HL Deb 10 May 1983 vol 442 cc439-56

4.2 p.m.

Lord Kennet

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Kennet.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord CULLEN OF ASHBOURNE in the Chair.]

Clause 1 [Prohibition of female circumcision]:

Lord Hunter of Newington moved Amendment No. 1: Page 1, line 7, after ("person") insert ("for ritual, cultural or traditional reasons").

The noble Lord said: With this amendment, Clause 1(1)(a) will read as follows: to excise, infibulate or otherwise mutilate any part of the labia majora or minora or clitoris of any person for ritual, cultural or traditional reasons", making it quite clear that this is something different from normal medical practice. I apologise for not being present at Second Reading, but I have read Hansard carefully and have noted the wide agreement for and unaminity towards the purposes of this Bill. I also noted that there has been a good deal of discussion about ways in which this Bill might be improved. I wonder whether this modification will clarify the position because, as the Bill is drafted, matters are dealt with the other way around. To clarify this point, I beg to move.

Lord Kennet

The amendment of the noble Lord, Lord Hunter of Newington, is of course the reason for this Bill; in broad terms, the Bill exists to prevent precisely that which is described in his amendment. But I wonder whether it is fair to the courts to move these words into the Bill. Let us just think what might happen if a prosecution is brought. The court has to decide whether the reason for the operation is ritual, cultural or traditional. An argument is then bound to develop between the prosecution and the defence as to what is enjoined by the culture or tradition of the patient and what is not enjoined by the culture or tradition of the patient; and about what the ritual commonly practised in the patient's homeland is and what it is not. I wonder whether that is a firm enough basis on which to expect a court to pass judgment. The rituals, cultures and traditions of the peoples where this operation is endemic are continuously changing. The evidence brought before the court might be out of date, or it might be held that it was out of date. The argument would shift onto even shakier sands.

This is why, when drafting this Bill in the first place, I thought that I should try to avoid subjective words such as "cultural" or "traditional" and try simply to define an action that was to be illegal unless certain defined persons declared positively that it was for the health of the patient. I still believe that it is better that way around. It will be more easily argued before the courts that way around. I hope therefore that, having heard the other side of the argument, the noble Lord, Lord Hunter of Newington, will agree that his amendment can be dispensed with.

Lord Hatch of Lusby

While appreciating the purpose of this amendment I support the objections made by the noble Lord, Lord Kennet, because my reading of this amendment is that it will weaken the Bill. The amendment tries to define three reasons for female circumcision, but there may be many more, and different words may be used. I can think, for example, of "religious" reasons. Such reasons might be covered by "cultural", but then they might not be.

As the noble Lord, Lord Kennet, drafted this Bill in order to avoid any ambiguity and any cultural offence, I suggest that by selecting these three terms—although I fully admit that they are the main terms which could be held to cover virtually all the causes—there is the danger that, in a court of law, other words could be used which might not be legally covered by the three terms included in the proposed amendment. For that reason, this amendment will weaken this Bill and I do not believe that any member of this Committee wishes to do that.

Lord Trefgarne

If I may, I should like to say a few words at this point about the Government's position. As the noble Lord, Lord Kennet, has said, the way he has constructed his Bill is to prohibit all operations on these parts of the female anatomy and then to provide certain savings in terms of medical necessity. The Government have a good deal of sympathy for the line proposed by the noble Lord, Lord Hunter of Newington, because, if for no other reason, it means that the somewhat draconian policing arrangements which are called into play by Clauses 2 and 3 of this Bill will not then be necessary.

I recognises that the noble Lord, Lord Kennet, has softened, or proposes to soften, those arrangements quite considerably. All the same, I am tempted to prefer the line proposed by the noble Lord, Lord Hunter of Newington. Indeed, as the noble Lord, Lord Kennet, knows, the Government have been consid- ering whether it would be possible to table our own amendments to achieve this purpose. I am sorry that, in the helter skelter of the weekend, this has not proved possible, although considerable efforts were made.

The Government position, then, is that while we are generally neutral to the individual amendments which now come before your Lordships, we certainly endorse the essence of that which is proposed by the noble Lord, Lord Kennet, in that we ought to put beyond any doubt that this procedure is unlawful. Having said that, I will leave the detailed consideration of these amendments to your Lordships.

Baroness Gaitskell

I utterly reject this amendment. It does nothing to improve the Bill which the noble Lord, Lord Kennet, has so courageously brought forward and which will make history at this time. To talk about the cultural attitude towards it does not make that attitude good; it still remains cruel and ignorant, and there is nothing to be said in its favour. The fact is that there are certain cultural customs that are not to be admired. With regard to its being traditional, if something is traditional and it is bad, do we have to go on with it? I have never heard of such a thing. It simply does not make sense at all. So I hope that neither the noble Lord, Lord Kennet, nor any of us will accept this amendment.

