HL Deb 07 February 1984 vol 447 cc1076-82

8.20 p.m.

Report received.

Clause 2 [Saving for necessary surgical operations]:

Lord Kennet moved Amendment No. 1: Page 2, line 1, leave out ("(1)")

The noble Lord said: My Lords, Amendments Nos. 1 and 2 are numeration amendments which pave the way to Amendment No. 3 and, with the leave of the House, I will present all three amendments together. Amendment No. 2: Page 2, line 2, leave out ("—(a)") Amendment No. 3: Page 2, line 5, leave out from ("abnormality") to end of line 18.

I should like to sketch in the background to this amendment. The Bill has had a somewhat unusual history, in that it was introduced for the first time in March 1983 into this House and passed through the House unamended under the last Parliament. During its passage through the House, the Government, then in the person of the noble Lord, Lord Trefgarne, who was the Parliamentary Under-Secretary at the time, said that they had various doubts about the Bill and wanted improvements in it, but they never brought themselves to table any amendments. However, they did tell me roughly what their doubts were. Of course, the Bill fell at the general election because it had not gone into the House of Commons, and I reintroduced it in June after the election in a slightly different form. I made two changes. In the first Bill there was a provision that two general practitioners must certify that an operation was for the physical health of the patient. Operations would only be legal for the physical health of the patient and if there were two general practitioners who would so certify.

In order to help the Government in what I thought were reasonable objections I made two changes when the Bill was presented in June, on Second Reading. They were, first, that the two general practitioners should be reduced to one; and, second, that physical abnormality should become a reason for legal operations.

After Second Reading the present Government asked me to meet them and told me in great detail, and with great courtesy and care, what it was that worried them about the Bill. They wanted to make eight changes and asked whether I would co-operate in those changes and move the amendments. The changes were, first, that the sentencing should be brought more into line with modern practice; second, that the offence should become an extraditable one; third, that the visiting forces Acts should apply to this offence; fourth, that the Bill should apply to Northern Ireland; fifth, that it should not be an offence if a demented woman attempted to carry out an operation on herself. I readily agreed with those five points. They were all clearly improvements and I have moved amendments on all of them which have been accepted.

Two more points gave me some cause to wonder. The sixth point was that the certification by even one GP should be removed: no certification should be required and only an opinion must be held and expressed by one GP. With those certifications the Government wanted the removal of the rather cumbrous provision for regulations to prescribe the circumstances in which certificates had to be preserved. The seventh request by the Government was that the limitation of legal operations to National Health Service hospitals or approved nursing homes should be removed from the Bill. After a good deal of thought and consultation, my noble friends who were interested in the Bill and I agreed that points six and seven should also be met in order to enable the Government to give its wholehearted backing to the Bill. Accordingly, I moved amendments and point six has already been accepted.

The eighth request from the Government was to ask me to co-operate with them in making mental health a ground for legal operations. After much consultation and thought, I declined to do that, and the Government therefore moved their own amendment —the only one of the points on which they moved their own amendment—and that amendment was rejected in Committee two weeks ago.

The amendments I have now tabled are the last in the series which I undertook to the Government I would move, and they have the effect of withdrawing the limitation on the places where legal operations may be carried out to National Health Service hospitals and registered nursing homes. That explanation, has been a little longer than I should have liked but the Bill is now getting a little complicated, I beg to move.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur)

My Lords, the Government are quite happy to see these amendments made. Indeed, we regard them as an improvement in so far as they remove the doubt that Clause 2 would otherwise have left about the legitimacy of minor surgery being performed by doctors in their consulting rooms.

I must make it clear to the House that the Government do not consider that this clause, even with the noble Lord's amendment, provides an adequate exemption for legitimate surgical operations. In the first place I am advised that it is at least arguable that the procedure of episiotomy which, as noble Lords will recall from our earlier debates, may be performed by midwives as a normal part of their practice, would fall within the definition of acts prohibited by Clause 1. The amendment does not cover this because it leaves the requirement for a registered medical practitioner to decide that the operation is necessary. Midwives do not as a rule work under the supervision of a doctor, and, when a midwife is practising independently, it is her decision whether or not an episiotomy should he performed.

The reason we have not proposed an amendment of our own to cover this point is that we do not consider that the grounds for surgery provided by Clause 2—namely, physical health or the rectification of abnormality—are sufficient to cover all the cases where it may properly be performed. Thus the clause would still be defective in our view even if it were put right on the question of midwives.

