HL Deb 23 January 1984 vol 447 cc72-91

7.20 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 HAYTER in the Chair.]

Clause 1 [Prohibition of female circumcision]:

Lord Kennet Moved Amendment No. 1: Page 1, line 5, after ("offence") insert ("for any person").

The noble Lord said: Amendment No. 1 hangs together with the second amendment to line 7, which is Amendment No. 4. Amendment No. 4: Page 1, line 7, leave out ("any") and insert ("another")

They both have the effect of providing better law for a case which I simply had not thought of when the Bill was drafted. I am indebted to the Government for these amendments.

As the Bill stands, it would make a woman who performed any of these operations on herself—if you can imagine such a mad case, but we have to imagine everything—liable to prosecution, and that seems an undesirable way to treat a person as gravely mad as that. This amendment and the one to the end of line 7 would avoid this anomaly by making the acts an offence only if done to another person. I beg to move.

Baroness Gaitskell

I should like to support the noble Lord, Lord Kennet. I think he is a great benefactor. I am entirely with him. We must prohibit this operation. There is absolutely no need for it at all ever, and it seems to me that we should not have it in this country. It is a regressive action, and we should utterly prohibit it. I hope that we shall.

I have very little more to say apart from one or two things. There is no medical reason for this operation at all; no medical or psychological reason. It is utterly had from beginning to end. I think it is extremely wicked to have an operation like this on women here, and particularly just because there are some women from other countries who go in for it. We do not need any teaching from the women in Africa or India who go in for this kind of operation. We do not have to copy them; we do not have to do anything. I hope that Lord Kennet will succeed in having it abolished completely.

On Question, amendment agreed to.

Lord Kennet moved Amendment No. 2: Page 1, line 6, after ("mutilate") insert ("the whole or").

The noble Lord said: This is a drafting amendment. It is evident that if you prohibit the doing of things to any part of something it may be that you have not covered the doing of those things to the whole of it. Therefore, I beg to move the insertion of the words "the whole or".

On Question, amendment agreed to.

Lord Kennet moved Amendment No. 3: Page 1, line 7, after first ("or") insert ("labia").

The noble Lord said: This is drafting again, and it arises out of the difficulty that the layman finds in knowing how to mix Latin and English grammar together, as you have to do from time to time when legislating about medical matters. I understand that it would be better if we changed this line in the way proposed in the amendment. I beg to move.

On Question, amendment agreed to.

Lord Kennet moved Amendment No. 4:

[Printed earlier: col. 72.]

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 5:

Page 1, line 8, leave out paragraph (b) and insert— ("(b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person's own body.").

The noble Lord said: This amendment does two things. First, it deletes the words in paragraph (b) of subsection (1) specifying the offence of procuring, taking part in or facilitating the acts listed in paragraph (a). This, as far as it goes, is a change of drafting rather than of substance. The reason is that we are advised that, if something is made an offence, as a general principle of law it also becomes an offence to aid, abet or procure it.

The wording which replaces this paragraph is consequential on the amendments we have just agreed. The effect of these is that acts performed by a person on herself are now excluded from the definition of offences in Clause 1. Accordingly, it would not be an offence for other people to aid and abet such acts. This seems to us undesirable, because a person charged with an offence under Clause 1 might then put forward the defence that the act was performed by the victim herself. The words of the amendment would preclude such a defence from succeeding so long as it could be shown that the defendant was party to the act.

The wording of the amendment is based on Section 1(1) of the Suicide Act 1960, which we think provides a suitable model for this purpose. I beg to move.

Lord Kennet

I should like to say that I support this amendment and would urge the Committee to accept it.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Saving for necessary surgical operations]:

Lord Glenarthur moved Amendment No. 6: Leave out Clause 2 and insert the following new Clause—

, Saving for necessary surgical operations.

("2.—(1) Subsection (1)(a) of section 1 shall not render it unlawful 'for a person to carry out a surgical operation on another person if that operation is necessary for the physical or mental health of that other person; and accordingly a person shall not be guilty of an offence under that section by reason of anything done in connection with, or with a view to, the carrying out of a surgical operation on another person in those circumstances.

(2) In determining for the purposes of this section whether an operation is necessary for the mental health of a person, no account shall be taken of the effect on that person of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.")

The noble Lord said: The distinction between the practices which go by the name of female circumcision and operations which are legitimate and necessary to a woman's health is the central and most delicate problem which the Bill presents. Perhaps I may preface my remarks by explaining briefly the objectives of the noble Lord's Bill as the Government understand them. The aim, as we see it, is to put it beyond doubt that female circumcision practised as a custom or ritual is a criminal offence, while avoiding any interference with legitimate medical practice. This raises sonic wider issues to which I shall want to turn in a few moments. But it is very important to keep a sense of proportion over this, because there are something more than 8,000 legitimate surgical operations on the female external genitalia—and perhaps many more—in any year, against perhaps a tiny number of female circumcisions.

