conditions. That is the security which the Bill gives.
Apart from the fact that I think that these words are unnecessary, what about the results of allowing Clause 1 to pass into law as it has been amended? In the first place, the requirement that one of the opinions must be that of a consultant operating under the National Health Service does not allow for the fact that such consultants are few and far between. There was a letter published in The Times this morning, signed by three eminent consultants, in which they stressed the number of such National Health Service consultants who would be available for giving this consent. The figures they quote are that there would be 740 suitable consultants available for the whole country; and it is pointed out that they are unevenly distributed and, for religious or other reasons, many will be unable to participate. Therefore, it will be most difficult for a woman, perhaps in a rural district, to find, or for her family doctor to find, the necessary available consultant operating under the National Health Service. The result will be a certain tendency to push distressed, disconsolate women in need back into the clutches of the old back-street abortionist. It is the object of this Bill to avoid that happening.
The other consideration is this. If your Lordships notice the terms of the clause, you will see that, alternatively, there appears to be a way out, in that the second consent may also be given by a doctor
"approved by the Ministry of Health or the Secretary of State for the purpose".
In view of the fact that we now know that the Ministry of Health are not willing to prepare such a list, which would involve discrimination as between doctors, that particular phrase means absolutely nothing. Let us assume, therefore, that the words which I propose to omit are not going to effectively safeguard the position, and consider the possible results of allowing this clause to pass unamended. I think they are results which were perhaps not in the minds of many noble Lords who voted for that particular hoped-for safeguard.
In the first place, apart from the fact that consultants are few and far between for consent, it is also a fact that it will involve delay in the finding of a second consenting party. Delay is the last thing in which one wants to involve a would-be mother, because the sooner the abortion is done the better: what has to be done has to be done quickly. So, if the clause passes unamended, we shall be playing into the hands of the back-street abortionist, and throwing back a number of unhappy mothers to that particular form of abortion—something which we wish to avoid.
Secondly, there is the effect on private practice. It is interesting to note that The Times leader this morning, which is on the whole hostile to the whole principle of the Bill, recognises this risk. It reads as follows:
"This second Amendment"—
that is, the Amendment which was inserted on July 26—
"…draws an undesirable distinction between National Health Service doctors and those who practise entirely privately. Such a distinction is indeed undesirable in principle."
I personally regret for other reasons the existing large area of private practice, both among general practitioners and among consultants. I think it involves a certain distinction between those who can pay for prompt and leisurely medical attention and those who cannot pay. But it is not the business of this Bill to restrict the area of private practice, and I am quite certain that many noble Lords, and especially those sitting on the opposite side of the House, would not wish to do so.
However, if this clause is passed unamended it will have that effect, as is clearly pointed out in the letter to The Times this morning, which mentions this possible consequence. The writers of that letter say that the fact that a consultant who certifies the need
"must be a consultant employed under the National Health Service will, if enacted, restrict the freedom of patients and of their general practitioners to consult the specialist of their choice and it will, for the first time, establish a legal difference in status between doctors employed by the National Health Service and those who are not."
That, I would beg your Lordships to agree, is not the object of the Bill. I fear that if Clause 1 is passed unamended it will wreck the Bill. I do not think it
1398
will be accepted in another place, and those of us who are most anxious to rationalise and legalise the present position and help a number of unhappy women will have to start all over again with a new Bill in both Houses. We shall continue to talk about abortion for the next year, and many of us are thoroughly tired of the subject. We are likely to cause the death of this Bill through wrecking Amendments. It is not a nice way to kill a Bill; it suggests the technique of the slow poisoner rather than the swift blow of a public executioner. I would beg your Lordships to carry the Amendment which stands in my name. I beg to move.
Amendment moved—
Page 1, line 8, leave out from second ("practitioner") to ("are") in line 11.—(Baroness Stocks.)
5.16 p.m.
VISCOUNT DILHORNE: My Lords, the noble Baroness who has just sat down spoke with great sincerity, but there was little in what she said which had not been said when we discussed this matter before. We finished the Committee stage on July 26, and no one can dispute that there has been ample time to table Amendments for the Report stage. Yet it was not until last Saturday, after the Marshalled List of Amendments had gone out, that this Amendment appeared. I expect that a great many of your Lordships did not know that this matter was going to be debated again until to-day. I do not suggest that there was any deliberate design to spring this Amendment on the House so late as to take its opponents by surprise; I am sure that was not the reason. But I cannot see that there was any adequate reason for delaying tabling the Amendment. It could have been thought that the noble Lord, Lord Silkin, was going to raise this issue again. If that was thought, it would have been easy to find out from the noble Lord whether or not he was going to do so.
We debated this matter for more than an hour on the Committee stage, and at the end of the debate this House expressed its opinion in no uncertain terms. The words which it is now proposed should be deleted from the Bill were carried into it by 116 votes to 67. The noble Baroness, Lady Stocks, the noble

1399
Lord, Lord Platt, and the noble Lord, Lord Amulree, all voted against that Amendment. My noble friend Lord Selkirk did not vote then, but no doubt we shall provide him with an opportunity of doing so to-day.
I have said before and, in view of the reference by the noble Baroness to "wrecking Amendments" and the action of the poisoner, I should like to say again, that I am one of those who want to see legislation, and good legislation, on this subject. There are a great many matters still to be discussed. I make no complaint that Lord Silkin should have thought it reasonable to ask this House to consider on Report an Amendment that was carried by only that one vote. I say that I hope the decision on that Amendment will be the same. But now, at this late hour, when time is very short, we are again having a debate on an issue decided by a substantial majority in Committee, and an issue which the sponsor of this Bill, Lord Silkin, did not himself decide to raise. It is bound to take more time. There are only three more days for this Bill to get through all of its stages in this House and another place. Although the noble Baroness may describe the Amendment which was carried in the Committee stage as a "wrecking Amendment", I think it perhaps more appropriate to describe this present Amendment as a one that is contributing largely to wrecking the Bill's chances. I should like, if I may, although I know that I have spoken a great deal on this Bill, to remind the House of one or two matters, because this Amendment made in the Committee was moved by me.
There are I think two main arguments advanced in favour of the Bill. One which the noble Lady did not advance today is the desirability that the law should be embodied in a Statute and that the legality of abortions should depend not on directions of judges summing up to juries, but on the terms of the Statute. I think that is a good reason. The second main argument touched upon by the noble Lady to-day, and previously, was that if we pass this Bill there will be a great reduction in the number of back-street abortions. My Lords, I hope that there will be a reduction, but from all I
1400
can find out experience in other countries does not show that to be the case. Relaxation of the law about abortion has led not to a diminution but, indeed, sometimes to an increase in illegal abortions, because people say, "if that can be done in hospitals, why can it not be done in private, in secrecy, without people getting to know about it?"
I have seen a study called Therapeutic Abortion, written by Dr. Kolstad and published by the Oslo University Press. Dr. Kolstad, I gather, was a keen advocate of a liberal abortion law. He quotes in his study that the experiment made in Russia in the 1920s led to such a startling increase in the number of legal abortions that separate hospitals had to be established for this purpose alone, while (and I quote) "at the same time the number of illegal operations rose".
I am told that in Germany it has been found that legalising abortions has led not only to a rise in the number of legal abortions but also in the total number of criminal abortions. And in Sweden, too, there has been no reduction in the number of illegal abortions.
I should like to remind your Lordships at the beginning of this debate to-day that the Council of the Royal College of Obstetricians and Gynæcologists produced a report on this, published on April 2, 1966. In their Report they say:
"There is evidence to show that except in those countries where abortion on demand and without inquiry is permissible, the legalisation of abortions often resulted in no reduction, and sometimes in a considerable increase, in the number of illegal abortions".
They go on to say that the effect of relaxing the law has been that:
"Women are increasingly ready to have pregnancies terminated and potential criminal abortionists less reluctant to help".
There is also Japan, Hungary and Czechoslovakia, and I can refer to passages showing that the position is much the same there. While I hope that the enactment of legislation of this kind will contribute to the reduction of back-street abortionists, it is, I think, a fallacy for the noble Lady to argue that if this Bill is passed a reduction will necessarily follow. I say that for this reason: that that was the foundation of the noble Lady's argument against what was done in Committee. She said that we should be throwing back the cases on to the

1401
back street abortionists. Whether or not the results of the legislation would be to reduce the number of back street abortions, surely what would be quite wrong and indefensible would be to make this Bill a vehicle for use by the professional abortionist?
The noble Baroness said that just as two doctors might get together, so might a doctor and consultant misuse the spirit and intent of this Bill. I do not deny that this could happen. I do not suggest—I do not think I have ever suggested—that the insertion of this provision was a complete safeguard against abuse. I do not put it as high as that, but I do say that in my belief there is far less risk of collusion, of what was called the "Harley Street racket", developing throughout the country if you have the requirement that one of the two opinions must be that of a consultant employed by the National Health Service. The Amendment moved in Committee did not limit it only to consultants; it could be anyone whose name was on the list approved by the Minister. The noble Lady is shaking her head, but that was the Amendment. It may be that the Minister will not operate that. He said he did not like it, but if it is inserted in the Bill we can apply pressure on him to operate it.
What are the arguments against operating it? Why should it not be operated if there is shown to be a shortage of consultants? In an area where there is a shortage of consultants it would not be very invidious to draw up a list, but that is the argument suggested. In my profession a distinction is drawn between juniors and Silks. In some cases the opinion of a Silk is taken as well as a junior. In the medical profession there is no such division. What I want to secure is that one of the two opinions obtained should be the opinion of someone who has reached a degree of eminence in his profession. I put forward this Amendment in Committee because it seemed to me to be an improvement, and a real improvement, on the Bill as it then stood. I hoped that the Government between Committee stage and Report stage would come forward with a suggestion of their own to meet what was the clear wish of this House on Committee, that this Bill should not provide opportunities for a
1402
doctor's racket. That has not happened, so we are left with this Amendment.
I suggest to the House that it is better to keep the words of this Amendment in the Bill, rather than to leave it wide open for doctors, newly called doctors, to engage in a racket. I would also ask your Lordships to bear this point in mind. If this Amendment is carried, if two doctors say they are of the opinion, in good faith, that the matters dealt with in paragraphs (a) or (b) are there, and they stick to that opinion, I do not see how there is ever likely to be a prosecution of a doctor for committing an illegal operation, because even though the opinion may be wrong, it will not be enough to prove that. You would have to prove that it was an opinion given in bad faith. Even if it was proved that a particular doctor, or the two doctors, had been engaged in thousands of abortions, that would not suffice, you would still have to prove that that particular opinion, in relation to that particular woman, was given in bad faith. So as I have said before, whether the Amendment is carried or not, this Bill is placing a tremendous trust in the medical profession. And I feel that, when you are placing this trust in the medical profession, there is a great case in favour of saying that one of the two doctors who has to give this opinion must be a doctor of such eminence that he holds the appointment of a consultant or is on a list approved by the Minister.
As the Bill now stands, it is true to say—and I am afraid it escaped my notice for a long time—that it is made a condition that one of the two doctors who gives that opinion has to perform the operation. I think it would be right, perhaps, if your Lordships would allow me, to say that I shall seek on Third Reading (because I only "spotted" this flaw a little time ago) to move an Amendment to make it permissible for two doctors to give the opinion and a third registered medical practitioner to operate. That, I think, would relieve a great deal of the burden to which the noble Lady drew attention and which she said would fall upon consultants. But, however that may be, when the noble Lady says that this is a wrecking Amendment she ignores the letter which appeared in The Times, written by the Chairman of the Royal College of

1403
Obstetricians and Gynæcologists, and signed by the Chairman of the British Medical Association. They did not regard this as a wrecking Amendment; they regarded it as a great improvement of the Bill. I believe it is, and I ask the House to adhere to its decision.
5.32 p.m.
LORD BROCK: My Lords, there has been much inaccurate thinking, speaking and writing about this matter. First, I find it difficult to understand how anyone can object to one of the doctors concerned being of that highest grade of training and experience that an appointment as consultant under the National Health Service would in most cases indicate, as has been emphasised by the noble and learned Viscount. The Bill provides a mechanism for the recognition of those practitioners who are competent to advise but who are not employed as consultants under the National Health Service. This mechanism is permissive and not obligatory; and I feel it is not necessarily relevant for the Minister of Health to declare that he does not wish to have the responsibility of compiling an appropriate list. Comparable selection occurs in certification of the insane.
Secondly, much that has been said and written shows that there is a gross misunderstanding in the minds of many about the significance of what would be involved in one of the doctors being in the National Health Service. It is thought that if a consultant is employed under the National Health Service he must inevitably be consulted under the conditions of the National Health Service, and that this will prevent patients from seeing him privately. It is stated also that this will cause further congestion and delay in hospitals. This is just not so. The Bill does not state that the consultant must be employed full time under the National Health Service, and any consultant who is not employed full time can accept private patients. Indeed, so also can a full-time consultant, except that he cannot personally retain a fee for doing so. Many full-time consultants do, in fact, see and treat private patients under these conditions.
We have been told that consultants are few and far between. I find it difficult to understand this, because the official
1404
figures published by the Ministry of Health state that there are nearly 9,000 consultants in the National Health Service, the actual figure being 8,737, and some two-thirds of these—that is, nearly 6,000—are part-time; therefore no restriction of choice results from the Bill's insisting on one doctor being a consultant. The situation will in fact be exactly the same as now in regard to the availability of consultants who are part-time or whole-time. The present clause will not make for congestion or delay, but it will tend to check collusion between two doctors in partnership recommending an abortion and working a racket, and it will also help to ensure a higher standard of advice—and, I may point out, a higher standard of treatment of the pregnant woman.
5.36 p.m.
VISCOUNT WAVERLEY: My Lords, in considering this Amendment I wish to confine myself solely to the proposition that, if it is accepted, any two doctors of general practitioner status will be able between themselves to terminate a pregnancy on medical grounds. There are, in my view, three basic grounds for opposing this Amendment. The first one, which has been eloquently and cogently argued on previous occasions, and again to-day by the noble and learned Viscount, Lord Dilhorne, is the real and very grave danger of collusion. This is an undoubted and very grave risk. Perhaps some of your Lordships may have addressed your minds on previous occasions exclusively to that particular aspect—this risk of collusion. As I see it, there are two further grounds which are of immense importance.
The first of these is the lack of professional skill to perform this operation safely. I am assuming now that we should be considering the operation of dilatation and curettage, which is normally used to terminate a pregnancy up to the twelfth, and sometimes up to the fourteenth, week. Dilatation and curettage is an operation performed routinely by gynæcologists, very frequently for diagnostic purposes, in non-pregnant women—for example, women who may be suffering from abnormal vaginal bleeding, to try to exclude the occurrence of, for instance, uterine cancer. This operation requires skill and it requires constant

1405
practice, even in those circumstances. But it is safe then. In pregnancy, however, there is quite a different situation, because here the wall of the uterus is friable and fragile; it is quite unlike the wall of the uterus in a non-pregnant woman. It is very easy to perforate, even in the most expert hands, with all the grave risks of peritonitis and the attendant complications.
All the gynæcologists I have consulted have emphasised this risk and the difficulty, even when in full practice, of doing dilatation and curettage with complete safety in a pregnant woman. It seems that doctors who are not gynæcologists never perform elective dilatation and curettage, and would ordinarily be totally inexperienced. So much more the risk if they attempted the operation in the special circumstances of the pregnant uterus. It would seem to me to be only relatively safe in the hands of doctors, other than gynæcologists, who have become unusually—and, may I say, suspiciously—adept at the performance of this operation in pregnancy. How would such doctors have acquired this expertise? I leave your Lordships to ponder that.
Second, the danger and grounds for not accepting this Amendment embrace not only lack of skill but also lack of knowledge or special experience on the part of the doctors. May I quote illustrative cases? Take a woman who is known to have heart disease of rheumatic fever origin. She becomes pregnant and develops heart failure in the first few weeks of pregnancy. She is gravely short of breath, fights for breath nightly, cannot lie flat in bed owing to distress. This might seem a cast-iron case for termination of pregnancy. But such a patient may have an obstructed valve amenable to correction by a cardiac surgeon, permitting a normal pregnancy, a normal confinement and normal post-natal life. I see such a patient about once a year; but in the country, of course, such cases are very common.
Or take, again, paroxysms or rapid heart rate in pregnancy—acceleration up to 150 or 200 in the minute. This is extremely alarming for the patient, because it is also attended by severe shortness of breath and attacks of faintness, with perhaps loss of consciousness; and these attacks occur, maybe, many times a
1406
day. This, too, could all too readily be regarded, in inexpert hands, as an unequivocal reason for termination of the pregnancy. I see a number of these patients in a year. It is, however, a complication of pregnancy itself: it betokens no underlying heart disease; it is easily treated, and attacks can be prevented by the use of appropriate drugs. Perhaps these two illustrations, out of numbers of others which I could give your Lordships, may cause you to pause before conferring on any two non-specified doctors the right to advise and perform termination of pregnancy.
5.42 p.m.
LORD AMULREE: My Lords, I should like briefly to say a word in support of this Amendment which has been moved by the noble Baroness, Lady Stocks. I had intended to say a great deal more, but most of the points have been made by her and therefore I will not take up your Lordships' time. If we pass this clause unamended I feel that it will inevitably lead to it becoming more difficult for women who quite rightly require abortion (I am not talking about anyone getting it done improperly, but about those who need abortion on perfectly lawful grounds) to get it, because the time factor will be considerably prolonged if they have to see consultants, whether privately or in a hospital. Indeed, a number of these patients will not want to go to see their consultants privately, and they will have to wait a long time, whereas I think I am right in saying that if an abortion is going to be done, for any reason, the sooner it is done the better it is for the patient. It is for that reason that I put my name to this Amendment, and it is for that reason I very much hope your Lordships will support it in the Division Lobby.
If we are going to put restrictions upon the type of doctor who is going to see the patient it will lead to more work for the back-street abortionist. If we are to mention a doctor at all, I think it should be remembered that the one doctor who knows something about the patient is her own private general practitioner. He would be the first person she would consult. He would know more about her general circumstances, physical and mental, and her surroundings, and he would be able to take appropriate action to get advice on the

1407
termination of that pregnancy if he thought fit. If such work were hedged around with restriction of the type now in the Bill I feel sure that the Bill would defeat its object. I ask for your Lordships' support for this Amendment.
LORD SOPER: My Lords, I very much hope the Amendment will be supported. I am not impressed by the argument that because at an earlier time the various arguments have already been deployed those arguments in favour of the Amendment are necessarily now invalid. There is perhaps a time-lag between truth and its acceptance, and there is certainly a requirement to think very much more deeply on this particular issue than I personally did when this matter was before your Lordships' House on the former occasion.
My own interest in this particular Abortion Bill is not first of all concerned with the promiscuous youngster of fifteen or sixteen years of age, and it is not first of all concerned with the frivolous wife who is pregnant by another man. I am concerned with the 80 per cent. of all abortion cases which arise in respectable conditions of married life and are concerned with the intolerable (it is thought) prospect of yet another child, and that is why in another place I should be concerned about the social clause. My main concern is whether this particular Amendment will help such pregnant women or will hinder them. I find a great deal of difficulty in reconciling what has been said in your Lordships' House to-day about the number of consultants with what was said in a letter to The Times this morning. There is a great deal of difference between 740 suitable consultants who are available and dispersed unequally throughout the country, and the somewhat astronomical figures to which we have just listened, of 4,000 or 5,000, although I do not know what relevance is attached to that. It seems to be beyond dispute that there will inevitably be delay; and in the early stages of pregnancy delay is a devastating experience for a woman, particularly if she is oppressed by the intolerable prospect of having yet another child.
It seems to me to be inevitable, as has already been said by the noble Lord, Lord Amulree, that there will be a restric-
1408
tion, and therefore, as a matter of commonsense, I have no doubt that there will be references back to the back-street abortionist as the pis-aller, when time is of the essence and every day adds to the intolerable burden. That is the major reason why I believe this particular Amendment should be carried. I think that possibly there are qualifications that should be required, and I believe that in some countries it is enacted that the two doctors involved must not be conjointly employed in the same practice. I think that would be a reasonable condition, but not this particular condition which, on the evidence coming to me, will dangerously delay the prospect of an abortion for those entirely admirable people whom I want to help, and I am sure your Lordships want to help.
We want to see the establishment of a decent, right and helpful procedure whereby an unwanted and intolerable burden will be avoided. It is in order to reduce the amount of suffering that is now endured in this way that I think this Amendment ought to be accepted, and perhaps afterwards we should think again about safeguards which may well be required in order that the rackets—which I think have in any case been exaggerated—may not be perpetuated.
5.48 p.m.
THE EARL OF SELKIRK: My Lords, I apologise for not being present at the previous stage of this Bill. I have put my name down to this Amendment for much the same reason as the noble Lord, Lord Amulree, that the clause as it stands appears to me to be restrictive—restrictive in quantity rather than in quality. I do not mean that it is not good advice to say that one should go to the finest adviser one can, although it is a curious arrangement which makes one do so under a criminal sanction. What worries me is the statement that there are 9,000 consultants. Are we really clear who consultants are, because the figure published is 1,400, and the figure for those in part-time practice is much lower. This raises a very real question.
My noble friend Lord Dilhorne said that he wanted to see a Statute with the terms clearly laid out. It is abundantly clear that what is or is not a legal abortion depends on another Statute. It depends on the National Health Insurance

1409
Act, and if that were amended the law in regard to abortion would equally be amended. I would not object to a clause of this character which specified the qualification of the doctor concerned. What I object to is the distinction between those practising under the National Health Insurance Act and those not. I believe this to be a wholly unreal distinction, and my noble friend Lord Dilhorne rightly made no effort to defend it. It is an improper distinction which has not previously been made, and which I do not think should be made in these circumstances.
VISCOUNT DILHORNE: Will the noble Earl forgive me for interrupting? I certainly defended it on the ground that that was one way in which one could distinguish members of the medical profession who had reached some degree of eminence in their profession. If he can suggest any other way to distinguish between junior and senior members of that profession, perhaps he will state it.
THE EARL OF SELKIRK: My Lords, I think the noble and learned Viscount has made it worse. He has now made an invidious distinction as if one is superior to the other. My distinction is that of qualification, that a man is a gynæcologist. Under this it could be an ear, nose and throat specialist. I think this is a defective Amendment. I have never had any objection to having a fight with another place, but I do not want to have a fight on a bad Amendment.
5.52 p.m.
LORD CONESFORD: My Lords, I have great respect for the noble Baroness, Lady Stocks, who moved this Amendment. I have never been one of those who was completely happy with the words which she proposes to strike out. But I would remind her of what happened on the last occasion. Far from the general underlying intention of these words being to wreck the Bill, one of the Amendments incorporating these words was moved by the noble Baroness, Lady Summerskill, who is a strong supporter of the Bill. There were three Amendments then before the House. I do not think any of them was perfect, but I think we chose the most nearly perfect of the three and inserted it in the Bill. If the noble Baroness, Lady Stocks, had come
1410
to amend these words in order to improve them, I think the House would have had considerable sympathy.
We now have to choose between having these words in the Bill or having no qualifications whatsoever. To this latter the House by a large majority showed itself to be opposed. I find it difficult also to believe that, if the number of consultants is wholly insufficient, the Minister of Health will take it upon himself to wreck the Bill by refusing to operate it by approving a list. I think it is a serious thing to suppose that that is the attitude the Minister will take. He may not like it, but refusal to operate the Bill is a rather serious step for any Minister to take. But if we have to choose between having no words in the Bill regarding qualification, which is the effect of the noble Baroness's Amendment, and having these words, imperfect as they may be, I think we must choose to have them in. The noble Lord, Lord Soper, and my noble friend Lord Selkirk, both say that, if we strike out these words, the Bill will be defective in their view. Surely we do not wish to carry into law something which we know to be defective.
The final argument for me in opposing this Amendment is the letter signed by the three doctors, who, after all, are writing in an important representative capacity, the President of the Royal College of Obstetricians and Gynæcologists, the Chairman of the British Medical Association Council and the Chairman of the British Medical Association Committee on Therapeutic Abortion. I should have thought those three names were names you simply could not cast aside and say their opinion was of no importance whatsoever. They believe themselves to be writing in the public interest and they are men who are entitled to be heard. On the arguments put forward, when it is clear that the House has the alternative of either resisting this Amendment or having no qualifications of the two doctors set out at all, I believe the House will come to the same conclusion as it did on Committee stage.
LORD FERRIER: My Lords, I believe that all noble Lords, or nearly all, here are anxious that this Bill should not fall by the wayside. Being one of those who in July voted for the Amendment which introduced the words now in the Bill, I