I am certainly not going to weary the House by reiterating all the arguments I put forward in Committee. I will simply say that the trouble with the phrase "rectification of abnormality" is that it presupposes an exact definition of "normality" against which individual cases could be assessed. The truth is that "normality", and its obverse, are not exact terms and their effect could only be to cause confusion and doubt for doctors and their patients in what is already a very sensitive field. Any noble Lord who rereads the report of our proceedings in Committee will see that this is the key issue and that we have not been trying to cater for what the noble Lord, Lord Kennet, suggested were "delusions of abnormality".

If, therefore, the Bill is now passed by your Lordships—as no doubt it will be—I think that the Government's position will have to turn in part on what the possibilities are of introducing further amendments in another place.

Baroness Jeger

My Lords, these amendments are very complicated and I am sure that all of us want to see this Bill go through with its original intention carried out; namely, the prohibition of female circumcision. I feel that we are being sidetracked by a great deal of talk about midwifery procedures which are not strictly relevant but which may be incidental. It is not very helpful that some of these considerations have been brought in. In my view they are not strictly relevant. We all know what we are trying to do. We are trying to stop this terrible mutilation being carried out in this country. We are not concerned with the accepted procedures carried out by professional people in the course of normal health care and midwifery.

I very much hope that the difficulties which arise over Clause 2 will not encourage the Government to throw cold water on this Bill. It is a Bill which the House has shown that it wants. If there are defects in a particular clause, I think that it is the duty of the Government to try to put things right so that in another place some of these anomalies and contradictions may be cleared up.

This is a Private Member's Bill, so I can speak only for myself, but I personally feel that there are some difficulties about the amendment. In the first place, Clause 2(1)(a) makes the registered medical practitioner responsible for having an opinion that the operation needs to be carried out; but by deleting paragraph (b) we do not say that the registered medical practitioner should carry out the operation. If he is of the opinion that the procedure is necessary, it would be preferable for the registered medical practitioner to do the work that he considers necessary.

We all know how often midwives are working without a registered medical practitioner. I am wondering whether at a later stage we could bring in a specific amendment to include registered midwives along with registered medical practitioners, so that the question of emergency procedures in childbirth is clearly spelt out. However, I must repeat that it was not the original purpose of the Bill to deal with these midwifery procedures.

I appreciate what has been said about the legality of minor surgery being carried out in surgeries or at home. It may well be that we could lose the requirement that these procedures had to be carried out in a registered hospital or nursing home. But that is as far as I should want to go in liberalising the situation, if liberalising is the right word. I am very worried that under Clause 2 some of the practices which we wish to avoid and to prohibit could be slipped in. If we make it possible for the operation to be carried out by someone who is not a registered medical practitioner or a registered midwife, surely we are back to the unskilled mutilation which is the very thing we are trying to prevent.

I know that we are very much behind schedule. I hope that nothing I have said suggests that I do not wish the Bill well, because I certainly do. But I very much hope that some of our anxieties will be taken into account to make the Bill even better in sending it on its way.

I should mention one small point. I think that we are taking all three amendments together. Amendment No. 2 states: Page 2, line 2, leave out ('— (a)')". It should be "line 3". I cannot find a paragraph (a) in "line 2". That is just to show that I really have read the Bill.

Baroness Gaitskell

My Lords, I shall be very brief and I shall not mince my words. The noble Lord, Lord Kennet, by this Bill, has shown himself to be one of the greatest benefactors to women in this age. We should be ashamed that we allow black women and other women from various countries to have the operation here. I believe that this operation should be made completely illegal here and not be allowed at all. It is just a continuation and prolongation of a completely ignorant attitude about female circumcision. All female circumcision should be made illegal, whether by doctors, specialists in hospitals, ignorant grandmothers, and so on. It should not be done under any circumstance whatever. I do not know why today we are contemplating it at all.

I have very little else to say. I think that I have made myself plain. Also I do not like doctors or hospitals interfering over the question of female circumcision and talking about cancer. It is irrelevant. Circumcision has nothing to do with cancer unless they start acting upon it. I repeat that I think that the noble Lord, Lord Kennet, is a great benefactor in this age. We should all praise him. Circumcision is an abominable operation and we should not have it in this country for any reason whatever.

Lord Kennet

My Lords, of course the situation is complicated. During the passage of the Bill through the House the Government have had eight ideas about how to improve it; seven of them have passed into the Bill amid general agreement and one has been rejected by the House. I do not think that is too bad a score for a Government on a Private Member's Bill. I hope that they will not regard the one out of eight which has been rejected as such a stumbling block that they will do anything to moderate their approval for the Bill in such a way as to make its passage through the House of Commons more difficult.

On Question, amendment agreed to.

8.37 p.m.

Lord Kennet moved Amendment No. 2:

[Printed earlier.]