Baroness Jeger

This is a very difficult and sensitive problem and I think we all appreciate how the noble Lord, Lord Hunter, and the noble Lord, Lord Kennet, have endeavoured to meet it. On balance, however, I hope that the noble Lord, Lord Hunter, will not press his amendment. It seems to me we can only legislate here for the courts of this country, and how difficult it is going to be for the courts of this country if we put before them judgments which have to be made on the ritual, cultural or traditional reasons which are extant in other countries. I feel that is putting an onus on the courts that would be most impractical and most unfair, and, while appreciating the motives for it, I very much hope the noble Lord. Lord Hunter, will not press his amendment.

Lord Hale

I had not intended to intervene. I have much sympathy with what the noble Baroness, Lady Gaitskell, said. It is 40 years since I was in Kenya and was made aware of this practice, which applied in certain tribes and not in others so far as one could know, and particularly in the Kikuyu tribe, where it was a common practice in those days to see the woman of the household, often the grandmother, walking in front carrying an enormous sack, posho, on her head, and the young grandson smoking a cigarette and walking 20 yards behind. At that time Lady Summerskill wrote to me and asked if women's rights were looked after in the colonies I was visiting, and I gave her a very strong indication of this practice which appeared to have no possible explanation at all, except the enslavement of women by the deprivation of any form of sexual temptation. I do not know what we can do by legislation, except in this country; but one could at least perhaps think of trying to do something by education in other areas. It is an important subject; it is one that everyone has taken seriously and I know this House is anxious so to do. It is a very vicious practice.

May I just say one thing about our courts dealing with the terms of Lord Hunter's amendment. Only two or three days ago I was reading a brief account of A. J. P. Taylor's article on the criminal libel case in which the title of the criminal libel was The Cult of the Clitoris. He says that in the course of that stormy trial, which had juries going mad and judges beyond control—and Mr. Justice Darling is one of the 47,000 people in the black book who have been accused as a spy—the judge confessed, and the Director of Public Prosecutions added, that neither of them knew what the clitoris was and had never heard of it before the case. This was regarded apparently as an even graver circumstance.

Viscount Tenby

I must say I am 100 per cent. in favour of this Bill: "There is a destiny that shapes our ends rough hew them as we may."

Lord Hunter of Newington

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Masham of Ilion moved Amendment No. 2. Page 1, line 12, after ("fine") insert ("or to imprisonment for a term not exceeding five years or to both").

The noble Baroness said: For the convenience of the Committee, I would like to take amendments Nos. 2 and 3 together. These amendments, if agreed, will mean that if a person is guilty of an offence the possibility of a prison sentence will be included in the Bill, in Amendment No. 2 on conviction on indictment, and in Amendment No. 3 on summary conviction. These amendments will place female circumcision clearly within the context of Section 20 of the Offences Against the Person Act 1861. I have spoken to many people from all walks of life who have been shocked that female circumcision for non-medical reasons has taken place in this country. All people with whom I have discussed this Bill feel that a fine is not a strong enough disincentive to stop this practice from taking place.

If medical doctors are found guilty of an illegal practice they can be struck off the medical register by the General Medical Council. But how do we know there are not witch doctors and other people who might be interested in performing this mutilation? We live in a very complex, mixed society.

I have looked up the Offences Against the Person Act 1961. The section that covers bodily harm and intent to wound does not say anything about the performing of these acts with the consent of a parent. This is why I think we want a clear Act of Parliament which prohibits female circumcision for non-medical reasons. It is an extraordinary custom. If the Bill does not include the penalty of imprisonment it is lessening existing legislation, which I am sure is not the intent of this Bill.

My interest is to protect children and young people who sometimes are in the hands of parents or grandparents who, because they have been circumcised, think the next generation should suffer the same fate. It is a vicious circle of custom. Anyone who heard the cries of the children who had undergone the agonies of this mutilation must surely agree. If we legislate it is important to make it clear that these people taking part in performing or subjecting their children to this vile practice are at risk of going to prison. I beg to move.

Lord Kennet

The Bill as drafted does, of course, create an offence, and in order to put it beyond doubt that that is a criminal offence it does provide a penalty on conviction. The amendment only increases the penalty on conviction. We may want to do that in order to express a greater abhorrence of the practice concerned than would otherwise be the case. We may want to do it because we are trying to put it beyond doubt in the wake of the 1861 Act, which has not been applied to those who have committed these atrocities in this country. In that case we should want a prison sentence.

On the other hand there is this consideration. If we are talking about medically qualified people—a doctor, surgeon, or a nurse for that matter—who is convicted of the crime created by this Bill, that person is ruined. The professional bodies will not smile on his future career even if he is only fined. The disgrace should be sufficient to deter him from doing it again. Then we come, as the noble Baroness said, to the unqualified person—the "witch doctor" or the back street barber-type semi-trained midwife—who may not be deterred by a fine. We could say, as a counter argument, that she will be charging a great deal less than a surgeon, by definition, and that is why she gets the work. No one likes insanitary operations for their own sake. Therefore, she will be doing it quite a lot if she is to afford the kind of fine that is already in the Bill.