1411
should like to say I have now an open mind, very much in the light of what the noble and learned Viscount, Lord Dilhorne, has said. While admitting that these words were passed in July, time has gone by. I must admit, and I think the noble Lord, Lord Silkin, will agree, that I always expected an Amendment of this sort to appear at this stage of the Bill. Therefore I was glad to hear the noble Baroness, Lady Stocks, put forward this Amendment. But, as I say, I have an open mind as to how to vote, because it seems to me there is one piece of information which is lacking to all of us.
With great regret, we have to admit that doctors disagree about this subject. What the noble Lord, Lord Conesford, said is perfectly correct. Three eminent doctors have published their views; but other doctors have published other views. It is fair also, I think, to answer one or two of the things the noble and learned Viscount said. Not only has time gone by since July, but I believe that that has given the Government an opportunity to examine the clause as it is now in the Bill. I think they ought to tell us whether the proposal that National Health Service officials should be mentioned in this clause is feasible. I think we should also know whether there will be an attitude in the Health Department that they are not going to nominate other than National Health doctors; because when I voted for this wording in the Bill I was actuated more by the need for the welfare officer to be concerned in considerations relating to the waifs and strays type of abortion than about the qualification of the doctors involved in the sort of abortions to which the noble Lord, Lord Soper, referred and which are the great majority of the abortions which come into the hands of the doctors.
It is wrong, in my view, to say that to amend the Bill again would be to enable doctors to have a racket. I would read from a paper called Sterilization and Therapeutic Abortion in Aberdeen, by Professor Sir Dugald Baird, published in the Journal of Psychiatry in July, 1967. He says:
"Under the common law of Scotland it has for long been possible for a doctor acting in good faith to perform therapeutic abortion where, after a careful study of all the circumstances of the case and after due consultation with colleagues, he decides that the dis-
1412
advantages of continuing the pregnancy are greater than those of ending it. We therefore have in Scotland freedom to practise medicine in this sphere as in all others according to our clinical judgment."
Does any noble Lord say that because this is the case in Scotland there is a racket there in abortion? It just is not so, and I do not think it would be so here in this country if the Bill went through with these words expunged, as proposed by the Amendment.
Before I myself, as a Back-Bencher, feel I can apply myself to a decision whether to vote or not, I should like to know whether by including these words in the Bill as it now stands we make it impossible for the Bill to be carried out either properly or, what is more important in a matter of this sort, without delay. This is not a matter where you can hang about in a queue to await an appointment. This is something which has to be done at once. If we do not want this Bill to fall, then please may we know what the actual practical logistics of the matter are? If these words are left in the Bill, will it render it abortive or will it cause delay?
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, when, some months ago, your Lordships' House in Committee inserted the words which we are now discussing, some of us supported the insertion of the words for two reasons which have been mentioned several times this afternoon. One was as a measure of preventing a racket by particular doctors, and the other was to ensure the highest standards in connection with abortion. Those reasons still seem to me to stand.
If any other consideration has been brought up, perhaps not for the first time, but more forcefully than before, it is the plea that consultants are so scarce, or so inaccessible, that if these words were in there would be so much delay in decisions about abortions that many women in most unhappy circumstances would be driven to back-street abortions. I feel quite ready to listen to a plea of that kind, and to let it be decisive, if the facts are really thus. And if the facts have to be thus, is it really true that consultants are so inaccessible, viewing the country as a whole?
Furthermore, it is most important to ask: is it beyond the power of the

1413
Ministry to see that if the Bill were passed in this form the necessary provisions were made throughout the country? If a Bill were passed legalising abortions in certain conditions, and calling for the services of doctors of a certain standing and official status to be involved, would it not be the duty of the Government to see that what the Bill asked for in the words now in it was provided extensively? Is it possible to have a social reform like that envisaged in this Bill without commensurate executive action on the part of the Government to see that it works really well? It is considerations like that which make me feel that Lady Stocks has not succeeded in making out her case, because we have not full enough information that the consultants and others mentioned are so scarce, or need be so scarce and inaccessible if the Bill were passed.
LORD BYERS: My Lords, before the most reverend Primate sits down, may I ask how he proposes to create these "instant" consultants?
THE LORD ARCHBISHOP OF CANTERBURY: I am not proposing to create anybody. I am asking whether it is really true that there are so few of them; and also, whether it is beyond the power of the Government to give their certificate in sufficient quantities to meet the needs of the Bill?
THE EARL OF CRANBROOK: My Lords, might I ask the noble Lord what is the average waiting list on the average consultant's list under the National Health Service? That would give us a good idea of how long the wait would be.
LORD KINDERSLEY: My Lords, may I intervene for just one moment? Figures have been talked about, on the one side of 1,400 consultants, on the other side of 8,730. As Chairman of the ruling body of doctors and dentists, I would say that if anybody thinks that there are only 1,400 consultants in this country he must be off his head. That figure does not resemble the number of consultants at all. I am not referring to gynæcologists and so on, but to "consultants", as they are described.
6.4 p.m.
LORD SILKIN: My Lords, a good deal of discussion has taken place as to the actual number of consultants available. I am going to leave that part of the matter to my noble friend who speaks for the Ministry of Health. But, of course, there are consultants and consultants. A consultant who is concerned with something quite different from this subject is not going to improve the conditions of the operation at all. We are talking of those who are qualified to carry out an operation of this kind. But I will not pursue this aspect because I know that my noble friend is prepared to deal with it.
A good deal of the opening part of the speech of the noble and learned Viscount was directed to complaining about the fact that this Amendment should be on the Marshalled List at all. He said that it had been adequately discussed in Committee. I hope he will apply that doctrine to his own Amendment. He has down an Amendment which also was adequately discussed in Committee and was defeated. He has it down again to-day—I think it is Amendment No. 6. At any rate, it is the Amendment dealing with handicapped children. It was handsomely defeated in Committee, but the noble and learned Viscount has it down all over again. What is sauce for the goose is sauce for the gander, and he must not complain that my noble friend should put down an Amendment when he is doing exactly the same thing.
We are all, of course, entitled to think again on this vitally important subject. This Amendment goes to the root of the Bill. I would remind your Lordships of the purpose of the Bill. At the present time it is possible for an abortion to take place quite lawfully by one doctor alone, if he believes that it is for the benefit of the health or life of the pregnant woman. This Bill provides, as a safeguard, for two doctors. To that extent, it goes a long way towards what most of us felt was desirable: that there should be a second opinion. The issue we are now discussing is what is the nature of that second opinion to be? The noble Viscount, Lord Waverley, was, I think, in error in talking about the quality of the person who carries out the

1415
operation. That is, in any event, determined in the Bill: he must be a hospital doctor. What we are concerned about is, who should be the people who give the opinion?
VISCOUNT WAVERLEY: No. With great respect, as I understood it the operation of dilatation and curettage could be done by one of the two doctors not necessarily a hospital doctor at all. Certainly, it being a skilled operation, the operation for the termination of pregnancy after the 12 weeks period by abdominal operation necessarily, one would hope and expect, would be done by a qualified gynæcologist.
LORD SILKIN: My Lords, I must confess that I am out of my depth in this technical language, but the Bill makes it quite clear that the actual operation has to be carried out by a hospital doctor.
VISCOUNT DILHORNE: My Lords, may I say to the noble Lord, that it was to meet that point that I announced that I was going to move a Manuscript Amendment on Third Reading? The noble Lord has said that I have put down an Amendment on which I divided the Committee. I have looked through Hansard, and certainly I did not divide the Committee on any Amendment that I propose to move to-night.
LORD SILKIN: My Lords, I am astonished to hear that.
VISCOUNT DILHORNE: It is the fact.
LORD SILKIN: My Lords, I do not want to pursue that. I shall have a word to say when the Amendment is called. But I would remind the noble and learned Viscount of the Amendment that he did move in Committee, and which he has put down again for a second time.
VISCOUNT DILHORNE: My Lords, the noble Lord says that I moved and divided the Committee on an Amendment which I have put down again. I have not again put down an Amendment on which the Committee divided.
LORD SILKIN: Well, we shall see. I do not withdraw that suggestion, but I will come back to it at a later stage. I merely wanted to point out that the noble and learned Viscount had no right to rebuke my noble friend Lady Stocks for put-
1416
ting down this Amendment, because it goes to the root of the Bill, and if the Amendment which was carried in Committee stands it will wreck the Bill; it will make the position of the person whom we are setting out to help far worse than is the position to-day.
LORD CONESFORD: My Lords, would the noble Lord allow me to intervene? He says that there is provision in the Bill that the actual operation must be performed by a competent man. I wonder where he finds that provision.
LORD SILKIN: It is in subsection (2):
"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 for the time being approved for the purposes of this section by the said Minister or the Secretary of State."
So that in the cases to which I was referring the operation has to be done in a hospital and, therefore, by a person engaged in the hospital to carry out these operations. At any rate, that is the contention which I am putting forward.
A great deal is being made of the danger of collusion, and I should like to examine more closely what the danger really amounts to. Is it that two partners in a practice will start up a racket of freely giving authority for abortions to take place? In the vast majority of cases these are panel practices; the patient will come as a panel patient and cannot be charged a fee. The patient knows perfectly well that it would be quite unlawful for the doctor to ask for a fee in consideration of approving an abortion. There may be other cases involving paying patients, but by and large the paying patient is not the problem. The patient who can pay has been able to find her way to Harley Street or to other places and get an abortion when required. The person of whom we are thinking is the person who cannot afford to pay and does not expect to pay. It is that person who it is alleged will be able to get an abortion as a result of collusion.
What is the incentive for the two doctors in partnership, or for any other doctors, to collude? Surely, if they cannot charge a fee for collusion there is no incentive whatsoever. I am rather tired of hearing all this about collusion

1417
on the part of professional people. I have heard it so often about my own profession. Quite often people come to me and complain about their former solicitor, saying that he has been in collusion with the other side. In all my long experience I have never come across such a case. I have even heard it said about counsel, that counsel has been bought off by the other side not to present the strongest possible case. People are so inclined to talk freely about collusion in the case of professional men. I do not believe that it exists among doctors to anything like the extent suggested. I have never actually heard of a case. I have heard of cases of Harley Street people holding themselves out as available to carry out an abortion at present and doing so without a second opinion. I suggest that to have a second opinion would make the position rather more difficult than it is at present.
Then it has been said that the number of doctors available to carry out this operation is so few that it would result in women being deprived of the opportunity of abortion even though so entitled under this Bill. If that is so, is this provision not a wrecking provision which will render the objects of the Bill quite nugatory? It may be possible to get over this difficulty in London, but there are large parts of the country where it is quite impossible to get a consultant as required under the Amendment which has been passed. These women, even if they comply with all the conditions and requirements in the Bill, will in practice be deprived of the opportunity of getting an abortion.
Therefore I would ask noble Lords, even those who voted for the Amendment in the first instance, to think again. I ask them to think again, first, as to the possibility and likelihood of collusion and, secondly, as to the risk that women who are in a desperate situation and who are entitled to have an abortion within the terms of the Bill will not be able to get one for lack of the necessary skilled person or that there will be delay to such an extent as to render the operation more dangerous. In those circumstances I would ask your Lordships to reconsider the vote which you gave on the last occasion in July and to vote to-day for this Amendment.
6.17 p.m.
LORD KENNET: I am confident that I speak on behalf of the House in welcoming back the noble Lord, Lord Silkin, and in saying how happy we are that he is well enough to take this Bill through. It falls to my lot to give your Lordships the view of my right honourable friend the Minister of Health on this Amendment. The matter is, of course, one for the House, but there are certain facts and considerations which he would be glad the House should take into consideration. Many speakers have asked about the numbers of consultants. The situation is that last year there were 8,737 National Health Service consultants in the country, not all of them full-time. If one deducts the part-time hours, one gets to a full-time equivalent of 7,136. Those consultants were consultants in all specialties. During that year there were 521 consultants in obstetrics and gynæcology. Those 521 were full-time consultants. If one makes a reduction for the part-time element, I am afraid that I cannot give the House the precise figure equivalent to the reduction I gave in regard to the overall figure, but it would come to less than 521.
The question was asked: if a consultant has to sign, will there be a bottle-neck in getting to the consultants? It is impossible to say with any certainty whether there will or will not. It depends upon factors such as how scattered they are throughout the country, how hard they work; and it depends upon many things about which one can obtain no certainty. But I could certainly not put my hand on my heart and say that no bottleneck would be introduced by the enforced employment of these 521-minus consultants in this field.
It was also asked: what is the present delay in getting hospital beds? Of course, the figure varies very much. I think the figure which your Lordships may find most relevant is that in gynæcological departments of N.H.S. hospitals the average delay in getting an operation—not in emergency cases—is at the moment about six weeks. So we have six weeks at the moment and 521-minus consultants.
Of course, the clause as it stands contains the other provision that if a consultant is not readily available the woman

1419
in question may have recourse to somebody on a list maintained by the Minister of Health especially for the purpose. It has been stated repeatedly in this House and in the other place, that the Minister of Health is unwilling to undertake this function. One may ask oneself: why is this? Is there a precedent? I have had the precedents combed through in order to get some background on this, and the closest precedent I have been able to find is a list which the Minister maintains of those who are allowed to practise as ophthalmic medical practitioners. He has the advice of a committee in maintaining that list, and if a doctor gets on that list then he has the right to carry out sight testing in the National Health Service.
There are also persons not holding medical qualifications who have the right to do this sight testing—that is, ophthalmic opticians—and the purpose of this list is simply to ensure that the mere holding of a medical qualification does not debar one from doing something which can already be done by a non-medical person. The analogy is not at all close. There is no medically unqualified person legally carrying out abortions, nor is there going to be. Therefore this analogy, which is the closest I can find, is not at all close in this matter. The point here is that no Minister of Health has ever arrogated to himself the right to say, "This class of doctor shall carry out a surgical operation, and that class of doctor shall not", and the present Minister of Health is unwilling to be the first to arrogate to himself that right.
I should like to turn now to two other considerations which bear on the desirability of passing the Amendment now before the House. On the question of collusion and rackets it has been said—and it stands to reason—that although one can be certain that a consultancy indicates a superior degree of medical skill and experience, one cannot be absolutely certain that it indicates a superior degree of morality and social conscience. On this point, also, we should not forget the provisions later on in the Bill about the certification of opinions, the notification of operations and the specification of places in which they can be carried out.
I should like to remind the House how this works. One of these two doctors
1420
has the opinion, formed in good faith, that there ought to be an abortion, and he must certify the fact to the Ministry. If one of them then carries out the operation he must notify the fact to the Ministry, and he must also notify various details, to be specified later in regulations, about that operation. Any conflict between the opinion and the state of the woman as she was found when the operation was carried out will become apparent. Lastly, the operation must not be carried out except in a N.H.S. hospital or in a place specified by the Minister, and this means that it will be carried out according to the usual disciplines and precautions of hospitals and nursing homes authorised by the Minister. It seems that, with all those deterrents to rackets and collusion already contained in the Bill, it might be unnecessary to insist on the presence of a consultant as an added deterrent to collusion and rackets.
Lastly, there is a social consideration about the present doctor-plus-consultant provision. It seems inevitable that this provision would remove the family doctor from the scene. By far the greater proportion of family doctors do not perform abortions; they have no experience, they have no equipment, and they have no premises. Therefore, this means that the family doctor will have to refer the woman to another doctor. This second doctor is either a consultant or is the one who is not a consultant. If the consultant is to carry out the operation—and there are 521-minus of these consultants—that raises a bottleneck. If the other doctor is to do the operation, that means that the other doctor who is not a consultant cannot in the great majority of cases be a family doctor, because family doctors are not used to doing this. Therefore, although I realise that this is not the purpose of the provision as it was introduced, the necessary insertion of the consultant into the scene is bound in the great majority of cases to push the family doctor somewhat into the background.
VISCOUNT DILHORNE: My Lords, would the noble Lord forgive me for intervening for one moment on that? It is possible, is it not, by a simple Amendment which could be made on Third Reading, to secure that although the two opinions should be given, one by a doctor and one by a consultant, the operation could be conducted by some other surgeon?
LORD KENNET: My Lords, we can debate such a provision at an appropriate moment. At present we have before us an Amendment which would simply leave two doctors without any qualification of consultancy, as compared with the clause which contains the need for a consultant. With all these considerations in mind—and I repeat that this is very much a matter for the House—I would say that, in the view of the Government, the Amendment before the House would be quite acceptable.
THE EARL OF DUNDEE: My Lords, may I ask the noble Lord one question, for the purpose of information only? He is bearing in mind, is he not, that subsection (3) of this clause provides that subsection (2), and so much of subsection (1) as relates to the other opinion, shall not apply if a registered medical practitioner considers that the termination is immediately necessary to save life or prevent permanent injury? I just want the noble Lord to make it clear that the advice which he has been giving about bottlenecks, and the place where this is done and so on, does not apply to cases of urgency.
LORD KENNET: Yes, my Lords, I was already bearing that in mind. I think that the question of urgency or emergency is something quite separate, and obviously applies only to a very small minority of the cases which we are considering.
BARONESS EMMET OF AMBERLEY: My Lords, before the Minister sits down, may I ask him whether it is not a fact that merit payments are made to medical practitioners on a selective basis? I do not know whether this is done by the Minister. But if he has a selective basis there, I do not see what is to prevent his having a selective basis here.
LORD KENNET: My Lords, there are many provisions in law and in regulation for certain positions to be held only by certain persons. There is no provision in law for certain operations to be performed only by certain persons.
LORD FERRIER: My Lords, are we right in assuming that the figures the noble Lord gave are for England, Wales and Scotland? Also, are we correct in assuming that in those numbers are those medical men who, for conscience reasons,
1422
would not take part in a consultation or an operation of this sort?
LORD KENNET: I am sorry, my Lords, but I do not have immediately available the answer to the first question. I will try to provide it later at a convenient moment in the debate. In regard to the second question, this takes no account of those who for conscientious reasons would be unwilling to perform such an operation. The figures apply England and Wales, and not to Scotland.
LORD SEGAL: My Lords, of course my noble friend is perfectly right in saying that this House is entitled to change its mind on the decision which it took on July 26. But I think it would be utterly wrong if this House were stampeded into changing its mind by the kind of argument that was used by the noble Baroness, Lady Stocks, who introduced this Amendment by saying that if the House did not reverse its decision on this matter it would be running a risk of killing the Bill. As I see the position, I do not think that any fair-minded jury would ever convict this House of infanticide. I think that by far the greater danger is that this House may be guilty of passing a Bill by means of a precipitate labour, by not giving this Amendment full consideration at this stage.
I feel that our approach ought to be that the paramount consideration is the health and wellbeing of the mother, and I would ask the House: what on earth is the use of obtaining a second opinion if that is going to be of no advantage to the future of the mother, if it is to be given by a doctor with merely the same qualifications as the first doctor, it perhaps being simply a rubber-stamp endorsing of a decision already taken by the first doctor? Why insert this provision for a second doctor's opinion to be required at all unless it is going to be to the advantage of the mother in the sense that it will be a second opinion of some special benefit to the mother in the consideration of her case?
We have been told by my noble friend Lord Kennet, speaking on behalf of the Government from the Front Bench, that the Minister is unwilling to draw up such a list. Apparently the Minister is perfectly willing to draw up a list of places for the time being approved for

1423
the purposes of this action. He has not got a complete aversion to drawing up any list: he seems to have developed a particular aversion to drawing up a list which might be of benefit to the mother who needs extra medical advice. As a matter of fact, there is no need whatever for the Minister to draw up such a list. I think that all those who have the welfare and the health and wellbeing of the mother at heart are aware that there is such a list of doctors, of general practitioners skilled in midwifery, available at the present time. It is a list, approved by the medical bodies, of general practitioners who have certain qualifications in midwifery.
I submit to the House that if doctors are experienced in midwifery, invariably they have acquired experience in the management of abortions. I would ask my noble friend Lord Kennet to guide the House in this respect and to let us know what is the number of general practitioners on the midwifery list to-day.
LORD WAKEFIELD OF KENDAL: My Lords, before the Minister replies—
LORD SEGAL: I am willing to make way for my noble friend Lord Kennet if he can supply the House with this information. I speak subject to correction, but I think that, in all, this list amounts to something like 5,000 doctors on the general practitioner midwifery list. If it is wrong, I hope this figure may be corrected before we are asked to decide and to vote on this issue. But the point is that if one doctor's advice has been obtained, and if according to the requirements of this Bill and apparently the requirements of the Amendment proposed by Baroness Stocks a second opinion has to be obtained, then, in heaven's name, let us take good care that it will be a second opinion which will be to the benefit of the mother.
LORD WAKEFIELD OF KENDAL: My Lords, before the Minister replies, could he please clear up a point which is troubling me quite a lot? As I understand the position, the essence is time; that there ought not to be delay. Surely, from what we have heard, if there is to be a bottleneck anywhere, is it not the bottleneck of facilities and hospital beds rather than the number of consultants?
1424
Am I wrong in that? If the bottleneck is in fact hospital beds and facilities for carrying out the operations, and not consultants, then it seems to me that one of the main arguments for this Amendment falls to the ground. Could we please have information on that point? In the time available, is the bottleneck likely to be consultants or facilities?
6.35 p.m.
LORD KENNET: My Lords, we have been a long time on this Amendment, and it is perhaps not for me to speak again about it in any depth. I would say only this: that the midwifery list is not in the clause before the House and it is not in the Amendment before the House. There is no doubt much to be said both for and against giving that list some form of statutory existence, but this is perhaps not the time to do it. On the second point, about whether the bottleneck is likely to be consultants or places, I regret that I cannot give the House any firm information about this matter. Nor can anybody else in the world, because we do not at the moment know how many abortions there are in the country. We do not at the moment know, even, what a legal abortion is. It is our uncertainty about this which causes us to look with such favour upon the Bill now before your Lordships.
SEVERAL NOBLE LORDS: Divide!
THE LORD BISHOP OF DURHAM: My Lords, I have an eye on the time, but I think on the matter of figures we ought to be quite clear that, with the Bill as it stands, the consultant is not the man who need carry out the operation. He is not necessarily the gynæcologist. All we had in mind was that he should be a person used to taking responsible decisions, and I suspect that that number of people will be nearer to the 8,000 than to the 500-minus—that is, the other side.
BARONESS STOCKS: My Lords, I will take up very little time, but there are just one or two points to which I think I should like to reply. The first is that I should like to apologise to the noble Viscount, Lord Dilhorne, for the fact that my Amendment was tabled so late. It was because I was abroad in Cyprus and out of touch, and not until I came home did I find that no such Amendment had already been tabled. It was not an attempt to take anybody by surprise.