May I perhaps now take the Committee through the new clause in detail and explain how it achieves the distinction we seek? So far as definitions are concerned, there is no difficulty about cancerous or pre-cancerous conditions and others for which surgery is clearly indicated on physical health grounds. The cases which present a problem—and they are a small but nevertheless significant number—are those in which a girl or a woman, otherwise perfectly healthy, becomes anxious and depressed about the shape or size of her external genitalia. This distress—which may become very acute and could lead to mental illness—can only be relieved by surgery, Such surgery—coloquially referred to as "trimming"—cannot be said to be necessary for physical health. It is from the woman's actual or potential mental illness that the need for it arises.

The noble Lord has recognised this problem in Clause 2(1)(a) by the phrase "rectification of abnormality". But this form of words leaves doubt about what is or is not physically abnormal—a view shared by the Royal College of Obstetricians and Gynaecologists. It would be quite wrong for any doubt to be cast over the position of women, black or white or of any ethnic group, requiring surgery for reasons which have nothing to do with the custom or ritual practice of female circumcision.

If the patient's mental health is to be admitted as grounds for surgery, then clearly some safeguard is needed to prevent its being used as a cover for female circumcision on the grounds that a woman's mental health would suffer if she could not conform to the prevailing custom of her community. Subsection (2) of the new clause covers this by preventing the surgeon from taking account of the effect on a person's mental health of a belief that the operation is required "as a matter of custom or ritual".

But the whole object of the Bill as introduced by the noble Lord is to prohibit practices which are confined to particular ethnic groups. If the new clause discriminates, then so does the Bill itself. It is for Parliament to decide whether the law should put beyond doubt that these medically unnecessary and repugnant practices should be prohibited in this country. If it does, the Government believe that the way to achieve this without interfering with any legitimate surgery is to include this new clause in the Bill.

Given that the clause expressly excludes anything which could be classified as female circumcision, we do not believe it necessary to retain the other detailed provisions of the present Clause 2. The only operations now exempted are those about whose medical justification there is no doubt. We see no need for them to be subject to special restrictions which do not apply to surgical operations generally. I should just mention here that an exemption limited to operations by registered medical practitioners is in any event too narrow since it could be argued that the definition in Clause 1 includes the procedure of episiotomy performed by midwives as a normal part of their practice. Since midwives also attend home confinements, a restriction to hospitals or nursing homes would present further difficulties, and equally we should not want to interfere with doctors performing necessary and proper minor surgery in their own consulting rooms.

The noble Lord, Lord Kennet, has tabled a manuscript amendment, Amendment No. 6A, and it might be convenient to refer to that now. I hope the noble Lord will have no objection. I believe the noble Lord is aware that this amendment only reached me at twenty minutes to seven o'clock and therefore what I have to say will be short. Nevertheless, I hope that it will make the point. I have not had time to consider the amendment as fully as I should have liked. Subsection (2) seems to me to be quite sufficient to prevent female circumcision from being brought in under the cover of the new clause. The additional subsection contained in the noble Lord's Amendment No. 6A would place a bureaucratic duty on doctors who are performing legitimate surgery without, as we see it, any commensurate strengthening of the safeguards provided by the new clause. I beg to move Amendment No. 6.

The Deputy Chairman of Committees

Amendment No. 6: leave out Clause 2 and insert the new clause as set out in the Marshalled List.

Since the amendment was tabled there has been a manuscript amendment to Amendment No. 6. Amendment No. 6A, in the name of the noble Lord, Lord Kennet.

7.34 p.m.

Lord Kennet moved, as an amendment to Amendment No. 6. Amendment No. 6A: After the words printed on the Marshalled List to insert a new subsection as follows: (3) In determining for the purposes of this section whether an operation is necessary for the mental health of a person a certificate to that effect shall be required from a member of the Royal College of Psychiatrists and a member of the Royal College of Gynaecologists.".

The noble Lord said: The Committee will be grateful to the noble Lord, Lord Glenarthur, for setting out in such careful detail the reasoning behind his very complex amendment. I am afraid that I have quite a lot to say about it and I hope that the Committee will bear with me if I do not hurry through what has to be said. I shall seek to persuade the Government not to press their amendment to a Division tonight. That is the course I hope to persuade them to take. However, I may not be successful in my desire to persuade them to do that, and in case I am not I have tabled a manuscript amendment, which has just been read out by the Deputy Chairman. First, I heartily apologise to the Government, and to the noble Lord, in particular, for the lateness at which my amendment was tabled. I regret to note that it took more than an hour to reach the noble Lord after I had tabled it. I am sorry about that and I do not know how it happened. It was certainly through no fault of mine or, I am sure, the noble Lord. In any case, I admit that it was tabled late and I apologise for the discourtesy to the whole Committee. It arose from discussions that took place only this afternoon and has been tabled because, in my opinion, it will alleviate some of the had effects of the Government's amendment, but it will not touch the main objections to the Government's amendment. The main had effect will remain. What that main bad effect is, other noble Lords and I will now explain to the Committee.