There are many pros and cons. I have not even mentioned overcrowding in prisons and the general considerations of penal reform. In short, it is an issue on which I, as the simple layman introducing the Bill, find it impossible to have an opinion. This is where I believe it would be helpful if the Government could tell us what, in their view, would be the best sort of penalties to have in the Bill.

Lord Trefgarne

I fear I cannot go that far, but I can say that I think it is important that the penalties provided for in this Bill are the sort of penalties that one would receive for comparable offences under other legislation and also that the penalties provided in the Bill are appropriate for the courts in which the offences will come to be tried, should that happen.

It is not certain that we have achieved that, either in the drafting of the Bill as originally presented or, indeed, in this clause as it might be amended by the amendments proposed by the noble Baroness. I should like to reserve the Government's position on that, but I cannot think that this is a matter of great substance standing between the noble Lord, Lord Kennet, and myself.

Baroness Ewart-Biggs

I should like to say a few words in support of the amendments. The way that society relates to and views a particular crime is very much represented by the measure of punishment which is doled out for that crime. At present we have and awful lot of offences which draw a fine. We are all liable to a fine most days. We park our cars for five minutes too long somewhere and attract a fine. Someone who is fined for an offence is socially completely acceptable, but someone who has been imprisoned for an offence is not socially acceptable. It is quite a different degree of punishment. There is a great divide between the offence of parking one's car for five minutes too long and someone who performs this operation. In my view, therefore, it is important to show that society views this particular crime as serious by adding to the Bill that it should be an imprisonable offence.

Lord Donaldson of Kingsbridge

I find it impossible to support this amendment on the ground that one should not invent new reasons for sending people to prison when informed opinion is perfectly clear that, first, it does not do them any good when one has done so, and, secondly, that it does not act as a deterrent to people who do not understand our mode of thought.

The technical people, such as doctors or nurses, as has already been agreed, would be properly punished by their own trade unions, so to speak, if convicted of such an offence. The less educated, less sophisticated, or, if you like, more ritually devoted people will not be affected in any way by being sent to prison. It is an entirely inappropriate sentence for either a priest who is doing something because he believes it is God's will or for a mother who is doing something because it happened to her mother. I believe it to be absolutely misguided at this stage to introduce imprisonment as a punishment for something which we all believe should be severely punished. It is our duty, and we are happy to support it, that the operation should be made illegal in this country, but not to the extent of imprisonment.

Baroness Hornsby-Smith

I support my noble friend Lady Masham of Ilton. I do not think that many English, or should we say Anglo-Saxon, horn doctors are likely to be inclined to pursue this type of operation. It is not unnatural to think that those who have been born and bred in a country where female circumcision was normal practice, who have qualified and come to practise in this country and whose whole environment and culture has accepted it as reasonable practice, are more likely to be the doctors who would perform these operations.

They are not likely to perform them in a National Health Service hospital. If a very strong-minded father or mother, with the old cultures instilled in them, wish it done to their daughters they are likely to pay for it privately, and perhaps quite heavily. To pay out a fine they will lose no face, but if they are sent to prison I am sure it will do more to bring home throughout the country that we do not accept this mutilation of women who are operated on where there is no medical need; that we do not accept it and that we are not prepared to accept it.

I think it should be for the courts to decide whether a fine or imprisonment is appropriate. However, I do not believe that a fine will bring home the depth of disgust and revulsion that we have towards this practice in the same way as sending people to prison. Many of these people, particularly those who are well established and seeking to maintain their old ideas and cultures, will be quite ready and prepared to pay considerable sums of money to have this operation performed. A fine will mean nothing. The courts should have the power to decide what the penalties should be and, however short a term of imprisonment, this will bring home the gravity of the crime far more than a fine ever could.

Lord Hatch of Lusby

I support both the amendments of the noble Baroness and I do so for two reasons. However, before I give them may I appeal to fellow Members of this House not to use the term "witch doctor" as it has been used. There is a great deal of misunderstanding about this term. Indeed, in many parts of the world what is better termed as traditional medicine is now recognised, and co-operated with, by what we might call modern or scientific medicine.

The two reasons that I believe can be adduced in favour of these amendments are, first, that it will strengthen and more clearly define the very passionate statement which was made to us by the noble and learned Lord the Lord Chancellor on the Second Reading of the Bill. He stated quite categorically that this operation was an offence under present law. One reason for this Bill is to make this quite clear, and it will only be made clear if the penalties are spelt out in the Bill as they were in the 1861 Act.

My second reason for supporting the amendment is that, as the noble Baroness, Lady Hornsby- Smith, pointed out, in these cases a fine is likely to have very little deterrent effect. I take the point of the noble Lord, Lord Donaldson of Kingsbridge, about our universal desire to reduce the prison population, and the doubts as to whether in certain cases prison is a deterrent. However, these amendments affect very few people. They will not increase the prison population by any substantial number, and in this particular case I do believe that imprisonment will be a deterrent.