1425
The second point I should like to make is on the question about the Ministry of Health drawing up a list. The Ministry of Health is always very reluctant, and very naturally so, to make any discrimination between the reputed qualifications of one doctor and another. It is an extremely difficult thing to do, and I am not at all surprised at the reluctance of the Ministry to do it.
One noble Lord raised the question of a possible bottleneck in hospitals, but I think it is true to say—perhaps the noble Baroness, Lady Summerskill, will confirm
this—that at the present time a very large number of hospital beds are occupied by women who have attempted and failed to secure effective abortions and are the victims either of their own manipulation or of back-street abortionists. I think that is all I need say, because many of my opponents' arguments have been replied to already.
6.40 p.m.
On Question, Whether the said Amendment (No. 1Z) shall be agreed to?
Their Lordships divided: Contents, 113; Not-Contents, 79.

CONTENTS

Aberdare, L.

Fisher, L.

Norwich, V.

Addison, V.

Fraser of North Cape, L.

Pargiter, L.

Ailwyn, L.

Fulton, L.

Peddie, L.

Amherst, E.

Gardiner, L. (L. Chancellor.)

Plummer, Bs.

Amulree, L.

Gifford, L.

Ponsonby of Shulbrede, L.

Asquith of Yarnbury, Bs.

Goodman, L.

Popplewell, L.

Bessborough, E.

Grantchester, L.

Raglan, L.

Beswick, L.

Greenway, L.

Reay, L.

Birdwood, L.

Harvey of Tasburgh, L.

Redesdale, L.

Blackford, L.

Henley, L.

Ritchie of Dundee, L.

Blyton, L.

Hilton of Upton, L.

Robbins, L.

Boothby, L.

Holford, L.

Robertson of Oakridge, L.

Bowles, L.

Hunt, L.

Rosslyn, E.

Bristol, LBp.

Huntingdon, E.

Rowley, L.

Brockway, L.

Hurcomb, L.

Royle, L.

Buckinghamshire, E.

Jessel, L.

Rusholme, L.

Burden, L.

Kennet, L.

Serota, Bs.

Burton of Coventry, Bs.

Killearn, L.

Shackleton, L.

Byers, L.

Kings Norton, L.

Sherfield, L.

Caccia, L.

Lambert, V.

Silkin, L.

Campbell of Eskan, L.

Latham, L.

Soper, L. [Teller.]

Canterbury, LAbp.

Leatherland, L.

Sorensen, L.

Champion, L.

Llewelyn-Davies, L.

Stocks, Bs.

Chorley, L.

Lloyd of Hampstead, L.

Stonham, L.

Citrine, L.

McCorquodale of Newton, L.

Strabolgi, L.

Clwyd, L.

Maelor, L.

Strang L.

Colgrain, L.

Marks of Broughton, L.

Strathcarron, L.

Collison, L.

Merrivale, L.

Strathclyde, L.

Cranbrook, E.

Milverton, L.

Summerskill, Bs.

Cullen of Ashbourne, L.

Mitchison, L.

Swanborough, Bs.

Darwen, L.

Molson, L.

Swansea, L.

Donovan, L.

Monson, L.

Taylor of Mansfield, L. [Teller.]

Drumalbyn, L.

Morrison, L.

Terrington, L.

Elliot of Harwood, Bs.

Moyle, L.

Vernon, L.

Falkland, V.

Moyne, L.

Wade, L.

Faringdon, L.

Moynihan, L.

Walston, L.

Ferrier, L.

Noel-Buxton, L.

Willis, L.

Norwich, LBp.

Winterbottom, L.

NOT-CONTENTS

Ampthill, L.

Colville of Culross, V.

Dundee, E.

Barrington, V.

Conesford, L.

Durham, LBp.

Brecon, L.

Cork and Orrery, E.

Emmet of Amberley, Bs.

Brock, L. [Teller.]

Coutanche, L.

Exeter, LBp.

Brooke of Cumnor, L.

Craigavon, V.

Ferrers, E.

Brooke of Ystradfellte, Bs.

Craigmyle, L.

Foster of Harraby, L.

Buckton, L.

Crathorne, L.

Fortescue, E.

Carnock, L.

Daventry, V.

Goschen, V.

Carrington, L.

Denham, L.

Grenfell, L.

Carron, L.

Denning, L.

Grimston of Westbury, L.

Clifford of Chudleigh, L.

Dilhorne, V. [Teller.]

Haddington, E.

Hodson, L.

Oakshott, L.

Simonds, V.

Horsbrugh, Bs.

Parker of Waddington, L.

Somers, L.

Hylton-Foster, Bs.

Perth, E.

Stamp, L.

Iddesleigh, E.

Redmayne, L.

Strange of Knokin, Bs.

Kindersley, L.

Remnant, L.

Stuart of Findhorn, V.

Lindsey and Abingdon, E.

Rockley, L.

Thurlow, L.

Longford, E. (L. Privy Seal)

St. Aldwyn, E.

Truro, LBp.

Lothian, M.

St. Helens, L.

Vaux of Harrowden, L.

Lytton, E.

St. Just, L.

Wakefield of Kendal, L.

Mar, E.

St. Oswald, L.

Waverley, V.

Mersey, V.

Salisbury, M.

Wedgwood, L.

Mills, V.

Sanford, L.

Wells-Pestell, L.

Mountevans, L.

Sandys, L.

Winchester, LBp.

Mowbray and stourton, L.

Segal, L.

Woolley, L.

Napier and Ettrick, L.

Sempill, Ly.

Wootton of Abinger, Bs.

Ypres, E.

Moved accordingly, and, on Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
6.49 p.m.
LORD SEGAL LORD SEGAL moved, in subsection (1)(a), after "involve" to insert "serious". The noble Lord said: My Lords, I hope it may be to the convenience of the House that I be allowed to move Amendments Nos. 1 and 3 together. I trust also that it may be found advisable that Amendment No. 2, in the name of the noble and learned Viscount, Lord Dilhorne, be taken at the same time. I will not weary your Lordships on this occasion with a catalogue of some of the slight risks a woman may have to undergo in normal childbirth—these were fully described during the Committee stage—nor should we now attempt a definition of the word "serious", as the noble Lord, Lord Byers, then suggested. What may be a slight risk in the case of one woman may become a serious risk for another; for example, where the pregnancy is complicated by heart disease, renal disease, or mental stress. This definition of the word "serious" simply cannot be made for the purposes of this Bill; it must be left to the judgment of the doctor in each given case. It is also quite wrong and utterly misleading to assert, as was done during the Committee stage, that any risk is a grave risk. We must all accept that there are degrees of risk. Even a minor surgical operation involves some slight degree of risk, but some operations entail far more serious risks than others; and since we must accept that there are degrees of risk, should not the family doctor, who knows the patient, be left to judge, with outside advice if need be, what constitutes the degree of risk to justify an abortion?
Here may I say that I do not endorse the view of many noble Lords that this
1428
Bill should have been drafted by the Government. No Government have yet been created that would sponsor an Abortion Bill, not even this Government, as we have already seen—not even a Government with my noble friend Lord Stonham as spokesman—and it may be a long time ahead before we see a more progressively-minded Government than this one, or a Government more radically committed to reform.
The two Amendments which we are discussing were substantially in both Abortion Bills previously passed by this House. In my opinion they greatly improved the Bills, but they were deleted, only after prolonged debates, in another place. They were withdrawn in this House during the Committee stage on the clear undertaking given by the noble Lord, Lord Silkin, that they would be reconsidered in time for the Report stage. May I say that my noble friend Lord Silkin has more than handsomely fulfilled that undertaking. In fact, he has gone further than was necessary in accepting our Amendments. Instead of including these two simple words in subsection (1)(a) he has, in his Amendment No. 9, gone far beyond our request. It would have been bad enough to exclude references to the risks inseparable from a normal pregnancy or childbirth. That might still give rise to some doubt and confusion in the mind of a doctor. But to exclude
"references to such risk as is inseparable from any pregnancy or childbirth"
is surely to make confusion worse confounded. Are we to exclude even references to risks in abnormal pregnancy or childbirth; the risk run by a woman suffering from heart or kidney disease?
If Amendment No. 9 were approved, that surely would place a woman in a

1429
much worse position than she is to-day even without this Bill. But why resort to this mass of ponderous circumlocution which may only confuse the mind of a doctor, who is perhaps already in doubt about whether he may legally undertake an abortion, when the insertion of these two simple words would set his mind more surely at rest? I tend to prefer Amendment No. 1 to Amendment No. 2—it is more euphonic and less repetitive—but I do not mind much either way.
Why then do we persist in these qualifying Amendments? It is because we believe, as do the sponsors of the Bill by Amendment No. 9, that some restrictive factor is still necessary and should be included in this Bill. There are many noble Lords who would like every pregnant woman to become automatically entitled to an abortion quite legally on request. I go with them all the way in respect of environment and abnormalities, but I cannot go all the way with them when they insist that a woman must always be entitled to do as she pleases with her own body. Of course she is not so entitled. Every doctor knows that in the treatment of infectious diseases this doctrine cannot be upheld. But we also know that abortion merely on request cannot be the view of the sponsors of the Bill in either House, or why should they hedge it round with these three restraining factors—the second medical opinion (which even after another Division tonight we have still approved), the approved hospital or nursing home and the compulsory notification?
We all know that these three restraints, even taken together, are not absolute. A woman can still get an abortion on any pretext whatsoever if she has the means to pay the price. But these three restraints are, after all, matters of application or administration. There is not one restraint in the Bill to assert a matter of principle. The insertion of these two simple words asserts the positive principle, even if only by implication, a principle in which not only many Members of this House but also many millions of people in the country, women as well as men, believe in devoutly. It implies an insistence on those moral principles whereby potential life, once it has been created, should not lightly be destroyed. We have all agreed that this must not be the overriding principle. The life and
1430
health of the mother must always come first. Nevertheless, this Bill will remain a most inadequate Bill if all considerations of the sanctity of potential life are cast aside. To justify abortion on the grounds that continuation of pregnancy would interfere with the round of social engagements or a life of pleasure or the production of a film is not only wrong in principle; it is a denial of those moral values in which so many people so rightly believe. That is why I would very earnestly ask the sponsors of this Bill to include these two qualifying words, as they did so wisely in their own previous Abortion Bills. I beg to move.
Amendment moved—
Page 1, line 13, after ("involve") insert ("serious").—(Lord Segal.)
7.12 p.m.
LORD SILKIN: My Lords, it might be for the convenience of the House if my noble friend would be prepared to consider Amendment No. 5, which is to be moved by the noble and learned Lord, Lord Parker of Waddington. I am prepared to ask the House to accept that Amendment; it would save time. I want to be frank: I have not consulted the promoters of the Bill in another place, but I am prepared to take it upon myself to recommend to them that we should accept No. 5. If that were done, it would dispose of a number of Amendments on the Order Paper—and also a number of speeches in support of them. It would dispose of No. 2, No. 3, and of course No. 5, and also No. 12, which would involve an Amendment to No. 9, which would be accepted. If my noble friend is prepared to accept that and the House is prepared to accept it, we can dispose of it without any further ado.
VISCOUNT DILHORNE: My Lords, I hope that the noble Lord, Lord Segal, will not accept that suggestion immediately. I think that the suggestion is very useful, but while the test propounded in the Amendment in the name of the noble and learned Lord, Lord Parker of Waddington, is a very good test—as the Amendment stands, it means that the risk involved in pregnancy must be greater than the risk involved in termination—I would suggest that that does not quite cover the point made by the noble Lord, Lord Segal. He does not

1431
want—and I do not think the noble and learned Lord wants it either—an operation to be done on a marginal or slightest possible risk. I would suggest, if it could be done, that the word "substantially" could come before "greater". That would meet the noble Lord, Lord Segal, and all of us.
LORD PARKER OF WADDINGTON: My Lords, I wonder whether your Lordships will allow me, though my Amendment has not been called, to say a word about it. What brought me to putting down this Amendment was what occurred on the last occasion, when it became clear that what some of your Lordships really wanted was to weigh the risks inherent in terminating a pregnancy—because in every case there is some risk involved in that—against the risk of allowing it to continue, because again there is some risk in that. Only if risk A, where a pregnancy continues, was greater than risk B, termination, would a defence be created under this Bill.
If that is the test, then it is quite unnecessary, it seems to me, and indeed would be wrong, to talk about risk as being "serious", "substantial", "real" or any words of that sort. What is required is to weigh risks A and B, and only if risk A is greater—and I would welcome "substantially greater"—than risk B is there a defence.
May I add one word? I feel that the sponsors of the Bill were trying to meet my point in the last words in Amendment No. 9, when they say
'…the references in that paragraph to risk do not include references to such risk as is inseparable from any pregnancy or childbirth."
I do not feel that they meet the point, because one can imagine, as indeed we heard in relation to an Amendment earlier this afternoon, that a particular patient might have peculiar conditions—heart conditions, respiratory conditions or perhaps blood conditions—which make both the risk of pregnancy and the risk of termination very great. Under the sponsors' Amendment, all that has to be disregarded is the risk inseparable from any pregnancy—in other words, the normal risk to the average person. Bearing in mind that we are looking at a particular patient and weighing up whether
1432
risk A is greater than risk B it seems to me that what is sought to be done in that Amendment would not cover the point. Accordingly, I welcome the acceptance of my Amendment No. 5. I would then move No. 12, which is consequential.
BARONESS SUMMERSKILL: My Lords, may I say at this stage that I am surprised to hear my noble friend Lord Silkin taking the whole of the matter in his own hands and saying that we will accept all this, but he has not consulted anybody before saying it.
LORD SILKIN: My Lords, I want to safeguard the position. In due course this Bill goes back to another place. What I said was that I have not consulted anybody in another place and therefore did not want it to be felt in another place that I had committed them. I am not in a position to do so.
BARONESS SUMMERSKILL: My Lords, I thought it was rather curious that my noble friend, before we had debated the subject at all, before anybody had spoken but the mover, should get up and say that he was prepared to accept six Amendments and that it would save a lot of time if we accepted them. I am not prepared to accept them. I dare even to challenge the noble and learned Lord, Lord Parker of Waddington, in what he said. My noble friend Lord Silkin has not given this matter sufficient thought. May I put this to him?
I fully understand how my noble friend Lord Segal feels, though what he said sounded rather like a Second Reading speech on woman and abortion. We are now discussing something entirely different. Because it may be that noble Lords who have not been in all of the debates on abortion may have forgotten various points, may I remind the House that the purpose of the Amendment just moved by my noble friend is to make it an offence for a doctor to terminate a pregnancy unless he has formed the opinion that the continuation of pregnancy would involve serious risk to life or a substantial injury to physical or mental health. The Amendment is to insert the word "substantial".
VISCOUNT DILHORNE: My Lords, is the Amendment to insert "substantial"?

1433
I did not think it had been moved or called.
BARONESS SUMMERSKILL: The noble Lord, Lord Segal, said that he would take the two Amendments together.
LORD SEGAL: The Amendments that I moved were Amendments Nos. 1 and 3 together.
VISCOUNT DILHORNE: Not No. 2.
BARONESS SUMMERSKILL: This is the point, my Lords. This has been carefully drafted by people who understand the position, and if they had thought that it would safeguard the woman, then it would have been inserted. But what doctors can define at a certain time what is a serious or substantial risk? The most eminent obstetricians in our hospitals—and I remember the one who taught me—teach their students that no confinement can be free from any risk until it is all over and the mother is tucked up in bed. Indeed, they are not prepared to define the risk. They say that all confinements have an element of risk, but none of them define it.
To prove my point that this must be the attitude of obstetricians, in our urban areas to-day nearly every woman is taken into hospital to have her first baby; and although I have said that she ought to stay there seven days and have a proper rest, I know, and the obstetricians who decide this know, that the most important time to have her there is for the confinement. In London, pretty well every woman having her first baby is now taken into a hospital because there is a risk. But nobody can define how much risk there is: they cannot define the degree. Indeed, the admission paper (I looked at one yesterday) says:
"We are admitting this woman to a hospital".
But they do not define the kind of risk. They just put "primip", meaning the first baby. Your Lordships are being asked to-day to amend this Bill in such a way that two general practitioners will be able to define the measure of risk. If these Amendments are accepted, there would be no uniform approach over the country, and there would be ceaseless arguments between physicians, gynæcolo-
1434
gists, and particularly psychiatrists, about the measure of the risk.
On the subject of risk perhaps I may mention the three noble Lords whose names appear to this Amendment, my noble friend Lord Segal, the noble Viscount, Lord Barrington, and the noble Viscount, Lord Dilhorne. They all differ physically, politically, spiritually and psychologically. Who could say how those three noble Lords would react if they were all submitted to a severe shock? Nobody. Nobody could say that with one there would be only a slight risk, and that another might suffer a severe risk. This is not my view. I am echoing the views of people who are concerned with this matter, of doctors who would not like to commit themselves to this, and who cannot commit themselves.
If these Amendments are accepted, a woman must not be relieved unless there is a risk of substantial damage to her mental state. One would have thought that any damage to a woman's mental health would be regarded as a serious impairment of her efficiency. Who dare say that if a pregnant woman has only slight damage it does not matter? I would go further and say that if it is accepted that she will have an abortion only if there is a slight impairment of her mental condition, and not a serious one, then the present law must be amended, for to-day a doctor is permitted to terminate a pregnancy legally on the grounds that a woman's mental health will be impaired, irrespective of degree. Nobody has ever suggested that an abortion can be carried out only if it is felt that a woman will be only slightly damaged.
I come back to my three examples of people who differ, in the same way as we have women who differ. Who could say that a woman who is of a temperamental kind would not react differently from perhaps the bovine kind? But no doctor must be asked to commit himself in advance. I say that these Amendments are designed to give any doctor a plausible excuse not to operate the provisions of the Bill. Without hurting the feelings of any Catholic friends, I realise that Catholic doctors will not be prepared to operate this Bill. In the county of Lancashire, where there is a big Catholic population, many Catholic doctors will be placed in an embarrassing position. They may not like to say that they are

1435
not going to terminate a pregnancy because their religion will not permit them. But if your Lordships put this into the Bill they will have a wonderful, plausible excuse. A doctor will be able to say in every case that there can be no substantial impairment, and therefore the woman cannot have the abortion. I am not exaggerating when I say that, in that sense, these Amendments must be wrecking Amendments.
LORD MOLSON: My Lords, we welcome very much the speech which has just been made by the noble Baroness. I think her line of argument was most convincing. The only point about it was that she was under the misapprehension that the noble Lord, Lord Silkin, was prepared to accept the Amendments that are now under discussion. The noble Lord is of the same opinion as the noble Baroness, and he is not prepared to accept these Amendments.
BARONESS SUMMERSKILL: He said that he was.
SEVERAL NOBLE LORDS: No.
BARONESS SUMMERSKILL: It sounded very much as if the noble Lord, Lord Silkin, said: "To save discussion we will accept these Amendments".
LORD MOLSON: If I may explain the proposal that has been made, it is this. Availing himself of the rather free procedure of your Lordships' House, the noble Lord, Lord Silkin, said that when the time came to discuss the Amendment standing in the name of the noble and learned Lord the Lord Chief Justice he would be willing to accept that Amendment, but that he was not willing to accept the Amendments which were proposed by the noble Lord, Lord Segal, and the noble and learned Viscount, Lord Dilhorne. So what is being proposed at the present time—and I hope it will commend itself to the noble Baroness, as well as to the House as a whole—is that the clause should read thus:
"that the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury greater than if the pregnancy were terminated".
I think that meets the point of the noble Lady. It does not, I think, make any substantial difference to the way in which the Bill would be interpreted, but it does
1436
give the Bill a clarity and precision that it would not otherwise have.
If the criterion is to be a comparative one, between abortion and allowing the pregnancy to continue, obviously there is no need for any of these words, such as "serious" or "substantial". They would not be acceptable to the sponsors of this Bill, for the reason which has been given by the noble Baroness: that the words would mean that in fact, even though there was an advantage to the woman in terminating the pregnancy, unless it was a very substantial one, it would not be lawful for the operation to take place. I therefore hope and believe that this meets the point made by the noble Baroness, and I hope it will be generally acceptable to the House.
This is an attempt at availing ourselves of the drafting ability of the noble and learned Lord, the Lord Chief Justice. We do not think that it in any way weakens the Bill, but we accept entirely what he said on the Committee stage: that as one called upon to administer the criminal law he is most anxious that the wording should be such as learned Judges would be able to interpret.
VISCOUNT DILHORNE: My Lords, I rise because reference has been made to Amendment No. 2 (in fact, I think the noble Baroness referred to it more than once), concerning a "substantial" risk. That Amendment has not been moved by me. I sent it in as an Amendment for Third Reading, but it has been put down as a second string, so to speak. Since it is not possible to put down Amendments for Third Reading until Report stage is over, the Table has very kindly transferred it to the Report stage. I did not propose to move that Amendment at that stage. The noble Lord, Lord Segal, has drawn attention to what is a serious defect in the Bill as it stands; because, as the noble Lady herself said, in every pregnancy there is a risk to life and of injury. It that be so, as the Bill stands any two doctors could say in every case, "There is a risk to life; there is a risk of injury, and therefore we can lawfully abort."
Unless there is some alteration of that you get a provision here which can be interpreted as providing for abortion on demand. I, for one, was extremely glad to hear that on this occasion the noble Lord, Lord Silkin, despite the injustice done in accusing me of dividing the