Lord Monson

My Lords, as the noble Baroness, Lady Jeger, pointed out, this amendment appears to contain a printing error. Is there any way that we can rectify that at this point, or do we have to let the amendment go through as it stands and put it right on Third Reading?

Lord Glenarthur

My Lords, may I intervene briefly to say that I am advised that it is a matter of printing and nothing more complicated than that. I hope that the noble Lord, Lord Monson, will accept that.

Baroness Masham of Ilton

My Lords, may I just add a word to say that I hope we can get this Bill perfect before it leaves this House and goes to another place. I think that the Minister is not quite happy about it. I have great sympathy for what the noble Baroness, Lady Jeger, said. We have yet another stage, Third Reading. As we have spent so much time on this Bill, and it is not your Lordships' practice to send something that is not really right to another place, I am sure that with all the brains in this House, and if the Government really want the Bill to become law, they could make a big effort and get it right. I have this evening been to a party at the Speaker's House and have just heard that the operation is being performed at the London Clinic. I have also heard that it is carried out in Tower Hamlets and in Cardiff. It is important that we speed up the legislation and the Government take it under their wing.

Baroness Cox

My Lords, I welcome the fact that the Government have made so many constructive recommendations which have improved the wording, as I think the noble Lord, Lord Kennet, agrees, and that they have given the Bill such strong support. I take the point that has just been made that it would be a pity if the final points raised and reservations made this evening could not be considered a little further at a later stage.

I should like briefly to express two concerns which have already been mentioned. The professional concern which I must express on behalf of midwifery is that the Bill, as it now stands, could leave midwives vulnerable if they were to undertake a procedure and were not covered by the wording as it now reads in the Bill. I would just ask that perhaps consideration to tidy up that point might be given at a later stage.

The other point which I think concerns many people in regard to the rewording arising from the amendments is the danger that the loss of the reference limiting the places where the operation would be acceptable might open the way for back street procedures. I wonder whether some consideration or further specification of appropriate places might meet that point. But in general I think that we very much welcome the Government's support for the Bill, and we hope that the tidying up processes will make it acceptable to everybody.

Lord Glenarthur

My Lords, first perhaps I may say to those noble Lords who have so far taken part in the debate that the Government of course entirely share the sentiments expressed by the noble Baroness, Lady Gaitskell. We——

Baroness Gaitskell

My Lords, I am terribly sorry to interrupt the Minister, but I wonder whether he will speak up a little; I cannot hear him.

Lord Glenarthur

My Lords, I am sorry if I did not make myself audible to the noble Baroness. I should like to make it perfectly plain to all noble Lords who have taken part that of course the Government share the noble Baroness's distaste for female circumcision. What we are trying to do is not to allow female circumcision, but not to disallow one or two simple procedures which are nowadays carried out, or have been carried out for a number of years, by doctors, quite openly, quite legitimately, and quite sensibly. That is the purpose of many of the discussions that we have had not just tonight but also during the Committee stage of the Bill.

The noble Baroness, Lady Masham, said that it was not perhaps usual that we should pass on to another place a Bill which is imperfect. Indeed, we are not yet at the stage when the Bill goes to another place, and of course there will be room for further discussion upon it in due course. Nevertheless, I do not detract from what I said earlier when I spoke to Amendment No. 1.

I am grateful to my noble friend Lady Cox for her general welcome of the Bill. Yes, it is a technical matter. There are one or two points which I explained that we were not ourselves amending for the reasons which I previously gave, and which I shall not now repeat. But, yes, there will be a chance to discuss the issues generally later, at Third Reading, or when the Bill passes. I hope that there will then be a further opportunity. But as I said when I spoke to the original amendment, the Bill is in imperfect state. I cannot go back on what I said at the Committee stage, and I do not propose to go back now on what I have said this evening.

Lord Kennet

My Lords, the House is fortunate in that we are able to amend Bills at Third Reading. If there is a feeling in the House, shared by the Government that the Bill is imperfect in some way which has not yet been discussed at the Committee or Report stages—and that would of course apply to the midwife episiotomy question—then we have an opportunity to amend it at Third Reading. Naturally, I should favour an attempt which would seem to improve the Bill in this respect. If the present proposed timing in relation to the Bill—which is that we should have Third Reading within only a few days—is too fast, I should be perfectly happy to put it off, if the Government would be willing to prepare an amendment to achieve the desired effect.

On Question, amendment agreed to.

Lord Kennet moved Amendment No. 3:

[Printed earlier.]

On Question, amendment agreed to.

Baroness Trumpington

My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes to nine, when the House will resume for discussion of other matters.

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

[The Sitting was suspended from 8.44 until 8.50 p.m.]