I refer your Lordships to the comparison mentioned in the Second Reading debate between the danger of what may happen if this Bill is passed and what used to happen (and no doubt still does in a reduced number of cases) on abortion. There can be backstreet circumcision, as there was back-street abortion. It is not normally conducted by members of the medical profession—although we know that it has been conducted by them at a very lucrative rate. It is more likely that this operation will be performed by unskilled people who, once the Bill is passed, will certainly know that it is regarded in this country as a very important and serious offence. But they will know that only if this kind of amendment, which lays down imprisonment and/or a fine, is spelt out to them.

We also know that, as in back-street abortion, the fees paid for this kind of operation may well be very large. In that case, the fine will not be any kind of deterrent. We as the Parliament of this country should make it quite plain, as the noble and learned Lord the Lord Chancellor did, that this is considered to be a wounding offence—an offence of wounding against the person—and that the penalties for that are the same as those for any other kind of deliberate wounding. It is only if we spell that out clearly that we can attack the danger of the Bill being circumvented by back-street methods, which must be clearly defined as a grave offence against the person. I believe that these amendments—and this kind of amendment alone—will make this clear to the public.

4.34 p.m.

Lord McIntosh of Haringey

I fully sympathise with the strength of feeling which has led noble Lords to support this amendment—indeed, these two amendments. But I beg the House to think of it from the penological point of view and from the point of view of the appropriateness of custodial sentences. There are two kinds of people who are likely to commit offences under this Bill: first, those who do it for gain; and, secondly, those who do it for religious and/or cultural reasons. The majority of those who do it for gain will presumably be qualified medical practitioners, for whom it is correct to say that the threat of a fine may not be the overriding consideration. But the condemnation of their medical colleagues will be inevitable if they are convicted of an offence under this Act. They will certainly suffer far more severely from the disapproval of medical colleagues than from the fine itself.

Lord Hatch of Lusby

Does the noble Lord not realise that in the case of back-street abortions, many medically qualified people made a career of this, despite the fact that they were barred by the British Medical Council? As I am putting this to him, will he also consider that the likelihood is that back-street circumcisions will be performed professionally by many people who have no medical qualifications whatever?

Lord McIntosh of Haringey

I was about to raise that second category in my next remarks. Of course the condemnation of the law in this case will apply particularly strongly to medical practitioners. The problem about back-street circumcisions is not really an issue of the kind of penalty that should be imposed but whether such people can be found. I believe that is the consideration to which we should be confining ourselves.

So far as those who do it for ritual or religious reasons, again I really do question whether imprisonment is an appropriate penalty. I suggest that the question we should ask is, if imprisonment is to be imposed, are these the kind of people who will require secure custodial treatment or the kind who will go pretty well straight away into open prisons, where security is not the concern? Custodial sentences are for the protection of the rest of the nation and not for custody itself. Unless we are absolutely convinced that these people are a danger to the rest of the nation and should be locked away in secure conditions, we ought not to be creating new custodial offences.

Baroness Lockwood

I rise to support the amendments. I do so on the grounds that I think the nature of this offence is something which we must take into account. I very much appreciate the arguments of my noble friend Lord McIntosh of Haringey and others about custodial offences and not wanting to increase the prison population, but we are not today concerned with the reform of penal law. If we were, we should be looking at the whole range of penal offences. We are here to consider a Bill which seeks to outlaw a very serious offence and one which we do not want to see grow in this country. Therefore I think it is absolutely essential that this House should make it as clear as it possibly can to the rest of the country that this offence will not be tolerated. If that is so, the only remedy we have is the most serious remedy in our land—imprisonment. On those grounds, I support these amendments. I do so without prejudice to what I might say on a future occasion if we are reviewing the whole of the penal system.

Lord Donaldson of Kingsbridge

Before the noble Baroness sits down, may I point out that neither I, nor I think the noble Lord, Lord McIntosh of Haringey, gave the overcrowding of prisons—which we all admit to be disgraceful—as a reason for what we said. Both of us—I speak for myself, but I think for him also—believe that to send someone to prison, where it can do him or her no good, where it has no deterrent effect, and where the people do not understand the reason for it, is ridiculous, and we oppose it.

Lord Somers

I should like to say how very much I support the noble Baroness's amendment. It has been mentioned that female circumcision might be carried out for cultural or religious reasons; but when one comes to live in a country which is not one's own, one must first assume that one is going to obey the law of that land. Although we make very great allowances so far as religious and cultural practices are concerned, I do not think that in a case such as this that point should be taken into consideration. So far as the overcrowding of prisons is concerned, I quite agree that that must be considered; but, on the other hand, the offence will not involve very large numbers, and so I do not think that that consideration should stand in the way.

4.41 p.m.