1437
House on an Amendment I did not move in Committee, has been prepared to accept the Lord Chief Justice's Amendment. If that is accepted, we can get rid of a great many of the Amendments on this Paper. I myself should have liked the word "substantially" to be in front of the word "greater" in his Amendment, for this reason. The risks of the pregnancy will still have to be balanced against the risks of the termination. I should have thought that termination would be justifiable and justified only if the risks of the pregnancy were substantially greater than those of termination. We are not here wanting to use words that have to be defined with absolute precision; we are seeking to give guidance to the doctors as to the matters on which they must form their opinions, to enable the law to be clearly stated, and to exclude the possibility that exists as the Bill stands, that at present it can be interpreted as opening the door to abortion on demand.
I do not propose to move my Amendment, No. 3, and I imagine that the noble Lord, Lord Segal, will probably withdraw this Amendment and not move No. 3. Then we can go on to Amendment No. 4. I cannot speak for Lord Segal, but I welcome this attitude on the part of Lord Silkin, and I was hoping that he would not resile from that attitude, despite what the noble Baroness said, and follow the example of the most reverend Primate of speaking against an Amendment and then voting for it.
BARONESS SUMMERSKILL: My Lords, as the noble Lord addressed some remarks to me, may I appeal to him not to put in "substantial"? He is a lawyer and he is suggesting that he would like to see it in the Amendment of the noble and learned Lord, Lord Parker of Waddington. May I ask him to change his mind? He is a lawyer and he knows that good legislation should be easily interpreted. I can assure him that if he puts in these extra words it will involve a great deal of argument, and the only person who will finally suffer is the woman, because there will be greater delay.
LORD PARKER OF WADDINGTON: My Lords, in the very informal procedure which we seem to have adopted to-
1438
night, may I say a word? May I assure the noble Baroness that I dislike just as much words such as "serious" and "substantial", and it was for that very reason that I put down the Amendment under which the decision was to be arrived at by comparing one risk with another. I think that if that is done, if the practitioners' minds are directed to that point, the Judge will be able to direct the jury to that point. Probably there is no need for any adjective to qualify "greater".
LORD CONESFORD: My Lords, I find myself in the somewhat unusual position of heartily supporting the noble Baroness. I think the insertion of the adjectives and of the adverb that has been suggested was possibly prompted by the absence of such words as the noble and learned Lord, the Lord Chief Justice, is later going to move to insert. I believe that it is generally wise to omit adjectives and adverbs unless they are needed and you are quite confident of the effect they will have. I believe they would not be without danger here, and I should like to support her objection to them while welcoming such an Amendment as will be moved by the Lord Chief Justice.
7.27 p.m.
LORD STONHAM: My Lords, as the Government are neutral on this Bill, my noble friend Lord Kennet and I are in the position of umpires. I have made a vow to blow my whistle very infrequently. I have felt during this lively discussion that some clarity was needed as to precisely what we were discussing. I hope I am right in now surmising that we are discussing Amendment No. 1, and considering only Amendment No. 1, with which my noble friend Lord Segal has asked us to debate at the same time Amendment No. 3, and that the noble and learned Viscount, Lord Dilhorne, somewhat reluctantly and late, agreed that we should debate Amendment No. 2.
VISCOUNT DILHORNE: I did not want to move No. 2. Everyone has been debating it. I did not move it, and I did not want to do so.
LORD STONHAM: I was listening most carefully, and I sympathise with the noble and learned Viscount. He did not move it; I knew he did not want to. Nevertheless, he very kindly came in and debated it a little, to try to persuade the

1439
noble and learned Lord, the Lord Chief Justice, to include the words "substantial" or "substantially" in his Amendment.
I understand we are not discussing Amendment No. 5, but there is a possibility, a vague one, that if my noble friend Lord Segal took the course suggested to him by the noble and learned Viscount and withdrew Amendment No. 1, we might be able to come to a conclusion on Amendments Nos. 1, 2, 3 and 5; and if Lord Silkin did not insist on moving No. 4 for the time being, and we could return to that vitally important Amendment after the dinner adjournment. I hope that will meet with general approval.
LORD SEGAL: My Lords, I am perfectly willing, if the House wishes it, to withdraw Amendment No. 1. In deference to the wishes of the House, I will withdraw Amendment No. 1 and not move No. 3.
Amendment, by leave, withdrawn.
LORD BOWLES: My Lords, this may be a convenient time for me to move that we now take the dinner adjournment. I suggest we resume at half past eight. I accordingly move that the House do now adjourn.
VISCOUNT DILHORNE: My Lords, surely we said that we would dispose, if we could, of Amendments Nos. 5 and 12 at the same time. We really discussed them all together. I suggest that, while we postpone consideration of No. 4, with the consent of the House, perhaps Nos. 5 and 12 could now be put to the House.
LORD STONHAM: My Lords, that was precisely the suggestion I made, and I hoped it would be agreed.
THE DEPUTY SPEAKER (LORD OAKSHOTT): My Lords, my advice is that I cannot anticipate Amendment No. 4.
LORD BOWLES: My Lords, I beg to move the House do now adjourn.
[The Sitting was suspended from 7.31 p.m. until 8.30 p.m.]
LORD SILKIN LORD SILKIN moved, in subsection (1)(a), after "mental health of the pregnant woman", to insert "or any existing children of her family". The noble Lord said: I beg to move the Amendment standing in my name and that of the noble Lord, Lord Molson. This is an Amendment which is designed to restore the Bill to the condition in which it was before the Amendment was passed in Committee by one vote. It deals with what has become known as the "social clause", a term which I think is quite wrong. It is not really a social clause. It is merely a provision that in considering the circumstances of the pregnant woman the doctor has to take account of her total environment, or of the circumstances of the existing children. What was deleted in the Committee stage was any reference to the condition of the existing children.
I recognise that this is a really important point. It was argued that it departs from the whole principle of the Bill, which is to take into account the circumstances of the pregnant woman herself and nothing else and nobody outside them, whereas under the provision of the clause as it then stood we were taking into account what was called an extraneous matter—something that was not necessarily anything to do with the pregnant woman, but the condition of her children.
I want to justify that. Of course, in the vast majority of cases the condition of a pregnant woman, the risk that she is running, is wrapped up with the risk of the injury to existing children. Of course she is apprehensive. If we take the majority of cases where this is going to apply, a woman with four or five children is apprehensive about what will be the effect on the existing children of the birth of another child into the family, and that apprehension may involve her in some kind of risk to her health. That is already covered. If in fact there is a risk of injury to her health by the birth of another child, whether it is through anxiety as to the fate of the family or for any other cause, that is already covered in the Bill; but what it was desired to do was to cover quite separately—and I want to be quite frank about it—the injury to existing children, even if it did not necessarily mean any

1441
injury to the health of the pregnant woman herself.
I contend that there are cases, although there may not be many, where the injury to existing children will be severe and grave and ought to be taken into account by the doctors who are going to decide whether or not an abortion should take place. It is not, as was stated by one speaker—I am afraid now to attribute it to the noble and learned Viscount, Lord Dilhorne, but I think it was he—that little Willie would be worried or jealous because there was going to be another child in the family. Of course, if that was all, I cannot conceive that two doctors would permit an abortion to take place on that ground. I have in mind a much graver injury to existing children than that. Let me give one example, almost on the spur of the moment, that of a family of four or five. The two younger children are attending a clinic or a hospital and the mother has to take them two or three times a week, which is not an uncommon thing at all. If another child appears on the scene she is quite unable to do that, and the existing children will suffer. Or perhaps the younger children need special care in other directions which the pregnant woman will not be able to give them if another child appears on the scene, and the existing children will suffer.
By this Amendment I am suggesting that we should permit the doctors to take those facts into consideration, that is, to regard the family as a unit, and to decide whether, in the light of all the circumstances, an abortion should be permitted. Of course, one must assume that they will act responsibly; there is no reason why they should not. Just as they would act responsibly in taking account of the existing environment, so they would act responsibly in considering the circumstances of the existing children. If it appears to them that the existing children will suffer as a result of another child appearing in the family, then my Amendment would permit doctors to take that into account and to agree to an abortion.
This was very fully discussed on the last occasion in Committee. I rather feel that we misled ourselves by using the term "social clause", instead of looking at exactly what was intended by this
1442
provision, giving it a name which to some noble Lords appeared disagreeable or irrelevant and then rejecting the provision on the score of the name which we ourselves had given to it. I am quite convinced that if we look at it dispassionately and decide whether, in circumstances such as I have set out, it would be right for the doctors to be enabled to permit an abortion, then I am sure that we shall be prepared to reverse our decision, which, incidentally, was only by one vote. I do not think I can really add any more to the case for this Amendment. I hope that your Lordships will be prepared to do what you did on the last occasion. I beg to move.
Amendment moved—
Page 1, line 15, after ("woman") insert ("or any existing children of her family").—(Lord Silkin.)
8.37 p.m.
BARONESS SUMMERSKILL: My Lords, I made a speech on the last occasion, and subsequently we lost the Division by only one vote. I do not want to repeat all I said on that occasion, but in view of the fact that the House has seen fit to change its mind on another very important Amendment I hope that after careful consideration it will support this Amendment to-day. Of course, as a woman I find it extremely difficult to understand the mind of the man who is obsessed by a fear that a woman, having given birth to a number of children and finding it difficult to support them, becomes pregnant again and will seek an abortion. I find that difficult to understand. I can understand the Catholic case. It is very simple. The Catholic case is that the immortal soul of the fœtus must not be sacrificed to the welfare of the existing children. It is as simple as that. If they believe that that immortal soul must be preserved, nothing I can say will convince them otherwise.
But I want to say this to the House. When we are thinking of a mother and her family we are not thinking of the small family—and by "small" I am prepared to go up to four. It is my experience, that in most families to-day in comfortable homes, in the homes of the comfortable artisans, a woman having given birth to a son and a daughter says, "That's that". If she has two sons or two daughters she may often have

1443
another child, but generally she is satisfied, her maternal instinct is satisfied, with her two children, and for the most part she then of course uses some birth control method.
I remember so well the speech of the noble and learned Viscount, Lord Dilhorne, and I was staggered when I thought of the experience he had had in the courts that he could say that we were trying to save Annie or Billy from having another brother whom they would not like. That is a completely nonsensical approach. We have in mind the masses of people who live chiefly in the industrial areas of our towns; who live in the slums; who live in massive blocks of flats built in the last century which have become slums; who live in places where it is impossible to segregate the sexes; where adolescents sleep in the same room; where families are kept awake at night by a crying child; where children cannot be put to bed at night because mother and father are not ready to go.
The result of such circumstances is known by everybody who has worked in these places. The children are undersized. I always remember, when I went first into another place, a wonderful little miner Member. We were debating poverty in childhood. He pointed to the Conservative Opposition and said, "You can prove my point. All of you are one foot taller than I am." Of course, that was absolutely sound. He was one of a family of twelve, and immediately another mouth came into the family the available food had to be spread between not eleven but twelve.
We are appealing for those families where poverty exists. It is no good saying that in this Welfare State we have no poverty. We are told over and over again, whether it be at Conservative Conferences or Labour Conferences, that there are children in this country suffering from a high degree of poverty. We are pleading for those families which are already so big that the wife is harassed, and the husband is bad-tempered and stays out at night in the public-houses because he cannot tolerate coming home; then often, when he does come home, he is half drunk and he has sexual intercourse again and creates another baby. This is the cycle that is repeated in every slum area in Britain.
1444
We are asking that if two doctors and a welfare officer—because a welfare officer is often called into these homes—say that it is against the interests of the children, it is in fact an injury, then it is cruelty to them. Probably if in this Amendment we put it to the House that an abortion would be permitted in those cases where cruelty would be inflicted on the existing children if it were withheld, I think the whole House would support it. But how does one define cruelty? Surely, hunger, cold, sleeplessness, overcrowded conditions are forms of cruelty which have a lasting effect upon a child, probably greater than physical injury. The reports on children in borstal and on the young men who pack our prisons to-day read the same, with monotonous regularity: "A bad home background", "Overcrowded", "Father unemployed or a drunk", "Mother harassed". These are the people for whom we are appealing. Do not think that it will be abused. Women in comfortable circumstances want their babies, the maternal instinct is extremely powerful. But for the sake of the existing children, for the sake of the mother, and indeed for the sake of the whole community, I beg your Lordships to-night to permit the two doctors who will be chosen to decide in their wisdom that an abortion can be given in these cases.
BARONESS EMMET OF AMBERLEY: My Lords, before the noble Baroness sits down, my I ask whether she agrees with me that in the sort of case she is describing, for which naturally everybody feels the greatest possible sympathy, it would be far better that the father should be dealt with medically rather than that there should be an abortion of the mother and the killing of the child? We are starting at the wrong end.
BARONESS SUMMERSKILL: The noble Baroness has time to put down another Amendment.
VISCOUNT BARRINGTON: My Lords, I must apologise for talking upon this matter, since I have spoken a great deal on this subject and I am aware that I have been a nuisance on it, but I feel that this particular Amendment is of such importance that I should like to say the few things I have to say before those of your Lordships who know more about the matter take the field. I listened with

1445
great interest to the noble Lord, Lord Silkin, and with great emotion, as I always do, to the noble Baroness, Lady Summerskill. I will not for the moment comment upon what she has said, because it always moves me profoundly. She always takes an extreme case and turns my heart round in me. I think one could quote cases the other way, but I shall not do so. The noble Lord, Lord Silkin, who is in a more responsible position, made some very interesting comments.
My remarks will be brief. I feel that this House is having to decide, at enormous pressure, some questions which, whether we like it or not, have not been very much threshed out. We have received a good deal of advice from newspapers of the highest integrity telling us what to do. If I may take one which is perhaps the most prejudiced against the side I take, the New Statesman has said that if this House were to fly obstinately in the face of the expert and of the public, it would only have itself to thank if it got into trouble. We all have to take what the New Statesman says very seriously. If the Pope's highest and proudest title is a servant of the servants of God, I suppose the New Statesman might claim to be the governess of the governments of nations, but it is well worth listening to what it says. But I should like to know who are the experts and who are the public. In rejecting the last Amendment, your Lordships have accepted the advice of some experts rather than others.
A great many experts who speak on this subject on behalf of liberalising, as it is called, abortion, are experts on subjects other than the one about which they are talking. Mrs. Jacquetta Hawkes, who is an archeologist of great note, wrote an article in Punch. I have not a copy here. I thought that it was meant to be a parody of the sort of attack that is made upon the society of which I have the great honour to be chairman. But it was not; it was meant quite seriously. If I remember rightly, it said that the Society for the Protection of Unborn Children raised her bile. That is perfectly fair, it raises everybody's bile; but it also struck her that the attempt to suggest that a fœtus struggles before being killed was the worst case of a false use of the emotions she had ever encountered in her life. Now she is a woman of
1446
some age—I mean of my age—and she has heard a great many accounts from people like Dr. Goebbels and so on. I do not think any expert would deny that "killed" is the only word to use here. I shall not go on about the subject of experts, because I think I should be right in saying that experts on one subject very seldom understand experts on another. I shall not go so far as to say that the noble and learned Lord, the Lord Chief Justice, may not entirely have understood the noble Lord—I do not know what is the word for doctors; I will not say antiseptic—the incisive Lord Brock, or the noble Viscount, Lord Waverley, or vice versa, which I think is possible.
We have had a technical debate and on this Amendment I think we want to consider a very broad subject, and the most important of all; that is, whether there should be a social clause. The noble Lord, Lord Silkin, as before, implied that this was not a social clause. He did not like the word "social". It has been brought out before, and no doubt will be again by other speakers, that the noble Lord, Lord Soper, and the noble Baroness both approved this as being a social clause on certain grounds only; and so did Mr. Douglas Houghton and, in particular, Mrs. Douglas Houghton in many articles in the papers. If it is not a social clause, I should like whoever answers on behalf of either the sponsors of the Bill or the Government to describe a little more accurately what this expression means. I know the noble Lord, Lord Silkin, gave some examples, at the end of which he said that he assumed, of course, that the two doctors—and he laid great stress on the two doctors—would act with responsibility. We should all like to assume that.
Of course, in this Bill we have very few assurances—and we may have less as the evening goes on—as to the status of the doctors. The noble Lord, Lord Silkin, said earlier that he did not believe there was much collusion, but that a guard against that was to have two doctors. With great respect, I should have thought, if I were a doctor without very much conscience—and if any other Member of your Lordships' House was the same—that if we were told that two doctors had to decide, some kind of "grapevine" or wireless telegraphy might

1447
occur between us and we might collaborate. I think it would be an inducement to collusion if there were any loophole in this Bill—and I think there are a great many—which suggested that one could make a very great profit out of doing what the noble Baroness quoted the noble Lord, Lord Taylor, as saying was one of the worst things; that is, making a profit out of this particular operation.
Later on, if I am allowed to say anything on another Amendment, I shall try to put my point of view about this being quite unique among other operations, in that it is the only operation (I am open to correction from doctors in the House) in which the deliberate aim of the doctor is to kill something which may or may not be a human being. I find it difficult to be distinctive, but, unless I hear to the contrary, I believe that it is certainly taking the life of a living body of a human being.
To get away from experts, some take the view that the public are entirely against the reactionary aspect of the Lords and are entirely in favour of the more liberal attitude of the Commons. My Lords, there again I should like to know what that is based upon. The noble Lord, Lord Silkin, said again last Session, I think, that it was based on opinion polls, and that it was very easy to laugh at opinion polls if they went against one. I think it is equally easy to laugh at them if they go in one's favour. I do not think we should legislate by opinion polls because I do not think they are sufficiently wide, but if one is being beaten about the head by balloons of this kind perhaps I can say that I was taken to task in The Tunes a long time ago for suggesting that the questions that are asked in opinion polls do to some extent determine the answers that you get. I was taken to task by Mrs. Madeleine Simmons, who is a very great publicist on behalf of an idealist society, the Abortion Law Reform Society. She pointed out that I was suggesting that the questions were slanted. I answered, in a letter which unfortunately was not published, by saying that the questions were not slanted, but it depended on what was asked; and with your Lordships' permission—and this will not take a minute—I should like to read out only two of the questions asked and the
1448
answers that were given in a fair opinion poll.
LORD STONHAM: My Lords, before the noble Viscount reads out these questions and answers, would he ask himself whether what he has said and what he now proposes to say is relevant to the question of adding the words "or any existing children" to the Bill?
VISCOUNT BARRINGTON: My Lords, I think it is very relevant that we should know in this case that the public do not want words put in unless they know what they mean. If the noble Lord would prefer I should not read it out on this occasion, I should like to read it out on another.
LORD STONHAM: I have been listening with very great interest to the noble Viscount's speech, but I am concerned—indeed, I may have to speak on this particular Amendment myself—that his remarks should be relevant to the particular problem we are now considering.
VISCOUNT BARRINGTON: If that is so, I will gladly not read this opinion poll out now.
VISCOUNT DILHORNE: My Lords, may I ask this question? Is it suggested that an opinion poll as to whether or not the public who were consulted are in favour of these words being included in the Bill or not being included in the Bill, is irrelevant?
LORD STONHAM: No, my Lords, I was not suggesting that for one moment; but, with great respect, it seemed to me that a great deal that we have listened to with great attention was not strictly relevant to the subject we are now discussing.
VISCOUNT DILHORNE: My Lords—
LORD BYERS: My Lords, I must protest. Is it in order in this House when one noble Lord is making a speech for a debate suddenly to be carried on between two other noble Lords? It cannot be right.
VISCOUNT BARRINGTON: If that is so—and I am very happy it is so—I should like to apologise for having, as it appears, got off the subject on to what I think is the general issue of the seriousness of abortion. But I should like to

1449
refer to one paragraph which I think is relevant, because in these opinion polls it is very easy to ask wide questions, whereas this was confined entirely to the Amendments. The questions were: Should the Lords Amendments be, in your opinion—and these are only opinions—accepted or rejected? In both these there was a substantial majority for acceptance; and in the one I am going to deal with—the only one on this Amendment, the social clause—there was a larger majority of women. The question was: "The House of Lords deleted the provision that pregnancy might be terminated in the interest of other children in the family. Do you think the House of Commons should accept this Amendment or put back the provision that pregnancy may be terminated in the interests of other children in the family?" That may be a slanted question. I am the last person to suggest that a random opinion poll should influence us. I give the House these figures only because it has been represented that the public are chafing at the bit for us to delete these Amendments. In fact the answers showed that 40 per cent. said that the Amendment should be accepted, 29 per cent. said it should be put back and 31 per cent. said they did not know.
I think it is extremely important that we should know what this clause means and, quite honestly, from what the noble Lord, Lord Silkin, said I was unable to follow how, unless it is a social clause, this will help the Bill. If it is a social clause then I think it ought to be worded more clearly, because I believe it gives what I may call the "green light" to any doctor to do exactly what he likes. If he is in any doubt at all he can always say he did it in the interests of the other children. I have said more than I intended and I hope those of your Lordships who speak on this matter will keep much closer to the point. I feel we should know what these words mean. We have lawers and doctors in this House who can tell us whether, in their opinion, this provision helps the Bill or not. I apologise for having taken up so much of your Lordships' time.
9.4 p.m.
VISCOUNT DILHORNE: My Lords, I listened with interest to what the noble Lord, Lord Silkin, said. As I expected,
1450
he made a frank and fair statement of the position. One thing he made absolutely clear, if I understood him aright—and I hope he will correct me if I am wrong—was that the case of the woman who has had a large family and who has a large family, who is living in overcrowded conditions and who is unable to cope with another child, is dealt with under this Bill without the insertion of these words, because, if those are the conditions, there must be a risk of injury to her health and to her life. The noble Lord, Lord Silkin, if I understood him correctly, started his speech by saying that.
My Lords, I have been sent a copy of an opinion poll which says there is a large body of opinion in favour of abortion where the mother is unable to cope. In the first part of this subsection (1)(a) we are looking at the question of the mother and her condition, her ability, her health, both present and future, and having regard to her total environment. So the kinds of cases of which so much was made in Committee, and has been made again to-day, are, as the noble Lord, Lord Silkin, has admitted, covered by the existing words of the clause as it now stands.
LORD SILKIN: My Lords, since the noble Viscount, Lord Dilhorne, invites me to comment on what he said, I would say that he is taking my words too far. I wanted to be fair and say that the case of the mother who is going to be injuriously affected and whose health is at risk is covered, but I was dealing with cases where that is not so—
VISCOUNT DILHORNE: I was proposing to come to that.
LORD SILKIN: I was not assuming that in every case the health of the mother might be affected.
VISCOUNT DILHORNE: I listened carefully to the speech of the noble Lord, Lord Silkin, and I will come to the second part of it. But he began his speech (I am sure that he will not dispute this) by saying that in all those cases where the health of the mother was liable to be affected, where there was a risk because of the burden of an additional child when there was already overcrowding—the noble Lord nods his head—when there was more than the mother