Lord Kennet

The question is not whether all those convicted should or should not be sent to prison, but whether the courts should have available to them prison sentences to be imposed on those whom the courts consider it appropriate to deal with in that way. I was very disappointed that the Government were not able to tell us what to do. I am even more disappointed that I am not able to tell the Committee what to do. The Committee is full of wise heads, and many strong arguments have been advanced on both sides. On this occasion, when the arguments are so closely balanced, it would seem to be a time when it would be logical to have a Division. But I must say that I rather hope that there need not be a Division for a reason which I think will be obvious to all of those who have heard the debate. Although the measure is a non-party one, it is not absolutely clear that it is a non-sex one, as it were. So if those who are against the amendment are able to accept that it might be inserted in the Bill, at least at this stage, I should find that a very happy outcome.

Lord Donaldson of Kingsbridge

; I do not feel that either the noble Lord, Lord McIntosh of Haringey, or I wish to oppose the ladies, who are the people at risk in relation to the Bill. So, speaking for myself, I should not wish to force a Division.

Baroness Gaitskell

There is one aspect of this matter which has not been mentioned today. The primitive attitude to female circumcision rests not only on traditions, but on the male desire for the female to be pure for him. They will go to any length to achieve this, and they achieve it very well by cutting off the seat of pleasure. That is not only the most cruel, but also the most unkind, the most primitive, and the most important aspect of the matter which we should reject.

Baroness Masham of Ilton

May I ask the noble Lord whose Bill this is whether he said that he would be pleased to accept the amendment?

Lord Kennet

Yes, I should have made it clear that I am happy to accept the amendment.

On Question, amendment agreed to.

Baroness Masham of Ilton moved Amendment No. 3: Page 1, line 16, at end insert (", or to imprisonment for a term not exceeding six months, or to both.").

On Question, amendment agreed to.

Clause 1, as amended, agreed to,

Clause 2 [Saving for necessary surgical operations]:

Lord Kennet moved Amendment No. 4: Page 1, line 19, leave out from beginning to second ("the") in line 20 and insert ("a registered medical practitioner is or).

The noble Lord said: Having settled what is illegal and what punishment there shall be for those who break the law, we now pass to the question of who shall be entitled to perform what would otherwise be an illegal act, if he thinks fit, and why. As drafted, the Bill states that the operation may be done for the physical health of the patient provided that, two registered medical practitioners, not being members of the same practice", are of the opinion that it should be done. During the discussions which between the Second Reading and Committee Stage of the Bill have taken place in the customary way with various medical bodies and the Government, I have accepted the view which was put to me that that provision is too stringent. The view was particularly that of the Royal College of Obstetricians and Gynaecologists. I may add in passing that it was not the view of the British Medical Association, nor was it that of the Royal College of Nursing, nor the Royal College of Midwives.

It was, however, the view of the Royal College of Obstetricians and Gynaecologists which, after all, has a great deal to say in matters of this kind. The college stated that tens of thousands of operations which fall under the definition in Clause 1 are carried out every year for the physical health of the patient. The operations are typically for cancer and for pre-cancerous conditions. Why, the college asked, should a doctor have to obtain the opinion of another doctor, in another practice, before going ahead with what is a perfectly routine operation? I think that the college is right. That is why I commend the amendment, which will have the effect of requiring the opinion of only one doctor—and that is putting back the provision just as though it referred to any other operation—provided that in the opinion of the doctor or surgeon who does the operation it is done for the physical health of the patient, and not for any other reason.

There is one other point which I should touch upon in passing. It was also represented to me by the Royal College of Obstetricians and Gynaecologists that midwives should have the same right to perform the operation if, in their opinion, it was for the physical health of the patient, because the need to perform an operation of this kind could arise during an obstetrical emergency in the course of childbirth. I have looked into this point very carefully, and of course it is obviously so that a midwife alone with an obstetrical emergency must have the right legally to do whatever she has to do for the physical health of her patient.

The obstetrical procedure that we are talking about here is called episiotomy, and it consists of a cut into or down the perineum, which may be very slight, or it could be a considerable incision, which is afterwards repaired. It is a cut—and that is the key word. If Members of your Lordships' Committee will be so kind as to turn to Clause 1(1)(a), you will see that the word "cut" does not appear there. The words which are used are "excise", which means to cut out, "infibulate", which means permanently to sew up in an unnatural manner, and "mutilate", which means mutilate. The work which does not appear there is "cut". So I believe that I am safe in recommending the Committee to accept the amendment without any mention of the midwife, because she will be quite all right in the ordinary practice of her duties; the Bill will not touch here. I beg to move.

Lord Trefgarne

This clause, and the one which follows it, are the two clauses in the Bill which give the Government the greatest difficulty. I accept that the proposals contained in these amendments quite significantly improve the position so far as the Government are concerned, but we remain doubtful in particular about the requirement that the views of two psychiatrists shall be taken into account if the operation is to be done for reasons of mental health—

Lord Kennet

I wonder whether the noble Lord would be so courteous as to allow me to intervene? I apologise to the Committee. I had completely forgotten that the two psychiatrists referred to in the sub-paragraph were dealt with in the same amendment. No, indeed, they are not. I am right, and the noble Lord is wrong. The two psychiatrists are in fact referred to in Amendment No. 5, and at the moment we are on Amendment No. 4. If the noble Lord thinks fit, I hope that we can clear the position of a surgeon and the question of physical health under Amendment No. 4, before proceeding to consider the question of mental health under Amendment No. 5. Will that be acceptable?

Lord Trefgarne

The noble Lord is aware of the anxieties that we have about the particular matter which is addressed by this amendment, because we have discussed them privately together on an earlier occasion. I have to say that I am not entirely convinced by the arguments which the noble Lord adduced about the situation of midwives, which we would certainly wish to consider rather carefully. The noble Lord will remember the thoughts that I have put to him privately on that matter and I hope that he will allow me the opportunity of considering the words that he used in the Committee this afternoon in support of the assertion that he now puts to your Lordships. I was hoping to avoid undue discussion of the subsequent amendment by simply, in a very short way, expressing the Government's view on that, but I am happy to await another opportunity.

Lady Kinloss

I should like clarification on one point. What about sex change operations? Are they included?

Lord Kennet

What about sex change operations? Sex change operations are usually the other way round: they usually make women out of men and so the surgeon is cutting bits of men and not bits of women. I do not know whether that meets the noble Lady's difficulty?

Lady Kinloss

A friend of mine who is a consultant anaesthetist said that this should be put in under the exemptions.

Lord Kennet

I have to confess that I have not grasped the force of the noble Lady's doubts. Perhaps the noble Lady would formulate her worry more clearly?

Lady Kinloss

It was simply pointed out to me by a consultant anaesthetist that it should be clearly defined whether sex change operations are allowed or not.

Lord Hunter of Newington

This is a very important matter which, from my memory of Hansard has been overlooked. It is not correct that the change is always in one direction. I think that this matter should be considered.

Lord Donaldson of Kingsbridge

Is it not true to say that no doctor would perform a sex change operation except for the benefit of the health of the subject? Is that not covered by the Bill?

Lord Kennet

I think that is the case. If we are to tackle the difficult question of so-called sex change operations in an amendment in Committee to this Bill—which is for another purpose—let us first be clear that there is no such thing as a sex change operation. There are artificial constructions which can be made in the person of a man and on the person of a woman which will help them to live as if they belonged to the other sex, but in law and in biology they remain of the original sex. All right, they are called "sex change" operations for short.

I do not think that anyone would argue that such an operation should be carried out except for the health, either physical or mental, of the patient. The present amendment deals with those who have a right to declare what is and is not for the physical health of a patient. I do not believe that the so-called sex change operations come into the discussions on this amendment at all. They may come into the discussion on the next amendment, which deals with the mental health of the patient, and perhaps we could defer the discussion until we come to that amendment.

The Deputy Chairman of Committees (Lord Cullen of Ashbourne)

Does the noble Lord wish to withdraw the amendment?

Lord Kennet

No.

On Question, amendment agreed to.

4.55 p.m.

Lord Kennet moved Amendment No. 5: Page 1, line 22, leave out ("and") and insert— (";or (aa) two consultants in psychiatry are of the opinion that the operation is necessary for the mental health of that person; and").

The noble Lord said: We come now to the question of the mental health of the patient. When an African woman goes along and asks for a so-called circumcision in this country or anywhere outside Africa, she has to convince the doctor—if she goes to a doctor—that she needs it. The first reaction of any doctor in this country is, "No, I will not do that; it is abhorrent". But if she then appears very miserable until she gets it, in the conviction that she ought to have it because her custom demands it, then the doctor concerned may conclude that she is depressed and that the only way in which to remove her depression is to accede to her wishes and perform the operation.

It should be the purpose of the Committee to prevent that. It is too easy a way round what we wish to suppress. That, then, is one of the reasons why I have proposed the rather laborious procedure of requiring two consultants in psychiatry to give their opinion that the operation would indeed be for the mental health of the patient.

There are other cases. It has been presented to me and to the noble Lord, Lord Trefgarne, that there are some women and girls who get such a terrible itch in that part of their person that their life is rendered quite impossible by it, but there is nothing physically wrong with them, and that a surgeon may then say, "Well, I cannot cure the itch but I can remove the part which itches" and that in those cases he ought to be free to do so. There are also the cases which are reported—once again by those who speak for the Royal College—of girls and women who believe that they are not pleasantly formed in those parts and wish to have nature's work corrected. They may become so miserable about it that the surgeon may decide that the best way to relieve them of their misery—not of any illness because there is no physical defect—is to change the shape of their body.

It seemed to me that in that case the person who ought to be deciding about how ill the woman is mentally, how deeply depressed and how deluded she may be about her own shape, is not a surgeon at all but perhaps a consultant, or two consultants, in psychiatry and that is why I have put them into the Bill. Why two?—for the familiar reasons; familiar from the old abortion legislation—that one may make a trade of it, two are less likely to do so and, therefore, it is a greater safeguard. It is as simple as that.