1451
could cope with, the situation was already covered by the existing wording. But, my Lords, that deals with the case of inability to cope on the part of the mother. The question which we have to consider, surely, is whether some quite different criterion should be applied, quite independent of the health of the mother.
Then we had the noble Baroness. Lady Summerskill, who made a most impassioned speech, reminding us of conditions in the slums and all that. Clearly, the noble Lady wants abortion because of social conditions. The noble Lord, Lord Silkin, thought it wrong to describe the addition of these words as importing a social clause. I am not quite sure what is the precise effect of adding these words to the Bill, but I am quite sure of one thing: that they do not import all the social conditions, and the social conditions alone, that the noble Baroness, Lady Summerskill, sought to suggest.
I would ask the noble Lady to have regard to the terms of this Bill if these words were included. You have to consider whether the continuancy of the pregnancy involves risk of injury to the health, physical or mental of any existing children of the family.
BARONESS SUMMERSKILL: Hear, hear!
VISCOUNT DILHORNE: You have, therefore, to consider cause and effect. My Lords, when the noble Lady gave us a list of these conditions, and referred to cases where the family was so big that the wife was harassed, she was getting back to the first part of the clause where one is looking at the condition of the wife. I raised the question in Committee—I do not withdraw from it—that I still find it difficult to see how the "continuance of the pregnancy" can in fact cause "injury" —those are the words of the Bill—to the health of an existing child. The noble Lord, Lord Silkin, gave one example which, he said, occurred to him on the spur of the moment: that if there were two children of the family going to a clinic they would suffer if their mother could not take them there.
The noble Lady took the line that there would be cruelty to the existing children. This clause does not provide for abortion on the grounds of cruelty but
1452
on the grounds of risk of injury. Although cruelty may involve risk of injury, it does not necessarily follow. So I still say that if the noble Lady really wants a social clause, these words do not provide it. It is difficult to know whether they provide anything at all, but the real case which she wishes to make is, in my belief, covered by the Bill as it is.
My Lords, I hesitate to predict what may be the views of the most reverend Primate the Archbishop of Canterbury on this matter. At the Committee stage I drew attention to the remarkable fact that, for once, we were able to speak in agreement, and I hope that it will occur again. Before I spoke in the Committee stage there had been one other occasion, I remember, when the most reverend Primate had spoken for an Amendment and voted the other way. He has done that again to-day, and I hope that perhaps on this Amendment he will speak for the Amendment and vote against it.
LORD STONHAM: My Lords, a few moments ago I interrupted the noble Viscount, Lord Barrington, and if I then appeared to be partial and moving away from my neutral ground, I shall now endeavour to stick to my neutral position in referring to what the noble and learned Viscount, Lord Dilhorne, said. He concentrated on the Amendment to which we are addressing ourselves. He put three points to your Lordships. Paraphrasing what he said, I would point out that he first of all stated that the situation where the birth of another child could involve risk of damage to the life or health of the mother was covered in the Bill. With respect, I agree that it is covered in the Bill. The second point the noble and learned Viscount made was that we have to consider criteria quite independent of the health of the mother in considering this Amendment. We do. The third point was that he found it difficult to see how another pregnancy could affect the health of the existing children.
Keeping on a factual basis and not deserting the area of neutrality, I can see many cases where another pregnancy could affect the health of an existing child or children. An addition to the family could well reduce the mother's capacity to look after her existing children. That seems to be a manifest and reasonable proposition. There is also the possibility, though not in a great many cases, that

1453
an existing child requires special care from the mother—she might be a handicapped child—which it might not be possible for the mother to give if there was another child or where already difficult economic and social circumstances would be worsened by an addition to the family.
In considering this matter, and still keeping to the facts of the Amendment and of the Bill, it is right for me to point out that the provision proposed in the Amendment does not require a doctor to consider the effect on the child's health or require him to do an abortion on this ground. As I understand it, all that my noble friend is proposing in his Amendment is to enable the doctor or doctors to terminate a pregnancy if they are of opinion, formed in good faith, that the continuance of the pregnancy could adversely affect the health of the existing children. If they cannot form such an opinion, then clearly they could not justify an abortion on this particular ground with which we are concerned at the moment. On the other hand, as has been said a number of times since we started this discussion at 5 o'clock, in normal cases it is first of all the family doctor who knows the family, who will give the first opinion in this matter. There may be cases where the doctor's knowledge of the family circumstances enables him to form an opinion on the matter and where he might wish to take this particular consideration of the existing children of the family into account.
The issue to be decided is quite clear. It is whether to restrict the grounds for abortion under paragraph (a) to consideration of the woman's health alone, or whether to reinstate a provision allowing for termination where there is the separate risk of injury to the health of existing children. This is essentially a matter for the House. Those of your Lordships who are anxious for the law on abortion to be less restrictive than it is at present may feel it desirable to support this Amendment. I would add that it is thought in Scotland that the Bill without the reference to existing children would be narrower than the law in Scotland is at present.
9.17 p.m.
LORD CONESFORD: My Lords, the opposing views on these words are held so sincerely and are regarded as so im-
1454
portant that perhaps the House will allow somebody who takes the opposite view from that of the proposers of the Amendment to make clear why he does so, although he also spoke on the last occasion. I do not think anybody has yet emphasised what I regard as a vitally important point; namely, that the first of the words which it is proposed now to add is the word "or". Without these words, those who decide on an abortion have to consider the life and health of the mother; and they are medical men. Medical men are asked to make a decision about the patient, the person who would have this operation if it were decided upon.
These words introduce for the first time a wholly different conception. An abortion can be made legal under these words because an additional child is thought not to injure the mother in any way, but to injure an existing child. On the last occasion the noble Lord, Lord Soper, and I think others, welcomed these words because they believed in the social clause. They said that one ought to consider what is socially desirable in the home. If that were for the moment admitted, are we sure that the best people to judge that would be doctors, and doctors alone? Do doctors desire this duty to be put upon them?
The noble Lord, Lord Stonham, talked of the health of some existing child of the marriage in whose interests an abortion might be thought to be desirable. Let me put to the noble Lord a very simple question. Is he asserting that under this Bill, as it would stand with these words added, it would be compulsory for both doctors to examine the child whose health was alleged to be adversely affected or put at risk, or would it be sufficient to look at the home and ask the mother? My Lords, I do not believe that the Members of this House as a whole have any idea of the degree to which this Bill will be extended by the addition of these words. Nor have they any idea of the number of abortions that could be justified on the same woman repeatedly if these words were admitted. Do we really think that repeated abortions are desirable, the best or, indeed, the only remedy for what may be the poverty of the home? When I think of the comparative humanity of some pre-Christian nations, who even exposed infants if they

1455
were not wanted, I think their humanity compares favourably with some of the things that will be possible if these words were added to the Bill and literally interpreted.
It is so easy to add such words as, "or any children of the marriage", and think by that you are calling general attention to the home, and showing sympathy with the conditions of that home. You are doing something that goes far beyond that. You are saying that a human embryo may be destroyed because some existing child of the marriage could be adversely affected, presumably in health. I think most people assume that under this clause it would not be necessary for the doctors even to examine that child—anyhow I think that would be very astonishing—or, indeed, to inquire whether there were other remedies available, such as financial help forthcoming from other sources for the existing child. There are many matters that may affect the welfare of the other children, but not, perhaps, matters of which doctors and doctors alone are necessarily the best judges.
LORD SILKIN: My Lords, why does the noble Lord keep on saying that doctors are not the best judges? Surely, the criterion is the effect on the health of the existing children? Surely, doctors are the best judges of the health of existing children?
LORD CONESFORD: My Lords, I very much doubt whether they are the best judges of the health of the existing children unless, in any event, they examine the existing children. I do not know whether the noble Lord, Lord Silkin, considers that when these words are added to the Bill it would be just as important that the doctors should give a medical examination of the same thoroughness to each child as they give to the mother. If he is of that opinion—and I expect he is—I think it would be very desirable to make that quite clear in the Bill, because I do not believe that is the impression of the medical profession. I have already quoted doctors who have signed a letter to The Times and made quite clear their view of the importance to the Bill of the deletion of the words.
BARONESS SUMMERSKILL: My Lords, may I remind the noble Lord of
1456
one point. All these families—and we are thinking of the slum families—are on the medical list of the doctor we are talking about, and the children would be his patients of his medical list.
LORD CONESFORD: That might be or might not be. I appreciate the enthusiasm, honesty and humanity of the noble Baroness, but I hope she realises the nature and extent of the change in the law that the addition of these words makes.
LORD BYERS: My Lords, may I ask the noble Lord a question on this point? Several times he has referred to "any child of the marriage". These are not the words we are debating. The Amendment talks about children of the family; and it is the wellbeing of the family which is at stake.
LORD CONESFORD: Any child of the marriage presumably belongs to the family.
LORD BYERS: There are many others. There are adopted children. It is the family which is at stake.
LORD CONESFORD: My Lords, I am not a very good lawyer, but I am inclined to think I am as good as the noble Lord who interrupted me. But I do not think I have interpreted the words too widely. I gladly use the actual words of the Amendment:
"or any existing children of her family".
I certainly do not wish to misrepresent those words. But I do want to make absolutely clear to the House that they are enabling the destruction of an embryo, although the health and welfare of the mother may not be affected at all. The doctors are being specifically told that they can do this if, instead of the mother being affected, the persons affected are:
"any existing children of the family".
I think that is a tremendous addition. There are many who have enormous religious objections to this. I am not going to say anything about that. That is not my objection. My objection is that we are making a vastly important change in the criminal law which ought to concern every Government—I am shocked by the Government's neutrality—a vastly important change in the criminal law without people considering

1457
the nature of that change and the amount of the extension we are giving to permitted destruction of embryos.
I would only say one last thing, about opinion polls. The opinion polls, I think, have produced already a great many declarations connected with abortion, most of which I think were quite foreseeable, and I believe that all the voting was completely honest. I am very sorry indeed that one question has not been asked, to which I should have been interested to see what people replied. It has been asserted in many quarters that this is not a matter that concerns men at all; that women, and the potential mother, above all, are the overwhelmingly important people concerned. What I should have liked to see put in one of these opinion polls is: "Do you think that if the mother desires an abortion, and the doctors agree to perform it, that should be immune from the criminal law?" It is very possible that that would receive an affirmative vote. But that is not this Bill. Nobody is proposing that. A Bill that simply enacted that would at least be a perfectly honest and straightforward Bill. What I object to is putting words in a Bill under which, if the mother takes enough trouble, she can find doctors who will perform a legal abortion; but this is concealed under safeguards, under alleged safeguards, which on examination prove to be no safeguards. My Lords, I expect that the House is anxious to come to a decision. I hope that noble Lords will not mind one who opposes the addition of the words giving his reasons.
9.30 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, my noble and learned friend Lord Dilhorne chaffed me with changing my mind on a former Amendment. I am always ready to change my mind in the light of new evidence or new facts in answer to questions put. In the debate before dinner I put certain questions, asking for information about matters which are obscure to myself and I believe to others, and the information forthcoming sufficed to tilt the balance of argument already in my mind. It was a delicate and difficult balance of argument as regards the pros and cons. In this case, I am ready to hear anything
1458
to cause one to change one's mind, but I have heard nothing so far to lead me to think that it would be right for your Lordships to reverse the decision on this issue which was made a few months ago.
What we have had to-night is the very moving plea from the noble Baroness, who is a doctor, about the terrible conditions in certain homes, which has certainly evoked the compassion and concern of all of us; but I felt that the noble Baroness was really putting the case for education in, and the practice of, methods of birth control and family planning. That seemed to me to be the upshot of the case which she was putting. Just because she, as a doctor, put the case in such broad social terms it seems to me that the issue was really this: that where there were conditions which provided a strong case for education in the use of birth control, there we had the conditions for the legalising of abortion. That seemed to me to be the issue; and I believe it would be wrong, on that issue, to reverse the decision already made.
I appreciate very much the pleas made, not least by doctors, that it is important to regard the family as a unit and that a doctor, when judging health, is judging the health of the whole family in its totality. I accept that, but I believe it is met by the provision that there may be an abortion in certain cases, on the advice of two doctors, in connection with the mother's health in relation to her total environment. With that provision, I cannot think that if our consciences lead us to adhere to our former decision on this issue the Bill will be wrecked. I do not believe that the Bill will be wrecked. I believe it will be a rather better Bill.
9.33 p.m.
THE MARQUESS OF SALISBURY: My Lords, I imagine that there is no-one in this House to-night who does not realise that with this Amendment we have come to what Sir Winston Churchill used to call "the crunch". It is one, though the noble Lord, Lord Silkin, rather avoided it, that I think raises far wider issues than any other that we have discussed, or are likely to discuss, this evening. I feel I must at any rate mention this. For, let us make no mistake, the step which the noble Lord, Lord Silkin, and his friends in all sincerity ask us to take is a very far-reaching one, and, I believe, a very dangerous one.

1459
It is one thing to say that abortion is justified because the birth of a child would involve a risk to the physical and mental health of the mother. That is a question of medical opinion on which doctors are, presumably, fully qualified to speak. But the decision to allow abortion purely on social grounds is, I feel, a very different thing. Who is qualified to judge what would endanger the physical and mental health of one or more of the existing children? In spite of what the noble Lord, Lord Silkin, said just now, I think he would be a very self-confident man, doctor or not a doctor, who felt he could pontificate on that.
Thirdly, there is the question, which has been mentioned so often tonight, of whether abortion should be made legal where a doctor considers a pregnant woman unable to cope with any more children. That is the one which bears, I think, most directly on this Amendment. It is the case that was mentioned by the noble Baroness, Lady Summer-skill, at Committee stage of this Bill. I, like my noble and learned friend Lord Dilhorne, listened to what the noble Baroness said this evening. She gave a very moving example of the conditions which exist in working class districts and which she feels could be alleviated by the passage of this Amendment. I feel that what she said is clearly an argument for facilitating birth control, family planning or whatever you like to call it, and, perhaps more than anything, better housing. But even so, does the case which she pleaded so eloquently justify the killing of what is in plain words an already living thing? It is a case that I put very briefly in August and I have seen no reason to change my view about it. That, surely, is to put on the doctor who is placed in that position, if he has any conscience, a most appalling responsibility—perhaps the most appalling that anyone could be asked to shoulder.
Nor is the case she puts the only one to which this provision, if it is returned to its original state by the Amendment, could apply. Far from it. The wording which is now proposed by the noble Lord, Lord Silkin, embraces far wider possibilities than this, possibilities which have never been mentioned in this debate. If I may take one case; a mother who already has legitimate children, children
1460
perhaps almost of teenage, might take a lover and become pregnant. Your Lordships may say that these things ought not to happen, but we all know they do, and the appearance of such a cuckoo in the nest, especially if the husband was likely to make a sharp differentiation between it and his other children, might well, in the view of a doctor or doctors, be liable to have a deplorable effect on the physical or mental health of one or more of the older children. The doctor might therefore think it absolutely right under this subsection, if it were restored to its original form, to advise an abortion. Indeed, it is so widely drawn that it could, I think, as drafted legalise the abortion of any unborn illegitimate children where there were already other legitimate children and where the doctor or doctors concerned happened to take the view which I have just described. And there must be many other cases, borderline cases, of the same kind.
Nor would one necessarily get (and this is, I think, an important point) under the subsection, as amended, a uniformity of view as between one set of doctors and another; and a law which can be interpreted in different ways, and even conflicting ways, by different people is surely the worst of all forms of law.
I know I may be told that if the provision is not reinserted there will be a vast increase in what is often called "back-street abortion". Some of us, I must say, are getting rather weary of that argument. It has always been used to justify what has previously been regarded as unjustifiable. When the subject of homosexuality was before your Lordships not long ago we were told that unless we passed a Bill to legalise homosexuality between adults we should only be encouraging what might be described as "back-street homosexuality". Again, when some years ago the subject of betting was before your Lordships we were told that unless we passed a Bill to legalise betting shops there would be a vast increase in back-street betting. We did pass the Act, and what has been the result? Far more people bet than ever before. By legalising an evil one does not necessarily cure it; one may very easily facilitate it.
Now, my Lords, I am going to turn for a few moments to more controversial

1461
ground, to what may be termed the constitutional aspect of this controversy, not because the noble Lord, Lord Silkin, has raised it to-night in this House, but because at an earlier date he has discussed it with me in the public Press, and because the newspapers seem to be full of this special aspect in this particular connection. As I understand it, from what he said in that correspondence, the noble Lord holds the view that under existing legislation constitutionally your Lordships are bound to accept any decision of the House of Commons, whether in the form of a Government or a Private Member's Bill.
I hope I am not misrepresenting him when I say that he points out that no differentiation is made between the two types of Bill in the two latest Parliament Acts. I believe that to be true; that may be technically correct. But surely this is only because at that time it never occurred to anyone that the provisions of the Parliament Act could be used to force through the passage of a Private Member's Bill under the Parliament Act. What concerned Parliament at that time—I know this well, because I was not only leading the Opposition but I was in close touch with the leaders of the Government at that period—was that your Lordships' House should not too long be able to delay the passage of Government legislation. That was the whole issue. The question of Private Members' Bills never appeared and never, as it were, put its head above water.
Lord Silkin made great play in his letters with the argument that the Bill was passed by the elected representatives of the people. He said nothing about the people themselves, what they would wish. And how does he know, except by a single poll, which has already been mentioned and which was based on most carefully slanted questions, what the people do want? Moreover, may I say to him with complete courtesy, that if he would for a moment turn his eyes and look not only at those who support the Bill, but at those who do not support it, what would he find? I think he would get a quite different impression. Indeed, he would find that it has not official support from any of the Parties in the State: neither the Labour Party, who are the Government—I may say that the Labour
1462
Party this afternoon have pointedly dissociated themselves from it—nor the Conservative Party, who are the official Opposition; nor, so far as I know, the Liberal Party, unless they tell me I am wrong.
He would find, too, that it has definitely against it the Church of England and the Church of Rome, and, as was pointed out by the noble Marquess, Lord Lothian, in an important letter to the Daily Telegraph not long ago, the majority of the medical profession in this House, and quite possibly in the country, and a considerable proportion of the legal profession.
There must even be doubts, I think, how far the House of Commons themselves as a whole feel about it, because as Lord Lothian pointed out, again in the same letter which he wrote, less than half the Members of that House voted at all on the Third Reading of the Bill. That does not seem to show any wild enthusiasm in its favour. Indeed, even the noble Lord, Lord Silkin, himself apparently does not now claim—this, I think, was the most valuable admission that I got from him in my correspondence in the Daily Telegraph—that the majority of the country are in favour of the Bill. All he says now is:
"There is no doubt that it has a great measure of popular support in the country",
which is a very different thing. And even that, it seems (as I once heard a delegate say about a proposal in the days of the old League of Nations) is a "Thèse au moins discutable".
How very unconvincing, in such circumstances, is this great parade that this is a test case for democracy! On the contrary, if we had a referendum on this question—and I sometimes wonder whether there is not a strong case for having a referendum on such issues as this, issues which have the official support of no political Party and which have not been before the electorate at a General Election—I believe it is equally likely that it would be decisively defeated. In such circumstances, how is it to be suggested that the House of Lords, like the House of Commons, has no right to vote according to their consciences?
The noble Lord, Lord Silkin, ended both his letters to the Daily Telegraph with something in the nature of threats

1463
against the House of Lords if they did not toe this particular line. To insist upon our Amendments, he said,
"against the Hill of the Commons, surely involves a constitutional issue which may have far reaching effects on the House of Lords."
That, surely, must be regarded in Parliamentary language as a definite threat. But I hardly feel that this, or any other Government, would be in a very strong position in further reducing the powers of your Lordships' House because it opposed a particular provision in a Private Member's Bill, a provision which they themselves had decided, for whatever reason, not officially to support. On the contrary, to give way to threats of that kind would inflict rather greater injury on the position of the House of Lords in this country than any vote according to our consciences could do. I beg your Lordships' pardon for having taken so long. I would say, in conclusion, that I hope that this House will be quite firm in resisting arguments of that kind, and for that reason alone, apart from any others which have been urged in this debate, will stand firmly by the position which it took up on July 26 last.
LORD CARRINGTON: My Lords, I have not spoken very often in this debate, and I wonder whether I might follow on something which was said by my noble friend Lord Salisbury. You will have read in the newspapers over the week-end and this morning about the possibility of a constitutional crisis arising from action which your Lordships may take this evening over this Bill. I know which way I shall vote on this Amendment; I have no idea which way your Lordships will vote and do not in any way seek to influence you. All I seek to do is to hope you will not vote because of the fear of a constitutional crisis. I do not think it should or could arise on this Bill.
We have laid down over the years a set of rules for your Lordships when a Labour Government are in power and when, as in this House, we have an overwhelming majority for the Conservative Party. The rules which we have laid down are that your Lordships should not insist on your opposition to a Bill which the Government introduce and for which they have a mandate. I think that all
1464
your Lordships on both sides of the House would agree that over these last three years the Opposition, with an enormous majority in this House, have behaved with great moderation about a lot of legislation which they most particularly disliked, but our action has been on Bills on which the Government have a mandate and which are Government Bills. That is not the case on this particular Bill: There is no mandate for this Bill which has been introduced into this House; it is a Private Member's Bill It has been introduced by a member of a Party quite different from that of the Government. It is a Bill on which the noble Earl, the Leader of the House, said only this afternoon the Government are neutral, and I took him up on that point when he said it. There can be no question that this is a Bill on which the views of the electorate are known, because the electorate have never been asked their views.
It would surely be absurd to expect the most reverend Primate not to vote according to his conscience because he thought there was to be a constitutional crisis as a result of it. The most reverend Primate can change his mind as a result of the arguments, and I respect him for doing so, but I would not respect him if he did not vote according to his conscience; no more would I respect the noble Earl the Leader of the House, who I know is violently opposed to this Bill, and who I hope would not vote any differently from his conscience because of the threats of constitutional crisis. It seems to me that if ever there was a Bill in this House on which your Lordships should vote according to your consciences, this is it, and there should be no threats by the newspapers or by the Government or by anybody else which should deter us from doing what we think is right.
9.52 p.m.
LORD BYERS: My Lords, since the constitutional issue has been raised, I should like to follow the Leader of the Conservative Party in this House on this question. I did not intend to intervene, and I should not have done so if it had not been for the speech of the most reverend Primate and the noble Marquess, Lord Salisbury. We have heard from the noble Lord, Lord Carrington, of the rules which have been laid down by the

1465
Conservative Party as to the conduct of business in this House, and we have been assured that, because this is a Private Member's Bill coming up from the House of Commons to this place, no constitutional crisis could arise. I am not at all sure about this. I would say to the noble Lord that as a Private Member in another place I, in common with all other Private Members, was extremely jealous of our Private Members' rights.
There are very few opportunities indeed in the other House for Private Members to initiate reforming legislation, and when they decide to do so on a burning social question such as this, and when on a free vote they make what I would describe as a progressive decision, it is courting disaster for this House to flout the freely-taken decision of the Private Members of another place. It is a much easier thing to flout a Government who do not have a majority behind them and their Whips, and when you have a Private Member's Bill on a burning question of the day this House must remember its responsibilities. It is inviting, not action from the Government, but pressure for their rights from 500 Members in the House of Commons, whatever they believe to be the merits of the Bill itself.
A NOBLE LORD: Rubbish!
LORD BYERS: My Lords, you may say "rubbish", but "rubbish" and "referenda" are the refuges of people who are going for defeat if they are not very careful. I would not suggest to the House that it takes lightly the advice given by the noble Lord, Lord Carrington, for whom I have the greatest respect. But these rules made by Conservatives, and some of the Right Wing speeches that we have heard in this House tonight, are going to set afire a fuse in another place unless we behave with Parliamentary responsibility.
I should like to say to the most reverend Primate that on this question one cannot just turn aside these matters of principle, and say that everything is a question of better education on contraception and all the rest of it. There are great issues here, the well-being of the family as a whole. We do not seem to realise that we are dealing here with one of the most important burning questions
1466
of the day, and we should treat it as such.
LORD STONHAM: My Lords, if I may, by leave of the House, say two words on this point, at every stage of the Bill I have emphasised that the attitude of the Government is neutral; that Ministers or supporters of the Government were free to vote exactly as they wished. Not one word has been said to-day by any Minister or, so far as I am aware, by any supporter of the Government, on the question of the constitutional issue. I have made only two interventions so far to-day, and they have both been to plead with your Lordships to keep to the point and speak to the Amendment. May I remind your Lordships that the Amendment which we are now considering is that we add the words "or any existing children of her family", and may I please ask your co-operation in this matter?
I do not believe that on this particular issue the people of this country are terribly concerned about the constitutional issue. But I do believe—and here I am sticking to my neutrality—that a great majority of the people in this House and in this country want the issue of our discussions to be a Bill, and a viable Bill; and I believe the people of this country would think that Parliament had done a very poor job if the outcome of our discussions was nothing. They would think that we had wasted our time; and I would hope, my Lords, that we would proceed in a spirit of co-operation.
One of the weekly newspapers said last Friday:
"Abortion law reform is in the balance, and it will be wrecked unless the House of Lords shows common sense and compassion."
Common sense and compassion, my Lords, are two commodities in which this House is very rich, and I hope that we shall try now to proceed on that basis and that some of the speeches which have been written but have not found a place in our debate may well, as have many good speeches in the past, find a place in discreet darkness.
LORD FERRIER: My Lords, what the noble Lord, Lord Stonham, has just said leads straight into the few words that I want to say, reminding your Lordships that this Bill applies to Scotland. He alone has mentioned the fact that the addition of these words—and it is these