I am not at all sure that I should tell the Committee that I have got it right. I am not at all sure that there have to be two psychiatrists and I am open to conviction that there need not be. For that reason I am disappointed again that the Government have not seen fit to put down an amendment which they could have agreed with the Royal College—since it is, I believe, the opinion of the Royal College which sways the Government on these matters—for our consideration at this stage. I have put an amendment down because I still think that this is probably the best way to proceed. I do not think that there will be many cases in a year of the kind that I have outlined. I do not think that the burden on consultant psychiatrists will be very great. There can be no question of an emergency. Nobody ever goes into a deep depression or suffers from delusion in an emergency. There is always time for a second or third opinion.

I submit to the Committee that probably the amendment has it about right. In the Bill as originally drafted there was nothing about mental health at all. The noble Lord, Lord Trefgarne, spoke about draconian policing arrangements. I admit that the Bill as drafted was draconian: it said physical health or nothing. Now it has changed to physical health on the decision of any one doctor, and mental health if two psychiatrists say so. In my view it is about right, and I would hate to go beyond that. I beg to move.

Baroness Jeger

Of course this is a non-party Bill and I must make clear that I am speaking only for myself. I would be appalled if this amendment were accepted. I very much hope that it will be withdrawn for further consideration. It seems to me that the noble Lord is scoring in his own goal because he is writing into the Bill other circumstances in which female circumcision is to be allowable. He is broadening the reasons for this mutilation to take place. It seems to me that, by accepting the fact that there are physical conditions—for instance, some forms of cancer—where it is necessary for an operation to be performed in this way, we really are opening the doors wide to abuse by suggesting that a couple of psychiatrists can find that it would improve the mental health of a woman to be mutilated.

There are all sorts of mental illness which have masochistic impulses in which people want to be hurt. It seems to me to be extraordinary to suggest that any woman who is so mentally ill that she wants to be hurt in this terrible way should have her wishes carried out as a result of professional advice. As for the noble Lord suggesting that there might be cases of malformation, in my view that comes under the physical problem. If it is a question of itching, that is a physical problem. These women must be helped, and they must be helped by the profession to resolve these symptoms, because in the cases to which the noble Lord has referred the problems are largely those of symptoms.

In fact, if I were to come across two psychiatrists who would certify that for the mental health of a woman she should be mutilated in this horrible way, I would suggest that they be sent to a couple of psychiatrists—in fact to the whole College of Psychiatrists—because the situation would seem to me to be quite unacceptable. The noble Lord said that he included two psychiatrists because he thought that one might be on a profiteering game, and that two would be less likely to be so. I can assure the noble Lord that, having lived through some of the bad old abortion days, if there were two doctors involved, there were likely to be twice as many abortions, and there is certainly no protection in asking for two opinions because one chap always asks another chap who he knows would be on the same side; there would not be any contradictory evidence.

Therefore, I hope that this amendment will not be pressed. I think that we must all consider this further, and try to work out if there are any ways of helping women who are in real distress; and I hope that that help will be constructive and not mutilating.

Baroness Gaitskell

I should like to say a few words about this. I think that we have been discussing certain aspects of female circumcision in an almost ridiculous way. When we speak of pruritus as a reason for circumcision, I do not think that there is any sense in what we are saying; it is ridiculous. There are any number of conditions where it exists and it does not need female circumcision. It is dangerous for us to speak as though we are doctors and specialists; we ought not to do it on this Bill. Because it is a good and a necessary Bill, we ought to pass the Bill without delving into all kinds of mental conditions. What mental conditions? We do not need to consider that matter. We should stick to the Bill and its limitations. If we go further, we shall make fools of ourselves.

Lord Trefgarne

Perhaps I could say to the noble Baronesses, Lady Jeger and Lady Gaitskell, that one of the difficulties is that the term "female circumcision" has come to describe a whole range of operations, from a quite severe total removal of the clitoris, as it is called, to something very much less than that. It is the difficulties with operations at the smaller end of the scale that we are here considering.

As the noble Lord, Lord Kennet, explained, the fact of the matter is that the best expert advice that we can obtain is to the effect that there really are difficulties here and there are certain circumstances—such as those described by the noble Lord—where, in the Government's view, a formalised requirement for a consultant psychiatrist to be involved is not necessarily appropriate. That, frankly, is the principal difficulty which the Government now see with the measures which the noble Lord, Lord Kennet, brings before the Committee at this moment. Therefore, I hope that he will not wish to proceed to get this Bill through its final stages because, as I say, the Government have considerable doubts about a good deal of it.

Baroness Masham of Ilton

I should like to ask the noble Lord the Minister whether he could ask his advisers how often an operation has been performed in this area for a psychiatric reason, because it is known that phantom pain can drive people to insanity, alcoholism or suicide. If it is a case of saving life, then perhaps such an operation should be performed.

Lord Trefgarne

With respect, the present legal position provides that these operations may take place, and I think that the onus for proving that some new constraint is necessary rests upon the noble Lord, Lord Kennet,

Lord Kennet

Let me attempt to do so. Let us suppose that I walk into a surgery and say, "My right arm hurts, I ask you to remove it"; the doctor says, "This is bad news", and he causes me to be subjected to every known physical test, and finds that there is nothing wrong with my right arm. He may then say, "You have a delusion", and I say, "It is not a delusion, it is pain". He may then say, "It is phantom pain. It would indeed remove the pain if I removed your arm". Would we not think that the surgeon who forthwith proceeded to do so would be very wrong if he had not consulted a psychiatrist before doing so? Of course, any sane, qualified surgeon would consult a psychiatrist in such a case. Of course he would.

In what way is my arm more valuable than the sexual parts of a woman which it is proposed should be free to be removed on the say-so of a surgeon alone when there is nothing whatever wrong with them? I am happy to withdraw this amendment and to leave the Bill in the condition in which it started; namely, that the operation shall be legal only for the physical health of the patient, and there is no let-out at all from that. If that is the will of the Committee—and I rather sense that it is the will of the Committee—then I beg leave to withdraw the amendment.

Lord Hatch of Lusby

Before the noble Lord withdraws his amendment, may I suggest to him that, in the intervening time between the Committee stage and the Report stage, or when the Bill is reintroduced, he considers this aspect of introducing an amendment which is based upon consultation with two psychiatrists for the mental health of the person. I think that we are in a difficulty here. I should like the noble Lord either to answer this this afternoon, or to consider it. None of us in this Committee is fit to understand the deep, psychological trauma that this traditional practice produces in its victims. None of us is capable of understanding the consequences of centuries of practice which have developed this custom. Therefore, none of us is capable of understanding what deep mental disturbance may be caused—indeed, is often caused—among young women who do not have this operation performed.

I should like the noble Lord to consider whether, by including the consultation with two psychiatrists, he may not be opening the way to the possibility that in certain cases two psychiatrists will find that young girls—who have not been circumcised but who come from a culture in which circumcision is considered to be an essential element in growing up, in becoming an adult and in being accepted as a member of the tribe or clan—can have such a deep mental depression if they are prohibited from circumcision that they will have to say, "In this case, for the mental health of the patient, it is necessary to circumcise". I should like the noble Lord to consider that possibility, because in my view the answer to it is not that we simply vilify the culture, or the tradition, but that the psychiatrists' job is to find the way to restore such patients to mental health without going through the process of circumcision.

Lord Kennet

The noble Lord asked me whether I agreed with him. The answer is, yes, I do. I entirely agree with him, and I notice also the Government's unhappiness about having those two psychiatrists on the scene; and that is why I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3 [Notification of operations under section 2, etc.]:

Lord Kennet had given notice of his intention to move Amendment No. 6: Page 2, line 14, leave out from ("be") to end of line 18 and insert ("separately recorded by the consultants concerned in a form which may be inspected by the Chief Medical Officer of the Department of Health and Social Security").

The noble Lord said: Amendment No. 6 is about what the consultants in psychiatry have to do in order to make their opinion accessible to the chief medical officer of the department. Since the consultants have not been written into the Bill, this amendment does not arise, and therefore I do not move it.

[Amendment No. 6 not moved.]

5.12 p.m.

Lord Kennet moved Amendment No. 7: Page 2, line 19, leave out paragraph (b).

The noble Lord said: We are back now with physical health. We are back with what the registered medical practitioner does when he considers the operation is necessary for physical health. Clause 3(1)(b) of the Bill as drafted is part of what the noble Lord, Lord Trefgarne, has called my "draconian policing arrangements". I think that in this case his description is justified. It is a hit draconian and I propose therefore to delete the paragraph.

This would mean simply that the surgeon would have the same right to do this operation to safeguard the physical health of the patient as he would to do any other operation, but the operation could only legally be done in a National Health hospital or in a registered nursing home, and in both places operation notes are automatically preserved. I consider that that is enough safeguard for the future, and therefore the extra arrangements in the clause of the Bill are not necessary. I beg to move.

Lord Trefgarne

; I am bound to admit that I find this amendment something of an improvement. As I have said in relation to earlier amendments, I do not think that it goes far enough, but as far as it goes I agree with it.

Lord Kennet

May I ask the noble Lord what he would think far enough? This simply allows the surgeon to do this operation like any other operation so long as it is in a sterile place.

Lord Trefgarne

I was speaking in general terms about the other improvements I should have liked to have seen in the Bill.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4 agreed to.

On Question, Whether the Title shall be agreed to?

Lord Kennet

I wish to speak at this point on what we should do next, given that Standing Orders are suspended, the election is coming up, and so on. I had thought that, if the Bill went through the Committee stage without too much trouble—and I think it has gone through the Committee stage without too much trouble and has been improved—it would be right to bring it before the House on Report and remaining stages either tomorrow or the next day. As I sense that that is the wish of the Committee, that is what I intend to do. I shall be in touch through the usual channels about it.

On Question, Title agreed to.

House resumed: Bill reported with the amendments.