1467
words that we are discussing; I agree with him an hundredfold—is considered important in regard to the relation between the law as it stands in Scotland to-day and the Bill that is now before your Lordships' House.
It only remains for me to say one word in continuation. I agree entirely with what the noble and learned Viscount, Lord Dilhorne, has said: that this clause to which we propose to add these words may in itself well cover the position. And, though the noble Marquess did not mention the Church of Scotland, I can say that such information as I have got in the corridors there indicates that they feel very much as the noble and learned Viscount does, that the clause without these words is adequate. This runs slightly counter to what the noble Lord, Lord Stonham, has said about the law—and I agree with him. But if the clause without these words is good enough, then it is a social clause—and this is the point I want to make. We are going to divide on these words. It is these words on which we are going to divide. They are not a social clause: they are words being added to or subtracted from a clause which is already a social one. The decision in that respect has been made.
9.57 p.m.
LORD MOLSON: My Lords, I am confident that your Lordships will not allow yourselves to be in any way influenced in the vote that you are going to give on this small but very important Amendment by any discussions of broad constitutional issues. There is going to be a Third Reading of this Bill, and I can only assume that those noble Lords who have discussed the constitutional aspect do not intend to take part in the Third Reading debate. In reply to the noble Lord, Lord Byers, I would say only this: that when he waxed eloquent about the pioneering of the House of Commons in this great and vital social issue he should have borne in mind that the pioneer who first had the courage to raise this controversial and distasteful subject was the noble Lord, Lord Silkin—
LORD BYERS: My Lords, I am more than willing to accept that.
LORD MOLSON: I will just finish what I am saying, and then I will give
1468
way. And your Lordships passed two Bills dealing with this matter before the House of Commons thought fit to deal with it. I promised to give way to the noble Lord, if he wants to interrupt me.
LORD BYERS: I had already interrupted the noble Lord, who had not heard me. I said that I am perfectly willing and most anxious to accept that, and pay a tribute to Lord Silkin's work in this respect.
LORD MOLSON: My Lords, I am sure you are anxious to proceed to a Division, and I will try merely to summarise our position in a very few words. I wholly accept what has been said by the noble Marquess, Lord Salisbury, that this is the crunch of the Bill. There was widespread agreement that there was need for a Bill to codify what might be called the rule of law in the Bourne case; but it was intended that this Bill should go further than the existing law and that it should extend its compassion to other people beyond the mother and other matters than her health. We have always regarded it as being essential that it should go beyond the rule in the Bourne case and that it should deal with defective children; and we can see no logical reason why it should not take into account the happiness and welfare of the existing family.
The noble Baroness, Lady Summerskill, has dealt with the problems as they arise. The most reverend Primate indicated that once again he might be prepared to change his mind if arguments were adduced to convince him. He said that he was fully aware of the great social problems which have been described in speeches this afternoon. He said there was need for further education in the matter of family planning; but, ex hypothesi, in these cases family planning has not, in fact, taken place. My Lords, when a great ill is likely to happen, when great suffering is likely to be incurred, is there anything wrong in a further step being taken in the legalising of abortion in the interests of the existing family as a whole?
Of course, what he has said is a counsel of perfection; we are trying to legislate at the present time for evils which have arisen and are arising and cannot

1469
now be averted. It is because we believe that this great social measure should extend beyond the health and welfare of the mother, beyond the question of defective unborn children, that it should extend to the general welfare of the family, that we ask your Lordships, after considering this matter again, to revise your
decision as you have already done in another matter this afternoon.
10.2 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 86 Not-Contents, 69.

CONTENTS

Addison, V.

Goodman, L.

Plummer, Bs.

Ailwyn, L.

Greenway, L.

Ponsonby of Shulbrede, L.

Annan, L.

Hall, V.

Popplewell, L.

Asquith of Yarnbury, Bs.

Harvey of Tasburgh, L.

Reay, L.

Auckland, L.

Henderson, L.

Redesdale, L.

Boothby, L.

Henley, L.

Robbins, L.

Bowles, L.

Hilton of Upton, L.

Rowley, L.

Brockway, L.

Hughes, L.

Royle, L. [Teller.]

Buckinghamshire, E.

Huntingdon, E.

Rusholme, L.

Burden, L.

Hurcomb, L.

Selkirk, E.

Burton of Coventry, Bs.

Lambert, V.

Serota, Bs.

Byers, L.

Leatherland, L. [Teller.]

Shackleton, L.

Campbell of Eskan, L.

Listowel, E.

Sherfield, L.

Champion, L.

Llewelyn-Davies, L.

Silkin, L.

Chorley, L.

Lloyd of Hampstead, L.

Sorensen, L.

Collison, L.

McCorquodale of Newton, L.

Stocks, Bs.

Cranbrook, E.

Maelor, L.

Stonham, L.

Darwen, L.

Marks of Broughton, L.

Strabolgi, L.

Dinevor, L.

Merrivale, L.

Strathcarron, L.

Donovan, L.

Milverton, L.

Summerskill, Bs.

Durham, LBp.

Mitchison, L.

Swanborough, Bs.

Elliot of Harwood, Bs.

Molson, L.

Swaythling, L.

Falkland, V.

Monson, L.

Taylor of Mansfield, L.

Ferrier, L.

Mountevans, L.

Terrington, L.

Fisher, L.

Moyne, L.

Teynham, L.

Fraser of North Cape, L.

Moynihan, L.

Vernon, L.

Gardiner, L. (L. Chancellor.)

Noel-Buxton, L.

Wade, L.

Gifford, L.

Norwich, V.

Walston, L.

Peddie, L.

Winterbottom, L.

NOT-CONTENTS

Barrington, V. [Teller.]

Exeter, LBp.

Perth, E.

Berkeley, Bs.

Ferrers, E.

Robertson of Oakridge, L.

Beswick, L.

Fortescue, E.

Rowallan, L.

Brecon, L.

Grantchester, L.

St. Aldwyn, E.

Bristol, LBp.

Grenfell, L.

St. Helens, L.

Brock, L.

Gridley, L.

St. Just, L.

Buckton, L.

Grimston of Westbury, L.

St. Oswald, L.

Caldecote, V.

Haddington E.

Salisbury, M.

Canterbury, LAbp.

Hodson, L.

Sandford, L.

Carnock, L.

Horsbrugh, Bs.

Sandys, L.

Carrington, L.

Hylton-Foster, Bs.

Sempill, Ly.

Clifford of Chudleigh, L.

Iddesleigh, E.

Stamp, L.

Colville of Culross, V.

Inglewood, L.

Strang, L.

Conesford, L. [Teller.]

Jellicoe, E.

Strange of Knokin, Bs.

Cork and Orrery, E.

Kennet, L.

Stuart of Findhorn, V.

Craigavon, V.

Longford, E. (L. Privy Seal.)

Thurlow, L.

Craigmyle, L.

Lothian, M.

Truro, LBp.

Daventry, V.

Lytton, E.

Wakefield of Kendal, L.

Dilhorne, V.

Mills, V.

Waverley, V.

Drumalbyn, L.

Monckton of Brenchley, V.

Winchester, LBp.

Dundee, E.

Mowbray and Stourton, L.

Wolverton, L.

Ellenborough, L.

Norwich, LBp.

Wootton of Abinger, Bs.

Emmet of Amberley, Bs.

Oakshott, L.

Ypres, E.

Resolved in the affirmative, and Amendment agreed to accordingly.

10.14 p.m.
VISCOUNT DILHORNE: My Lords, I have been asked by the noble and learned Lord, Lord Parker of Waddington, to move Amendment No. 5 standing in his name. We have already discussed it, when we discussed Amendments Nos. 1 and 3, and therefore there is no need for me to expand the reasons which actuated my noble and learned friend to put it down. There is no need because the noble Lord, Lord Silkin, said then, in advance, that he was prepared to accept the Amendment, and I would thank him in advance for doing so. I beg to move.
Amendment moved—
Page 1, line 15, after ("woman") insert ("greater than if the pregnancy were terminated").—(Viscount Dilhorne.)
BARONESS SUMMERSKILL: My Lords, when my noble friend Lord Silkin hastily said that he would accept this Amendment, the noble and learned Lord, Lord Parker of Waddington, said that he had put this Amendment on the Order Paper because he preferred it to the two words, "serious" and "substantial". I should like the noble and learned Viscount, Lord Dilhorne, who is moving this on behalf of the noble and learned Lord, to explain to me something which I find a little difficult to understand. If it is said that the risk of continued pregnancy is greater than the termination of pregnancy, do we not assume that abortion has a very low mortality rate, and, therefore, the condition that the risk, whatever it may be and however big, must be greater than the abortion? Therefore, is it not superfluous?
VISCOUNT DILHORNE: My Lords, I think the answer to the noble Baroness's question lies in the speech that she made earlier in the course of the Report stage when she said that in every pregnancy there was a risk to health, mental and physical. This Amendment, which the noble Lord, Lord Silkin, said he would accept, is one that requires some criteria and some guidance. It will be for the medical profession, and for the noble
1472
Baroness if she is called upon to do so, to assess whether the risks involved in the pregnancy are greater than in the termination. It is quite a simple Amendment.
BARONESS SUMMERSKILL: My Lords, I was being absolutely logical. I was only inviting the noble and learned Viscount, with his great legal knowledge, to support me. If the risk of an abortion is practically nil, then the other risks must be higher. Therefore, it seems to me that this is superfluous.
VISCOUNT DILHORNE: My Lords, I think there is a good deal of medical opinion which does not regard the risk of abortion as practically nil.
VISCOUNT WAVERLEY: My Lords, the 1964 figures of the Registrar General showed, I think, that the risk of abortion either by curettage in the first 12 weeks or by hysterotomy was four times that of pregnancy carried on the term.
BARONESS SUMMERSKILL: What are the figures the noble Viscount has taken? The only figures he can have at hand are those taken from the hospitals. The women who went into the hospitals for an abortion may have been suffering from some abnormal condition. The abortions we are talking about are on women who are healthy and are going to have a normal abortion.
LORD MOLSON: My Lords, are we not on the Report stage and are not Peers limited to one speech?
SEVERAL NOBLE LORDS: Hear, hear!
On Question, Amendment agreed to.
LORD SILKIN: My Lords, this Amendment is preparatory to Amendment No. 9. I shall explain Amendment No. 9 when we reach it, but I would ask noble Lords to accept this Amendment pending my moving No. 9. I beg to move.
Amendment moved—
Page 1, line 15, leave out from ("woman") to ("or") in line 19.—(Lord Silkin.)
On Question, Amendment agreed to.
VISCOUNT DILHORNEmoved, in subsection (1)(b), to leave out
"there is a substantial risk"
and insert
"it is more likely than not".
The noble and learned Viscount said: I suspect that this is the Amendment which the noble Lord, Lord Silkin, accused me of moving in the Committee stage and of dividing the Committee upon. It is quite true that it was called in the Committee stage and I should like to remind the House of what I then said. I 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'."—[OFFICIAL REPORT, col. 1065, 26th July,
1967.]
LORD SILKIN: My Lords, may I say at this late hour that I apologise to the noble and learned Viscount. I had in mind a totally different Amendment, not this one.
VISCOUNT DILHORNE: My Lords, I accept the noble Lord's apology, but I have not put down any Amendment for the Report stage or for the Third Reading which we discussed and divided upon in Committee. I am glad the record has been put straight on that matter. Even at this late hour, while I feel very tempted to postpone it, if possible, to an earlier hour at some other time, I think it necessary to ask your Lordships to consider these words in the Bill with some care. I have been one of those who have taken the view that it should be a ground for lawful abortion if, to use language rather loosely, the prospects were that when a child was born it would be, if you like, so grossly deformed that it could not possibly enjoy life or, because of its mental incapacity, could not really be regarded as approaching the life of a normal human being.
I have always been in favour, in principle, of including something like paragraph (b) in the Bill. As we are drafting something which it is hoped will become law, it is extremely important that we should be careful about the words we use. To take this question of the degree of risk, I think there must be pressure to abort a woman because of the physical or mental abnormalities of the child to be born, and we ought to be
1474
careful to consider what degree of risk—and I agree you cannot define it precisely—ought to be present before that can be done. There may be some who say: "Yes, if there is one chance in ten of that child being born suffering from such physical or mental abnormalities the fœtus should be destroyed". Surely that is too great a risk, in the sense that you might be destroying nine perfectly normal lives on the chance that one might be seriously handicapped, mentally or physically.
I have been thinking about this matter a good deal. I do not want the clause to be too narrow, but I also do not want to have it too wide. It seems to me that one can really justify an abortion on this ground only where it is more likely than not that the child, if born, will suffer from such abnormalities. One must remember that this clause comes into play only where the woman's mental or physical health and where the existing family will not be affected by birth of a child of this kind. This is to cover cases which do not come within paragraph (a).
I would say myself you really must put some words in to give guidance here. It is not enough to say that the risk must be substantial. You must give some indication of the degree of risk. I know my noble and learned friend Lord Conesford does not like, and will probably make a great speech about, the words, "more likely than not" as being bad English, and he will possibly mention other grounds as well. I think it expresses the idea I want to see here: that the chances are in favour of a child's being born with these abnormalities. Then—and only then—I think it would be justifiable to terminate the pregnancy. I beg to move.
Amendment moved—
Page 1, line 20, leave out ("there is a substantial risk") and insert ("it is more likely than not").—(Viscount Dilhorne.)
10.25 p.m.
LORD SILKIN: My Lords, I hope that your Lordships will not accept this Amendment. I think that nearly every one of us is anxious that where there is a substantial chance—I think those are the words in the Bill—of a child being born in the condition which we have discussed from time to time, it should

1475
be possible for two doctors to permit of an abortion. They will be the judge of what is a substantial risk.
Incidentally, those are words which, in another context, the noble and learned Viscount wanted to introduce. Therefore, he himself cannot object to the term "substantial". If he thinks it is difficult for a doctor to define what is "substantial", he himself is asking us to insert those words in another context. But, surely, doctors can judge what is a substantial risk without its being put into mathematical terms. If, as he wants, it has to be more likely than not, then I should think that in no case could a doctor say it is more likely than not that a child is going to be born deformed. I am given to understand that, even where a mother has given birth to several deformed children and she is pregnant with a further child, it is still not possible to say that it is more likely than not that the next child is going to be equally deformed. So in effect, although the noble and learned Viscount is saying that he is in favour of this provision, by his words he would make it impossible for this to come actually into effect.
I think we can safely leave it to two doctors, who would examine the pregnant woman, would know her family history, and would know her antecedents. If she were claiming an abortion on the ground that there was likely to be an abnormal child born the doctors would surely want to know a good deal more about it, and would not merely take her word for it, before they agreed to an abortion. I think the wisest course regarding the use of the term "substantial"—there has to be a substantial risk—is that we should leave it as it is and trust the doctors to come to the right decision.
10.28 p.m.
VISCOUNT WAVERLEY: My Lords, I am a little troubled about this clause, and I should like to tell you why. It is that it seems to me to be far too exclusive. I am aware of only five medical circumstances where the statistical risk to the fœtus is more than 50/50. Here are the circumstances. First, maternal rubella in the first six weeks. But rubella will soon be preventable by maternal immunisation. Secondly, certain blood group incompati-
1476
bilities between husband and wife leading to rhesus factor difficulties; but this, too, should become preventable, and soon, we hope, by maternal immunisation.
Thirdly, disasters of the thalidomide type. But the Committee on Drug Safety should prevent such a calamity in the future. Fourthly, the extremely improbable contingency of a haemophiliac woman—and this is practically nonexistent—happening to marry a haemophiliac man and happening to have a male child. Fifthly and finally, Mongolism, which is potentially diagnosable with absolute certainty by amniotic examination—examination of the fluid in which the fœoetus floats. Thus, there remain really only two eventualities which, so far as we know, will persist. There is the extreme unlikelihood of two haemophiliacs marrying—so contrary to all reasonable expectation as to be discounted—and Mongolism. For practical purposes we are left with Mongolism alone.
I realise that if this Amendment is negatived the present genetic clause will stand, and I shall personally regret this very much; I voted against it in Committee. But I cannot really accept that there should be a clause in a Bill devoted for practical purposes to one particular genetic mishap.
LORD CONESFORD: My Lords, with reluctance but without any hesitation I feel bound to differ from my noble and learned friend Lord Dilhorne on the merit of this Amendment and to support the noble Lord, Lord Silk in. When this paragraph (b) was considered in Committee it appeared that there were genuine doubts about whether there should be this independent ground at all, and those doubts have just been repeated by the noble Viscount, Lord Waverley. But the present Amendment accepts that this shall be a separate ground on which an abortion can be justified. Therefore all that we have to consider is whether the words in the Bill as it stands or the words proposed by my noble and learned friend are the better. I assure my noble and learned friend that my objection is not merely to the curious English. My doubt is a quite different one. I want to know what it means. When you say "it is more likely than not" do you simply mean,

1477
"it is likely"? I think that that is what is meant, and, if so, it is definitely better to say so.
I am anxious that the words which we leave in the Bill should give some guidance to the medical profession about what is meant, and some guidance to the courts in the event of cases coming before them. If the wording, "it is more likely than not" simply means "it is probable" then I think that is what should be said: because, of course, the courts do consider from time to time, and juries are instructed to consider, such things as "probable consequences", and so on. "More likely than not" suggests a sort of numerical test of chances, and in fact the noble Viscount has just given us some examples from his medical knowledge of cases in which one can make an estimate of what the chances are.
I think the noble Lord, Lord Silkin, is right in saying that, if we have this ground at all as a separate ground on which abortion can be legalised, we must have some test that can be fairly easily interpreted, both by the doctors and by the courts. I myself think that to demand that the probability should be more than 50 per cent. is going too far. The case of German measles (I think rubella is the medical term) was mentioned, and hope has been expressed that ultimately rubella may not have the consequences which at present it has. But that is no argument against the clause as it stands in the Bill. Things which at present would be justified under this clause may cease to be justified in the light of future medical developments. That is not made impossible if we accept the clause as it stands.
So my objections are two-fold: first, the words "it is more likely than not" simply mean, I think, "it is probable"; and, secondly, I think that "it is probable" is putting the matter too high. I think there is not much wrong with the words as they stand, if we are to admit, as I think the majority of the House wish to admit, that this shall be a separate ground on which abortion can be justified.
10.35 p.m.
LORD SEGAL: My Lords, I have not the slightest doubt in my own mind as to which way I would vote if it came
1478
to a Division, and that is most emphatically against the Amendment. I would plead most earnestly with your Lordships that in discussing this whole question of physical or mental abnormalities we leave statistics entirely out of consideration. Statistics at best are liable to be inaccurate and to be illusory. On this issue especially, I think the wishes of the mother ought to be taken primarily into account.
I can speak from very little experience of the problems of physically handicapped children, but I can with slightly more experience speak of the problems of mentally handicapped children. I have found it to be almost the invariable rule that wherever parents find themselves with a mentally handicapped child they will go to any possible lengths to avoid the addition to that family of another mentally handicapped child. What will happen will be that for a period of many years, until they have adapted themselves to living with a child seriously mentally handicapped, invariably they will take the utmost precautions against a further pregnancy, and if unfortunately against her wishes the mother finds herself pregnant, I believe there is every justification for her to go to a doctor and ask for an abortion. But after a further lapse of time, the parents, jointly deciding among themselves that they really feel they want to have another child, will be prepared to take the risk with their eyes open. Invariably that happens, this desperate longing to have another child in spite of the risks involved. Then they would go to a doctor, and I believe having once taken the decision the last thing they would wish for would be an abortion.
I would ask that this phrase "substantial risk" be interpreted in its literal sense, in other words, a risk of some substance, and I would urge that the mother herself should be able to decide whether a risk of some substance exists. So I would urge that the wording of the Bill as it stands is from every point of view far preferable than digressing into discussions of the matter of relative statistics.
VISCOUNT DILHORNE: My Lords, I make no apology for raising this particular matter, because I think it is one with

1479
considerable point. I would say this to the noble Lord, Lord Silkin, who said I had used the word "substantial risk" in another context. In fact, as he knows, there was no Amendment moved by me at this stage, and that Amendment was on the Paper not at my request. It was put down because that was his phrase, and I hoped that if the worst came to the worst it might be acceptable. The noble Lord will remember that years ago when he introduced his Bill I suggested the word "likely", and everyone said, "does it mean more likely than not"? It was said to be extremely vague. I think someone else suggested the formula "more likely than not" as being more clear than "likely". I thought I would put it down for consideration, but in view of the argument that has taken place, I beg leave to withdraw the Amendment.
Amendment, by leave withdrawn.
VISCOUNT DILHORNEmoved, in subsection (1)(b), to leave out "seriously handicapped" and insert "deprived of reasonable enjoyment of life". The noble and learned Viscount said: This is a more important Amendment, and again it bears on the language. I entirely agree with what the noble Lord Segal has just said about mentally handicapped children. I do not think the problem really arises with regard to that, but I am not, I must confess, at all happy with the phrase, "such physical or mental abnormalities as to be seriously handicapped."
What does that amount to? Some people would say that to be born with a club foot was a serious handicap; to have one leg or one arm was a serious handicap. But is it really intended by the sponsors of this Bill that an abortion can take place lawfully if there be a substantial risk of a child's being born with one leg shorter than the other? Is that the intention? I should like to know, because it seems to me that if that is not the intention of the sponsors of this Bill then the language is too wide; because if that is not the intention of the sponsors of the Bill the language ought not to enable abortions to take place for that kind of physical handicap. We have never been told about that.
1480
I think it is difficult to find the right test. I have sought to put down a test, and it is again a guide for the doctors who have to form this opinion. I have endeavoured to formulate the test of reasonable enjoyment of life. I should have thought that the doctors could be trusted to form an opinion on whether the capabilities which were likely to ensue were such as to prevent there being a possibility of a reasonable enjoyment of life. I am worried about the words "seriously handicapped" because I think they go far too wide, far wider than the promoters and sponsors of this Bill want. They open the door to a lot of abortions in respect of people who may be seriously handicapped in the sense of having one leg shorter than the other, but who none the less could reasonably enjoy life if they were permitted to be born. I beg to move.
Amendment moved—
Page 1, line 22, leave out ("seriously handicapped") and insert ("deprived of reasonable enjoyment of life").—(Viscount Dilhorne.)
10.42 p.m.
LORD GRENFELL: My Lords, may I say that I think it is unreasonable to put on a doctor the burden of saying that a child before it is born would be deprived of a reasonable enjoyment of life? I am chairman of a hospital which has mentally and also physically handicapped children, and would say that there are but few of those children who are in any way deprived of a reasonable enjoyment of life. I do not think it is fair on a doctor to try to get him to say that in law there should be an abortion, nor do I think it is fair on the child. I hope that my noble and learned friend will withdraw this Amendment. I think that these are the wrong words, and I am sure that we are asking too much of the doctors.
BARONESS SUMMERSKILL: My Lords, may I support the noble Lord who has just spoken? Of course it is asking too much of the doctors, and I support him fully. But may I address myself to the noble and learned Viscount, Lord Dilhorne, who apparently thinks that one short leg need not be considered too seriously, and that a man with one short leg might have a reasonable enjoyment of life. Is he aware that doctors in our prisons today have been studying

1481
some of the younger men who come there who are anti-social, who find it difficult to communicate, and have discovered that many of them have minor deformities? It is now a commonplace in our prisons for plastic surgeons and others who can in some way remedy these deformities to operate on our prisoners. Although with one leg short the man might not find it difficult to run, nevertheless he develops such an inferiority complex that he becomes so anti-social that one could not possibly consider that he has a reasonable enjoyment of life.
LORD MOLSON: My Lords, the difference between these two phrases, that which is at present in the Bill and that which my noble and learned friend proposes to insert, is the difference between an objective standard and a subjective standard. It is impossible for anybody, be he doctor, a psychiatrist or anyone else, to say what is a person's capacity for enjoyment of life. One thing that is certain is that different people have entirely different capacities of enjoyment. It is quite impossible for anybody to measure the capacity of enjoyment of life, even when people have been on this earth for quite a time. To ask a doctor, or anybody else, to form a judgment on what the future capacity of enjoyment will be is not a practical proposition. It is far more in line with medical science to ask him to determine whether or not the child will be handicapped.
My noble and learned friend said this meant that an abortion might take place where the handicap was not a very great one. It is of the very substance of this Bill, running all the way through it, that it will be necessary to rely on the judgment of doctors. That has been criticised by the supporters of the Bill; it has been a ground of criticism by the opponents of the Bill. But it is inevitable that we should place confidence in the judgment of the doctors. They will be able to decide whether a handicap is sufficiently serious to justify an abortion, and there is no doubt in my mind that it is a far better way of drafting the Bill than attempting to introduce a subjective test of this kind which it is quite impossible to apply.
THE EARL OF PERTH: Before commenting briefly on this Amendment, I would make it clear that I voted against the Second Reading of the Bill and that I do not approve of the Bill, for reasons of conscience. None the less, I do not see that as a ground for not trying to make the Bill a better Bill than it otherwise would be. I recall that on Second Reading I asked the noble Lord, Lord Silkin, if he could help me on the words which occur here, "seriously handicapped". I thank him for trying to do that, and would recall to your Lordships how he interpreted those words. He said:
"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"—[OFFICIAL REPORT. 26/7/67, col. 1057.]
And, later [col. 1058]:
"I would say that a child who is incapable of thinking or doing anything for himself is seriously handicapped"
It is all very well to say, "Well, we can leave it to the doctors." Doctors may or may not be able to judge. I am not entirely happy with the wording moved by my noble and learned friend Lord Dilhorne. We are not going to have time to consider these words because the Bill is going through all stages this evening and there will not be an opportunity to try to find some other words to meet the definition as outlined by Lord Silkin on Second Reading. All I ask is that those in another place who have to consider the Bill will again see whether they could find some words on the lines used by Lord Silkin which would meet what is certainly my worry and, I think, that of various others: that the words "seriously handicapped" are too broad. But that does not mean that the exact words which my noble and learned friend Lord Dilhorne has put down are the right words.
10.50 p.m.
LORD STONHAM: My Lords, I think the noble and learned Viscount had the intention of closing this discussion. Before he does so, may I just put two points to him which seem to me the ones at issue? With regard to the prospect of a reasonable enjoyment of life, it is

1483
expected that the doctor or surgeon should be able to make a judgment on that before the child is born, and at an early stage. I submit to the noble and learned Viscount that it is virtually impossible for anyone, taking an objective and sympathetic view, after the child is born and when it is growing up, to declare positively that it is not reasonably enjoying life.
My noble friend Lord Segal is Chairman of the National Society for Mentally Handicapped Children, an office which at one time I occupied. Your Lordships could go and mix with children who are by any standards, very severely mentally handicapped, with an IQ of 30 or less, but I think you would decide that they were happy children and reasonably enjoying life. It could be argued that their horizons were very limited. Now these are children of 15 and 16, with whom you can talk and walk, and see and form an opinion on, but we are now asked to place a burden on the doctor, not of deciding whether a 15 or 16 year-old is reasonably enjoying life, but whether, on the knowledge available to him, presumably about the parents or any illness from which they may suffer, a child, if born, would reasonably enjoy life.
The other point which I would make, which has already been made, is this. It was argued by the late Lord Brain, when we previously discussed this point on an earlier Bill, that the unborn child's prospect of reasonable enjoyment of life was not something which a doctor was capable of calculating. It surely is doubtful whether a doctor can really form an opinion on an unborn child's prospects of enjoyment of life. He is professionally equipped to assess the degree of abnormality, but not to say how the enjoyment of life of a particular individual who is not yet born will be affected by it. The capacity to enjoy life depends on aspects of personality and character, which may be independent of any physical or mental abnormality and which it would be impossible for a doctor to assess, or even form an opinion on, in the case of an unborn child.
The words at present in the Bill are "seriously handicapped". That is something which a skilled doctor can assess.
1484
On a previous Amendment the noble Viscount, Lord Waverley, explained that in professional terms. But that is one thing, and the degree of abnormality is something for a doctor to assess. But I feel that the House may agree that the test of reasonable enjoyment of life is a wholly impractical one for the doctor to apply.
VISCOUNT DILHORNE: My Lords, I am rather astonished at some of the things that have been said in this debate, because, first of all, it is not the case that the Bill requires the doctor to assess the degree of handicap. The woman comes to see the doctor and he has to consider whether or not there is a substantial risk that the child may suffer from such abnormalities as to be seriously handicapped. That is the question to which he has to apply his mind, not the question of the degree of seriousness of the handicap. If those conditions exist, he can lawfully perform the operation: if they do not, he cannot.
The noble Lady, who always seeks to disagree with me if she can, gave me a lecture upon what constituted a serious physical abnormality. She in fact made my case. I never suggested that if you were born with one leg shorter than the other it was not a serous handicap.
BARONESS SUMMERSKILL: The noble Viscount implied it.
VISCOUNT DILHORNE: No, I did not. I suggested that people would regard it as a serious handicap—and the point I want to make is this. Can you really justify the prevention of a human life because there is a risk of that handicap, which one regards as serious, or because there is a risk of the child being born with one arm, which again is a serious handicap? It is all very well to say that these people in prison have to have these matters put right, but that is beside the point we are discussing now. The point we are discussing now is the argument advanced by those who support the Bill, that power should be given lawfully to determine a pregnancy where there is a substantial risk of such a handicap occurring; that is to say, that those people should be prevented from being

1485
born. My Lords, it horrifies me. My noble friend Lord Grenfell and the noble Lord, Lord Segal, have talked about children who suffer from serious handicaps yet are happy children. Are we really to say that those children should never have been born?—because that is the power it is sought to take here; power to prevent children of that sort from being born. Is it really being said that they never should have been born, whether they are happy or not? Because under this Bill, seriously handicapped as they are, if there is a prospect of it then abortion can take place.
My Lords, the words, "reasonable enjoyment of life" may not be an apt or correct formula, but at least I thought it preferable to giving this wide power to prevent other lives from coming into existence—lives which Lord Segal and Lord Grenfell have said are happy lives—and to prevent other people from being born who have serious handicaps, just minus a leg or minus an arm. I wanted to get a concept different from that, because I have always been of the belief that some such clause as this was desirable, though in my belief this clause goes too wide.
On Question, Amendment negatived.
LORD SILKINmoved, after subsection (1), to insert as a new subsection:
"( ) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, account may be taken of the pregnant woman's total environment actual or reasonably foreseeable;, but the references in that paragraph to risk do not include references to such risk as is inseparable from any pregnancy or childbirth."
The noble Lord said: My Lords, this is merely a redrafting of a similar provision in the Bill. I do not think I need go through it, because in a sense it is exactly the same, except that it is an improvement in the language. There is an Amendment to this Amendment (it is No. 12), to leave out the last three lines of this Amendment. These are words that I had included in order to deal with exactly the same point as the noble and learned Lord, Lord Parker of Waddington, had intended to deal with by his Amendment. These words are no longer necessary, and the noble and learned
1486
Lord, Lord Parker of Waddington, has put down an Amendment, No. 12, to delete these last three lines. I propose to accept that Amendment to the Amendment, but at the moment I am moving the Amendment as it stands on the Paper.
Amendment moved—
Page 1, line 22, at end insert the said subsection.—(Lord Silkin.)
11.0 p.m.
VISCOUNT DILHORNEmoved, as an Amendment to the Amendment, to leave out "total environment". The noble and learned Viscount said: My Lords, I want to ask the noble Lord a question about this Amendment. In Committee he accepted an Amendment which I moved to leave out the word "total" in front of the word "environment". I want to ask the noble Lord why he has put it back and what difference it makes. It would be much better to say that account may be taken of the pregnant woman's actual and reasonably foreseeable environment. That is the effect of Amendments Nos. 10 and 11 which are purely drafting—and it puts it in the right order. But having had the word "total" taken out in Committee, with the noble Lord agreeing to that Amendment, I must say that it surprised me to find him putting it back again on Report and to hear him move this Amendment without any explanation of why he was doing so when he had accepted the Amendment in the first place. I suggest the word "total" is wholly unnecessary. "Environment" covers the whole field. I want the whole field covered. We are drafting an Act of Parliament here, and "total" adds nothing to "environment." I hope the noble Lord will leave it out. May I just ask we consider this Amendment with Amendment No. 11, because they really go together. The effect would be that account may be taken of the pregnant woman's actual or reasonably foreseeable environment. That is how it would read. I beg to move.
Amendment to Amendment moved—
Line 4, leave out ("total environment)"—(Viscount Dilhorne.)
THE LORD BISHOP OF DURHAM: My Lords, may I plead that we retain the word "total", otherwise we might

1487
take "environment" too narrowly. If the word "total" comes before it, we cannot take it too narrowly. To take it out would lead to quibbling. Obviously sociologists and psychologists use "environment" and "environmental" in a rather restricted sense. It seems to me that it would lead to all kinds of quibbling if the word "total" were not there. If we put "total" in it means that nothing whatever need be excluded; and that, from the lawyers point of view, is more a help than a hindrance. I would plead that the word be left in to make it clear that nothing—no matter what—is excluded.
THE EARL OF IDDESLEIGH: My Lords, with enormous respect to the right reverend Prelate, I still do not understand in what way the adjective "total" modifies the substantive "environment". I have always understood that "environment" means "that which surrounds". "That which surrounds" is obviously that which totally surrounds. I am not being awkward or difficult; I just want to know in what way the adjective "total" modifies the power of "environment".
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, the difference is between "environment" in the sense of geographical proximity and "environment" in the sense of relevant circumstances. The word "total" makes it clear that neither are excluded.
BARONESS SUMMERSKILL: My Lords, may I remind the House and the most reverend Primate that it was in one of the Church doctrines on some aspect of sociology that the words "total environment" were used.
LORD SILKIN: My Lords, I am in a dilemma. I should like to please the
noble and learned Viscount and also the most reverent Primate. My own inclination is that the word "total" is not essential. I cannot think it adds anything. I am therefore on the whole disposed to accept Amendments No. 10 and No. 11. That will make my noble friend happy.
VISCOUNT DILHORNE: My Lords, may I say "Thank you" to the noble Lord, and may I say to the most reverend Primate (who I hope this time will be on the same side as I am) that I have no desire to exclude consideration of all relevant circumstances whether ecclesiastical, geographical or any other "aphical". I think that is fully covered by the word "environment" in the ordinary meaning of English language. I was surprised to hear the right reverend Prelate the Lord Bishop of Durham suggesting anything to the contrary. I gratefully accept the noble Lord's offer to accept these Amendments.
LORD SILKIN: My Lords, may I make the same reservation as I made when accepting an earlier Amendment? This measure has to go back to another place. I am happy to say that I have been able to consult them on the earlier Amendment which they have accepted, but on this Amendment I have not been able to do so. Therefore, I hope that the noble and learned Viscount will not accuse me of bad faith if it is not accepted in another place.
VISCOUNT DILHORNE: No, my Lords, I shall not. I know that the noble Lord, Lord Silkin, cannot commit another place.
11.5 p.m.
On Question, Whether the Amendment to the Amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 39.

CONTENTS

Airedale, L.

Drumalbyn, L.

Leatherland, L.

Amulree, L.

Dundee, E.

Longford, E. (L. Privy Seal.)

Barrington, V.

Exeter, L.Bp.

Lothian, M.

Carnock, L.

Ferrier, L.

McCorquodale of Newton, L.

Clifford of Chudleigh, L.

Fraser of Lonsdale, L.

Milverton, L.

Colville of Culross, V.

Greenway, L.

Molson, L.

Conesford, L.

Grenfell, L.

Mowbray and Stourton, L.

Cork and Orrery, E.

Harvey of Tasburgh, L.

Peddie, L. [Teller.]

Craigmyle, L.

Henley, L.

Robbins, L.

Darwen, L.

Huntingdon, E.

St. Aldwyn, E.

Dilhorne, V. [Teller]

Iddesleigh, E.

St. Just, L.

Selkirk, E.

Silkin, L.

Teynham, L.

Sera pill, Ly.

Strathcarron, L.

Winchester, L.Bp.

Sherfield, L.

Swaythling, L.

Winterbottom, L.

Ypres, E.

NOT-CONTENTS

Addison, V.

Gardiner, L. (L. Chancellor.)

Redesdale, L.

Asquith of Yarnbury, Bs.

Gifford, L.

Segal, L.

Beswick, L.

Hilton of Upton, L.

Serota, Bs.

Bowles, L.

Hughes, L.

Shackleton, L.

Bristol, L.Bp.

Kennet, L.

Sorensen, L.

Brockway, L.

Mitchison, L.

Stocks, Bs.

Byers, L.

Moynihan, L.

Stonham, L.

Campbell of Eskan, L.

Noel-Buxton, L.

Strabolgi, L.

Canterbury, L.Abp.

Norwich, L.Bp.

Strange of Knokin, Bs.

Collison, L.

Norwich, V.

Summerskill, Bs. [Teller.]

Durham, L.Bp. [Teller.]

Plummer, Bs.

Swanborough, Bs.

Falkland, V.

Raglan, L.

Truro, L.Bp.

Fisher, L.

Reay, L.

Vernon, L.

On Question, Amendment agreed to.

Resolved in the affirmative and Amendment to Amendment agreed to accordingly.
VISCOUNT DILHORNE: My Lords, I beg to move.
Amendment to Amendment moved—
Line 5, after ("foreseeable") insert ("environment").—(Viscount Dilhorne.)
VISCOUNT DILHORNE: My Lords, this is an Amendment which my noble and learned friend has asked me to move, and which the noble Lord, Lord Silkin, has said he would accept. I hope that we shall be able to get it inserted into the Bill without a Division being called by the right reverent Prelate. I beg to move.
Amendment to Amendment moved—
Line 5, leave out from ("foreseeable") to end of line 7.—(Viscount Dilhorne.)
THE LORD BISHOP OF DURHAM: My Lords, I give the noble and learned Viscount that assurance.
LORD SEGAL: My Lords, before we proceed to decide on this Amendment, I cannot refrain from urging on my noble friend Lord Silkin that this Amendment would be improved in its last line if he inserted the word "normal" after "any". "Any pregnancy or childbirth" is so sweeping that it may include any abnormal pregnancy or childbirth as well. I think it is advisable to limit this quite definitely so that there is no confusion in the doctor's mind. A normal pregnancy is quite easily definable; a normal childbirth is quite easily foreseeable. I cannot help feeling
1490
that the Bill would be improved by the insertion of the word "normal" after "any".
LORD CONESFORD: My Lords, does the noble Lord realise that he is proposing an Amendment to something that is being left out?
Amendment, as amended, agreed to.
11.18 p.m.
LORD SEGALmoved, after subsection (1), to insert as a new subsection:
"( ) 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: My Lords, I do not wish to detain the House very long at this stage, but perhaps it is just as well to take stock of the legislation we have been engaged in passing up to this point. What we have done this evening is to unleash a flood of new operations which are expected to be performed by the medical profession. It is known already that the vast majority of doctors have more work than they can cope with at the moment, and there is little likelihood of any further substanial increase in the number of doctors over the next few years.
The whole purpose of this Amendment is to safeguard the life of the mother. As your Lordships are aware, by the time the fifth month of pregnancy has been reached the fœtus has obtained the size of over seven inches. By then

1491
an abortion can assume all the significance of a serious operation. Delays in performing an abortion will still often occur, even under this Bill—delays, for example, where a psychiatrist ought to be consulted. In such cases it is of paramount importance that the risks to which the mother is exposed should be minimised so far as possible. I believe that when this stage of pregnancy has been reached no abortion should be undertaken by a general practitioner except under the supervision of a consultant. This Amendment has been worded as widely as possible, consistent with not exposing any mother at this late stage of her pregnancy to unnecessary risks. It safeguards the life and health of a mother when an abortion exposes her to very serious risks and, in my view, this Amendment ought to be included in the Bill. I beg to move.
Amendment moved—
Page 1, line 22, at end insert the said subsection.—(Lord Segal.)
LORD SILKIN: My Lords, it is rather late in the day and late in the night for an Amendment of this kind, which introduces into the Bill an entirely new principle, and new machinery for carrying out the Amendment, if accepted. I am not competent to say whether if it had been put forward at an early stage and discussed, say in Committee or on Second Reading, it would have been acceptable, or whether in another place it would have been acceptable if it had been put forward. But to put it forward at this late hour seems to me to be asking the House to take a pretty strong pill, and we really should like to understand what we are doing. I hope, therefore, that the noble Lord, having put his case, will not press it tonight, and that his words will be taken to account when the Bill is actually in operation.
VISCOUNT BARRINGTON: My Lords, I should like to ask on this Amendment, be it very late in the day, admittedly at night, whether I am right in thinking that the Amendment was put down in fact before an Amendment which was admirably introduced by the noble Baroness Lady Stocks, and passed by a very substantial majority in your Lordships' House? I am not quite clear why an Amendment should not be discussed, anyhow, which was put down rather
1492
earlier than that, and which the sponsors of the Bill must surely have had plenty of opportunity of seeing.
I am not qualified, and I will certainly not detain your Lordships, to put the merits of this Amendment. But I feel that if anybody thinks it should be discussed he should not be deterred by the lateness of the time it was put down, which was no fault of your Lordships' House, because the Bill was in another place for a very long time before it came to us. We have to make up our minds on infinitely different problems. It is late at night and is as tiresome to me as anybody else, so I shall say no more. I think it would be a pity if this Amendment was not discussed by anybody who thinks that it is worth discussing.
LORD BROCK: My Lords, I feel fully in sympathy with Lord Segal's concern about such an operation being performed by experts in the way he is suggesting. I would point out that this is really a domestic matter for the profession, and not necessarily the subject of legislation within your Lordships' House.
LORD SEGAL: My Lords, I should naturally wish to defer to my friend Lord Silkin and the wishes of the House, but I think it only fair to state that this Amendment was originally down for discussion in the Committee stage. But our proceedings were somewhat unduly prolonged, and although I was fully aware that we might be in for a "hard day's night" this evening, I realise that your Lordships' House is not quite as accustomed to marathon sittings as are Members in another place.
This Amendment involves a matter of principle, and in deferring to the wishes of your Lordships' House I should like to suggest to my noble friend Lord Silkin that it might be given some further consideration when it is passed on to another place.
VISCOUNT DILHORNE: My Lords, I do not know that it can be, can it? No further consideration can be given to it in another place; and I must say that I think we have had a very inadequate answer from the noble Lord, Lord Silkin. If this Amendment was down, as it was, for the Committee stage, the noble Lord surely should have been prepared to reply to it then. I do not really

1493
think it suffices—it does not suffice to satisfy me—when the noble Viscount says that it is not our fault that this Amendment is now being taken at a very late hour tonight. It is still a very important point, and I think it has become even more important because of the first Amendment carried today. I think that that has added great strength to this Amendment, and I do not know that it is the wish of the House that we should depart from this Amendment because the noble Lord, Lord Silkin, says this is really not the sort of point that ought to be raised for the first time at a late hour on a late stage of the Bill. I do not think it is the fault of the noble Lord, Lord Segal, that it is at a late hour or at a late stage. But it is obviously a point of considerable importance, and I should like to know what the views of the sponsors of the Bill are with regard to it.
LORD KENNET: My Lords, if there is a disposition in the House to divide upon this Amendment, I could perhaps with advantage say a word or two. It has something in common, as the noble and learned Viscount suggested, with the first important Amendment we took this afternoon on the consultants. It imports the consultant into the procedure again, although at a very different stage. I am informed that the well-established medical view is that evacuation of the uterus should not normally be carried out later than the sixteenth week. After this time the method of termination of pregnancy has to be hysterotomy. This is a more serious operation, and this is presumably what is in the mind of my noble friend Lord Segal: that such an operation ought to be carried out only by, or under the direction of, consultants because it is more serious.
The House will readily see that we are up against the same difficulty here as we were earlier. I think I am right in saying that there is no provision in the law anywhere that a given operation, because of its seriousness, may be carried out only by one type or grade of doctor. The House may find strong reason for adopting the view that the selection of the person with the necessary surgical skill is a clinical matter which should be left to the doctors concerned and not determined by legislation. If the House
1494
takes this view, it will no doubt feel that this provision is something which need not be expressly included in the Bill.
LORD SEGAL: My Lords, I feel that some point has been gained by this matter having been raised, even at this late stage. I am very anxious that the purpose of this Amendment should not be overlooked. It is primarily a clinical matter, but your Lordships' House has been engaged during the evening in giving guidance and advice to the medical profession on the whole essence of this Bill. However, in view of factors which have been stated—the lateness of the hour and the fact that your Lordships' House is somewhat unaccustomed to marathon sessions—I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
11.30 p.m.
LORD GRENFELLhad give Notice of his intention to move to leave out subsection (2). The noble Lord said: My Lords, because of the decisions that have been made by your Lordships today, I feel that we must have control over the place of the operation. Although this subsection is more restricting than I should wish, I believe it must remain, and hence I do not intend to move my Amendment.
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 in excess of £100, or such other figure as may from time to time be prescribed by regulations by the Minister, 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: My Lords, I apologise for moving this Amendment at this late hour, but I propose to do so because I should like to hear what any noble Lord has to say about it. I shall not press it if it is the feeling of the House that we should get on to the Third Reading. I do not think that complaint can be made that this Amendment is at particularly late notice, because I moved a rather more rigorous Amendment

1495
which I did not press, suggesting that a practitioner in private practice should receive no fee at all. The noble Lord, Lord Silkin, gave me a patient answer, but one that did not entirely convince me.
I should not have moved, and certainly should not have pressed, this Amendment if some of the previous Amendments had been retained. As it is, it seems to me—and I may be in a minority of one—that with the best intentions the door is thrown wide open to the extremely few rather unscrupulous members of the medical profession who could, by dint of this Bill, make as much money as they like. I think the safeguards have been reduced by your Lordships from a level that was precarious before to something that is quite negligible now.
The noble Lord, Lord Silkin, expressed the view that collusion did not exist. If I may say so, I think that is because there was not much need for it. But under this provision, with two practitioners, there will be the need. I still believe that the best, most honourable and most important reason for supporting this Bill as it first came to your Lordships' House (and I pay every tribute to the noble Lord, Lord Silkin, for having produced a very good Bill in the first place) was with the idea of abolishing back-street abortion, of which there are two kinds. One kind is very cheap, but very unhygienic. Of the other kind no doctor can complain on hygienic grounds, but it is very expensive. Of course, the richer people who are prepared to pay will have priority.
It has been made abundantly clear to me, if to nobody else—and I apologise for speaking impromptu, because I had not expected to move this Amendment—that under this Bill there will be a great rush for abortions, with an inadequate provision of places and an inadequate provision of honourable and competent people to provide the abortions. I believe the medical profession is the most honourable profession in the world, but as the noble Baroness, Lady Summerskill, quoted the noble Lord, Lord Taylor, as saying at the end of the last Session, no profession is entirely without people who will take money for doing something which nobody should do.
I believe there are well-known and excellent hospitals which say that this is a unique operation for which no private practitioner should take any money at all. I think the reason it is unique has not been brought out, but it is perfectly clear that this is the only operation in respect of which 100 per cent. fatality is expected and desired, otherwise it would not be a successful operation. One has to kill something like a human being, for the perfectly good reason that it saves another life. As the Bill now allows it to be done for any reason—because I can see no reason in law why any doctor should not do it—I think the best test is whether a doctor is prepared only to accept the modest fee of £100 per corpse, if I may put it rather crudely, or whether the Minister is prepared to accept such arduous responsibility of fixing a fee, which I think is not impossible to do. It was suggested, when a similar Amendment was put in another place, that this is utterly unacceptable, particularly to a Socialist Government because it means interfering with the rights of a private practitioner to charge what he likes. I am not a member of the Party opposite or of the Party on my left: I am a member of the Liberal Party; and my view is that private practice is perfectly entitled to exist but that there are occasions, even when it is doing something legal, when there is a temptation to take money for it. I should have thought it was within the capacity of the Minister, if he does not like the fee of £100 I propose to suggest another figure. I should like to know whether any of your Lordships have anything to say on this subject, and I will then either press the Amendment or not, according to the speeches that are made. I apologise for detaining your Lordships beyond 11.30, but as this was discussed at two all-night sittings in the Commons, at both of which I was present, it is not a very great hardship. I beg to move.
Amendment moved—
After Clause 1, insert the said new clause.—(Viscount Barrington.)
LORD MOLSON: My Lords, a similar Amendment to this did not commend itself to your Lordships on Committee stage, and I can hardly suppose that this new clause will commend itself to you

1497
this evening. The whole purpose of this Bill has been to try to arrive at a proper and legal machinery for carrying out necessary and desirable abortions. Why the noble Viscount should now choose to introduce a clause of this kind which would discriminate against this specially legalised and properly regulated operation I do not understand. It would be the only case in which there is in a Parliamentary Statute a limit upon the fee that could be charged by a professional man for carrying out a necessary and desirable operation. The only possible explanation for it is that the noble Viscount is carrying his hostility to the whole principle of this Bill to the illogical point of choosing to impose a limit on the charge that can be made by a person acting legally within the terms of the Statute. For these reasons I hope that your Lordships will not accept this new clause.
VISCOUNT BARRINGTON: In view of the fact that this Amendment clearly has no support I will not press it. I should only like to ask the noble Lord, Lord Molson, what was the Amendment which did not receive the favour of your Lordships. I moved a similar one but did not press it, so there was no question of that being rejected by this House. I would say, in conclusion, that I feel that even a Socialist Government does sometimes make distinctions in general rights of people to do otherwise legal things. It is perfectly legal to drink and it is perfectly legal to drive a car, but there is a very good case—and I agree with it—for saying that in exceptional cases people who drink when they are driving should be subjected to certain tests, though I should be very annoyed at being subjected to them if I had drunk tea or coffee. This is a unique operation, taking life: it is felt to be a unique operation by every hospital, by the people who do it, and I feel it should have a certain safeguard. This is the last safeguard I can think of, but as your Lordships are not prepared to accept it I will not press the Amendment.
Amendment, by leave, withdrawn.
Clause 4 [Conscientious objection to participation in treatment]:
11.40 p.m.
LORD SILKIN: moved to add to the clause:
"( ) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section."
The noble Lord said: My Lords, this is an Amendment which seeks to put the Scottish doctor in the same position as the English doctor. Under Scottish law there has to be confirmation, corroboration, if a person is claiming to have a conscientious objection. Under English law the onus of proof is satisfied by the evidence of the doctor himself, without corroboration, and it was thought desirable that in this particular type of matter Scottish law should conform with the English law, and the Scottish doctor should not be put to any disadvantage as against the English doctor. I beg to move.
Amendment moved—
Page 3, line 47, at the end insert the said subsection.—(Lord Silkin.)
Then, Standing Order No. 41 having been suspended (pursuant to Resolution of July 26th):
LORD SILKIN: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a. (Lord Silkin.)
On Question, Bill read 3a, with the Amendments.
Clause 1 [Medical termination of pregnancy]:
VISCOUNT DILHORNE: My Lords, I think that now has come the time for me to move the Manuscript Amendment. It is as follows:
"Page 1, line 2, leave out ('that practitioner and another registered medical practitioner') and insert ('two registered medical practitioners')."
I hope that this is not a controversial point. It is one that I should have "spotted" before and raised earlier. If

1499
your Lordships will look at the Bill as it is drawn, you will see that at line 6 it provides as follows:
"when a pregnancy is terminated by a registered medical practitioner if that practitioner and another registered medical practitioner … are of the opinion"
et cetera. So as the Bill now stands it means that one of the two medical men who give that opinion has in fact to perform the operation.
Thinking it over, I wondered whether it was really necessary, and not too restrictive, to provide that one of the two who had given the opinion must actually perform the operation. It seemed to me that it would be much better, particularly in relation to a hospital, that where there were these two opinions of two men in the hospital, the surgeon who had given the opinion ought to be free to entrust the performance of the operation to someone else in the hospital; it should not be held up until that surgeon was available to operate himself. I can see no objection to that, and I think that this would be an improvement to what I regard now as an otherwise most unsatisfactory Bill. But I put this forward to the noble Lord. I hope that I have made the point clear. Now, as the Bill stands, one of the two must operate. Under this Amendment the effect is that a doctor can operate if two other doctors have expressed this opinion. I beg to move.
Amendment moved—
Page 1, line 8, leave out ("that practitioner and another registered medical practitioner") and insert ("two registered medical practitioners").—(Viscount Dilhorne.)
11.45 p.m.
LORD KENNET: My Lords, the appearance of a new Amendment introducing a completely new principle in the form of a Manuscript Amendment so very late at night will perhaps license my intervention at this stage to give what must necessarily be a very preliminary reaction. I do not know whether the House will agree with this, but at first blush it seems to me that the difficulty one would run into with this procedure would be that the man who actually does the abortion may not be able to be prosecuted at all.
VISCOUNT DILHORNE: My Lords, I do not follow that. He will not be liable
1500
to be prosecuted if he can show that two other doctors have expressed this opinion; but unless he can establish that in relation to the patient he will be liable to be prosecuted.
LORD KENNET: I accept that. One must then imagine that prosecutions may be brought against those who have given the opinion which may or may not be held to license the action of a third party who has no opinion. I cannot, after such little consideration, say whether that is a good thing or a bad thing, but I would invite the House to consider whether or not it would be right to adopt such a thing with so little consideration as to whether it will have a good or a bad effect on the operation of the whole procedure.
VISCOUNT DILHORNE: My Lords, may I suggest that if this Amendment were accepted it would give further time between now and consideration in the Commons for the point to be considered by the sponsors of the Bill.
BARONESS SUMMERSKILL: My Lords, I feel that this point needs much more careful thought. At very short notice the noble Viscount has introduced a third doctor. It has been agreed that two would be sufficient. In a Catholic hospital there may be gynæcologists who are reluctant to do this operation, and I have always in mind that when a third doctor is introduced it means that in a matter where the conscience is concerned it might create extra difficulties. I hope that the noble Viscount will give us much longer than this to think about what the repercussions might be.
THE LORD BISHOP OF EXETER: My Lords, have we any time to give it much further consideration? There was a great deal of talk earlier today about the importance of bringing in the family doctor, but in most cases the family doctor is not the doctor who is capable of performing an operation. As I understand the noble and learned Viscount's Manuscript Amendment, one of the points is that if his Amendment is accepted one can use the family doctor, the general practitioner, as one of the two doctors on whose opinion this operation is to be grounded, then have the expert as a third man actually to perform the operation. I feel that the last speech by the noble Baroness ran counter

1501
to the line she was taking earlier this afternoon, but I may have misunderstood her. I sympathise very much with the desire expressed earlier this evening that the family doctor should be brought in, and it is difficult to bring him in if he is one of the only two people who must subsequently perform the operation.
LORD MOLSON: My Lords, at first blush I am impressed by the attractiveness of the Manuscript Amendment put forward by the noble and learned Viscount, but I beg your Lordships not to accept it tonight. This Bill has been discussed at great length in the House of Commons; it has been discussed at considerable length here, and after many precarious moments it looks as though it might just be reaching a safe destination. Therefore, I hope that, bearing in mind that it has not been possible to consider all its ramifications and consequences, your Lordships will not accept the Amendment. I am sure that there is no absolute need for it, although it may be an improvement to the Bill. What is at present likely to prove a Bill that is acceptable to the sponsors in another place would not be made more acceptable to them by an Amendment introduced and moved at ten minutes to midnight when none of us has had an opportunity to consider it fully and when it has not been possible for the medical profession, for the Parliamentary draftsmen, and for the Government Departments concerned to give the matter consideration. I therefore beg your Lordships to reject this Manuscript Amendment.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, I feel that the argument about the hour being very late is rather double-edged. It might be argued—indeed, I would argue—that we should not, just because the hour is late, omit any possible opportunity, even now, of improving the Bill. If the noble and learned Viscount's Amendment is worth consideration at all, do not reject it, because to reject it is to kill it. But if it were passed here both the sponsors of the Bill and another place would meanwhile have an opportunity of looking at it, seeing whether they can make anything of it, and sending it back to us; and our House has indeed spared another
1502
place very much work by the many decisions which we have made today.
LORD CRAIGMYLE: My Lords, the most reverend Primate is quite right. If we accept this Amendment now and then have second thoughts about it, we can forget about it on Thursday night or Friday morning when we see the Bill again. But if we do not accept this Amendment now and then have second thoughts about it, we shall have to have a new Act of Parliament next year or the year after.
LORD SILKIN: My Lords, I am afraid that I have to offer advice to your Lordships, and it is very difficult. I am not able to form any judgment at all on the merits of this Amendment. I do not know whether or not it is an advantage to the Bill. It looks attractive, but then so many things look attractive which on further examination turn out to be the reverse. I think that, on balance, I should feel disposed to accept the Amendment, with the clear understanding that if the other House disapproves of it we will not make a constitutional crisis of it and reject the Bill. It will, at any rate, give the other place a little time to think about it, and possibly to get technical and professional advice on the subject; and it may well be that it will offer advantages in the operation of this Bill when it becomes law. I would therefore advise your Lordships to accept the Amendment with the very clear understanding that if the other place rejects it we will accept that rejection.
VISCOUNT DILHORNE: My Lords, I am grateful to the noble Lord, Lord Silkin, for what he has said, but of course I cannot commit this House to accept the rejection by another place. But, if he is asking me about my attitude to it, I should not have thought that the issue was big enough for any conflict between the two Houses. I can only express that view. I was surprised by the attitude of the noble Lord, Lord Molson, to this proposal, particularly in view of the fact that we had stressed at such length today the advantages of delay owing to there not being enough consultants and gynæologists and people who could perfom operations.

1503
I had in mind, first, as the right reverend Prelate the Bishop of Exeter has said, the fact that if this Amendment were agreed to it would be possible in every case to consult the family doctor and get his opinion, without narrowing the performer of the operation to the other doctor. Now if you have this improvement, and have the gynæcologist and the family doctor giving an opinion, or the psychiatrist and the family doctor, then someone competent to perform the operation, knowing that those opinions have been given and are recorded, can lawfully perform it. It seems to me (I do not want to take too long over this, but I want to get it on the Record so that the other place can consider it) to give much greater flexibility of operation, without any of the dangers which at least I can see if this Amendment is not accepted. But I am grateful to the noble Lord, and I have put the case as shortly as I can.
11.55 p.m.
LORD KENNET: My Lords, with the leave of the House perhaps I may speak a second time to this Amendment before the House, if the House is inclined so to do, adopts this Amendment holding that, although it has not the least idea what effect it will have, it might be a good thing and that we can think about it later. There is the point raised by the right reverend Prelate the Bishop of Exeter on which I should like to comment briefly. It is that as the Bill now stands, as amended earlier this evening, there is nothing whatever to stop the family doctor being one of the two doctors under the Bill. The other one does not have to be a consultant. It can be the family doctor and one doctor who is not a consultant but who has special experience of abortion cases.
There is, of course, nothing, and there was nothing, to stop the family doctor being involved in the decision, as well as the two doctors who certified the need for the operation under the Bill. There is nothing in the Bill which prevents five, or even twenty, doctors from being concerned in the decision: the Bill simply lays down that a minimum of two must be involved. I would invite the House to remember clearly the fact that the consultant is now out, and that the reasons I was advancing earlier for thinking that
1504
the family doctor might be a little remote from the process have now gone. As the Bill now stands, he can be one of the two doctors.
LORD MOYNE: I should like to say very briefly how unsatisfactory it is to be discussing an Amendment that we have not really seen and the merits of which we have not had a chance to consider. It seems to me that the mother, wishing to have considered whether an abortion is necessary or desirable in some set of circumstances, might wish in the first place to go to a gynæcologist who might have seen several of her children into the world. She would go to him in the first place. The family doctor could easily be called in, but then that gynæcologist could not perform the operation.
VISCOUNT DILHORNE: With great respect, in those circumstances, the gynæcologist could perform the operation, but if he was going away on holiday, or something like that, he could not get another gynæcologist to do it. That is the point I make.
LORD MOYNE: Is the noble Viscount saying that the gynaæcologist and the family doctor could be the only two concerned?
VISCOUNT DILHORNE: No. I am saying that under the Bill as it stands one of the two people who have given the opinion has to perform the operation. The effect of the Amendment I am proposing would be that in every case there should be two opinions, but provided there are two opinions some other doctor can then, if required, perform the operation.
LORD MOYNE: Is the noble Viscount saying that some other doctor must perform the operation?
VISCOUNT DILHORNE: No.
LORD MOYNE: Is it that the gymæcologist and the family doctor are sufficient to give the opinion, and that the gynæcologist can perform the operation?
VISCOUNT DILHORNE: Yes.
LORD MOYNE: Then all is well; I had misunderstood what the Amendment proposed.
VISCOUNT DILHORNE: And if he cannot, perhaps because he is going to be away, another gynæcologist or another competent person can. But there must always be the two opinions.
LORD FERRIER: My Lords, as one of the six who opposed the Motion moved by the Lord Privy Seal this afternoon about the introduction of Amendments on Third Reading, I am disposed to agree with what the noble Lord, Lord Molson, has said. I think I am right in saying, especially as the noble and learned Viscount has set the case out so clearly, that the other place can tackle it themselves, and that it is not incumbent upon us to introduce it at this stage.
VISCOUNT DILHORNE: No; they cannot introduce it in the Commons.
LORD FERRIER: Then I am on unsound ground, obviously. I do not like the idea.
BARONESS STOCKS: My Lords, I really do not think that this Amendment is necessary. I was contemplating the kind of thing that would happen. Suppose the family doctor decides, knowing the family, that abortion is required, and he gets another registered practitioner to express the same opinion. The woman is then presumably put into a hospital where the operation is actually performed by whoever is responsible for such operations in that hospital, but who will be a registered medical practitioner. There is surely nothing to say that there may not be three persons concerned in this opinion. It is a minimum of two.
VISCOUNT DILHORNE: My Lords, if I may put this point—and I hope I am not talking too much—
A NOBLE LORD: My Lords, may I interrupt the noble and learned Viscount? I think if he asks leave of the House—
VISCOUNT DILHORNE: My Lords, with the leave of the House, I am only putting a question to the noble Lady, and I do not want to address the House at length on this. Supposing the surgeon in the hospital had seen the woman and given his opinion but he was very busy—we have had all the arguments on this—but there was someone else who was competent to perform the operation. This Amendment will enable him
1506
to say to his assistant, "I have seen the lady, the operation should be performed and you can do it." Then the assistant can do it without any further examination. I do not put this forward as any trick or trap; I think it will facilitate. I am content if the noble Lord will say that he accepts that it will be considered by the Commons. I say to the noble Lord, Lord Ferrier, that unless we put this Amendment in now, it cannot go into the Bill.
BARONESS SUMMERSKILL: My Lords, with the permission of the House, may I say that I did not realise that all the noble and learned Viscount is asking is that if the gynæcologist in the hospital has a list which is too heavy (and I am speaking of the operations list which is pinned to the wall), then he will ask for help from another gynæccologist; or if on that day he cannot perform his list of operations, then he will get somebody else to do it. But this surely does not have to be incorporated in the Bill. This is common practice in every hospital every day. In fact, very often the person who does it is the registrar. The surgeon telephones him and says he is sorry but he must go to see so-and-so (perhaps it is a wealthy patient) on that day, and asks the registrar to carry out the operation. So the registrar does the operation. Surely this does not have to be incorporated in the Bill. I did not realise that this was all that the noble and learned Viscount was asking.
LORD AIREDALE: My Lords, you have to incorporate it in the Bill. The noble Lady has pinpointed the lacuna which needs to be cured by accepting this Amendment.
BARONESS SUMMERSKILL: My Lords, I cannot follow why the Bill has to be amended in order to change the practice in the hospitals in these cases. The practice in hospitals, in all hospitals, is that the operation will be done in all probability by the gynæcologist or, when he is not available, by another who is available to carry out the operation.
LORD STONHAM: My Lords, if there is one thing which is clear from the discussion on this Amendment, I think it is that no one is quite sure of

1507
its effect—not a very good recommendation for accepting an Amendment! I entirely agree with the most reverend Primate that the hour does not matter. In fact, the hour now is young. But I would suggest that, in view of the lateness, or "earlyness" of the hour that it would not be to the credit of this House that we should agree to and pass a proposal when it is manifest that we are not in a position to say exactly what will be the effect or ramifications of that proposal.
As the amended clause now stands, it refers to two doctors, but they are, as it were, the two operative doctors, the essential minimum. But in most cases, as has been pointed out, it is likely that other doctors will play a part. It seems to me that the proposed Amendment would mean that in some cases there would be a minimum of two doctors (as provided in the Bill) and in other cases there would be three doctors who would play the actual official part, the statutory part. But that does not add anything practical to the application of the Bill, and always through our discussions we have had in mind first the pregnant woman and the child which may be born and, secondly, the doctors who have the heavy duty of interpreting the Statute. Therefore, if there is a proposal which, for example, adds nothing to the effect of the Bill, while it makes the thing a little more difficult to understand, I think that, on balance, we should not support such a proposal. Although I am in no better position than your Lordships to decide on the full merits of the proposal, it would seem to me unwise to accept it.
12.6 a.m.
THE EARL OF SELKIRK: My Lords, I may be awfully stupid, but it seems to me to be quite a simple point that was made by the noble Baroness, Lady Summerskill—that some doctor, when the matter has been decided by a medical practitioner, may in fact carry out the operation—
VISCOUNT DILHORNE: As the Amendment proposes.
THE EARL OF SELKIRK: As the Amendment proposes. As it stands, that is not possible, and it seems to me that
1508
this is a very simple addition to the Bill. Moreover, if we do not put it in, it cannot be further considered by the other place. It might easily be turned upside down, but frankly it seems to me perfectly straightforward.
LORD CONESFORD. My Lords, I express no opinion whether another place should or should not have a chance to consider this point, but I cannot believe that it is a wholly obvious thing with no conceivable disadvantages. One of the defects which, at first sight, it seems to me to have is this: that the medical practitioner who performs the operation has not himself to be satisfied of anything at all. That, it seems to me, is a rather important decision to make.
VISCOUNT DILHORNE: My Lords, with the greatest respect, he has to be satisfied that two other doctors—he is not one of them—have formed an opinion that these conditions are satisfied.
BARONESS SUMMERSKILL: That is basic.
LORD CONESFORD: He is all right if they have; but I cannot believe it is wholly unimportant that the doctor who performs the operation has not himself to be satisfied of any of the requirements laid down in the statute. It is perfectly true that the House of Commons cannot consider it unless we accept the Amendment, but I think I have drawn attention to one aspect which they might wish to consider.
LORD SILKIN: My Lords, by leave of the House, may I say a final word on this matter? Having heard the discussion, I am attracted by this Amendment, because it gives elasticity to the operation. As the Bill stands, it is very restricted; the operation has to be carried out by one of the two doctors who have expressed their opinions. This will enable another doctor to carry out the operation, if need be. The noble Baroness, Lady Summerskill, knows very well there will be many occasions when that will be necessary. For that reason I thought this Amendment ought to have a run. If we approve the Amendment, there will be an opportunity for it to be considered by the officers at the Ministry of Health and by the promoters of the Bill in another place. If they find

1509
that there is an objection to this provision, it will come back and we have the assurance of the noble and learned Viscount that he will not cause a constitutional crisis over it and this House will presumably reject it. But if it is an improvement, this is the last opportunity we shall have of making what looks like an important improvement to the Bill, so I would recommend the House to accept this Amendment.
12.10 a.m.
LORD SILKIN: My Lords, I beg to move that the Bill do now pass. At this hour I do not propose to say anything more than that, and I hope that nobody else will. I think that we have said enough about the Bill, and we shall see it again on Thursday. I hope that the Motion to pass it will be accepted.
Moved, That the Bill do now pass.—(Lord Silkin.)
VISCOUNT DILHORNE: My Lords, we have had a very long debate and covered a very wide field, and I propose to say very little upon this Motion, except that I think that the Bill, despite the Amendments which I have moved and the noble Lord has so kindly accepted, is now a far worse Bill than it was at the beginning of the day. We have decided to reverse two decisions on matters of, I think, great and important principle. I fear that the consequences will be bad, and if any of my noble friends wish to record their dissent from the Bill in its present form, I shall certainly join them in the Division Lobby.
On Question, Bill passed, and returned to the Commons.