The Bill as drafted says that there shall be no female circumcision and no operations to those parts of the body except in the case of physical ill-health or physical deformity or abnormality. The noble Lord, Lord Glenarthur, put this very fairly in his opening speech. We are agreed that operations for cancer and pre-cancerous conditions—and indeed for any other sort of physical ill-health—should be permitted quite freely by any doctor. I should like to add that it is my understanding of the Bill that this includes episiotomy—routine episiotomies during childbirth are of course for the physical health of the patient—and as I understand the Bill they will be permitted to be done by midwives. There are various limitations towards the end of the Bill, as drafted; but they have all either been withdrawn already or will be withdrawn by a later amendment in my name. So, operations for physical ill-health, if I read my own Bill correctly, may be done by doctors or by midwives.

Then comes the question of physical deformity. As the noble Lord correctly said, some girls are born deformed or abnormal but may be perfectly healthy apart from that. I want to confirm what the noble Lord said to the Committee, that such operations are freely permitted under the Bill as drafted without any reference to bureaucracy, permission, certification, or being done in a special place. They are as freely permitted under the Bill as they are now.

I now turn to the new class to which the Government amendment addresses itself. These are girls who falsely believe, mistakenly believe, that their genitalia are abnormal and who get so depressed about it that, in the noble Lord's words "their distress can only be relieved by surgery". Let me emphasise this distinction once more. II they really are abnormal, even in the slightest way, the operation is freely available under the Bill. There is therefore no need for any amendment to the Bill. However, in the case of those who are quite normal, but believe they are not, the operation would be prohibited under this Bill and permitted by the Government amendment. Let us consider this.

The noble Lord said, if I noted him correctly, that there was "a small but not insignificant number" of such operations each year. I have certain questions to which I think the Committee would welcome an answer. How many each year? Roughly how many operations are carried out on girls who are deluded into believing in their own abnormality? What is the typical age of such girls? Are they not typically adolescent, or very young women indeed? What follow-up has been done in the medical profession on these operations? They are done to heal depression or mental distress. Do they do so? It is obviously impossible to say whether or not they do unless there has been a proper statistical follow-up. What follow-up has been done? Has such follow-up as may have been done included a proper statistical control group to see whether the linked delusion and depression of this type would not have cleared itself up without surgery?

In the event that the noble Lord has to reply that no proper statistical control group follow-up has been done, can he tell the Committee what other surgical procedures are in common use which have never been subjected to ordinary statistical controls afterwards to see if they worked? Only then will the Committee be able to judge whether an exemption is due in the case of this group of girls. In my opinion—I know that the noble Lord, Lord Rea, is to give a professional opinion shortly—it seems obvious that if an adolescent girl thinks she is deformed, but is not, then the right treatment is support, counselling, sympathy, possibly psychotherapy, but not surgery. If the depression is so deep-seated that psychotherapy and sympathy will not cure it, it seems pretty unlikely that surgery will do so either. A layman's understanding of psychotherapy suggests that the delusion and depression would merely transfer themselves to another cause, which would be equally groundless. However, that is for the Committee to judge.

I turn now to the means which the Government have chosen to secure the freedom of surgeons to continue with this tiny group of operations. It is so small that no figure has ever been named. As the noble Lord the Minister said, the means that they have chosen is to permit mental health as a ground for the operation but to exclude from the definition of mental health any depression or mental illness which is based on custom or ritual. I submit that this is what should stick in Parliament's throat. Quite simply, it means that white mental health is a good ground for the operation but black mental health is not.

Inadvertently the amendment would have a most unhappy racist effect. I know that that was not the Government's purpose in introducing it. This is not a Bill to put black people down and white people up, but to ban a form of cruelty and harm. It is a very great pity that the words "custom" and "ritual" should be making their first appearance in British law since the Catholic emancipation. In this country in the past 150 years we have not banned anybody's custom or ritual. We rejoice in the diversity and freedom of custom and ritual. It is unfortunate for legislation against the custom and ritual of certain immigrant groups to creep in via a humanitarian and public health Bill.

I am not an expert on race relations and it is not on my say-so that I put this to the Committee. I referred the Government amendment to the Commission for Racial Equality and asked for an opinion. The chairman has been good enough to let me have an opinion, which I shall now read to the Committee. It is dated 22nd December of last year and states: The Commission shares your concern at the formulation of the amendment. However well-intentioned in seeking to avoid any circumvention of the Bill's purpose, Clause 2(2) could be indirectly discriminatory in effect. A doctor, when assessing mental health as justifying the performance of an otherwise prohibited operation, will normally base his judgment on the patient's state of mind as he finds it. To suggest that some reasons for that state of mind may be acceptable and others, broadly confined to those which might affect persons of African origin or descent, are not is, in our view, discriminatory and therefore to be avoided".

That is a perfectly clear opinion from the statutory body which exists for the purpose that this amendment is racially discriminatory and is to be avoided. The opinion continues: On a more general point, so far as I am aware this is the first time, at least in recent years, that draft legislation has explicitly sought to exclude from consideration the relevance of a custom of an ethnic group settled in the UK. Any such exclusion or precedent would be undesirable on principle".

I sent a copy of the opinion to the noble Lord the Minister as soon as I received it, which was about two weeks ago because of the delay over the Christmas holiday. I feel sure the Committee will want to know his reaction.

I have this afternoon also received a communication from the National Council of Women of Great Britain which I have not had time to send to the noble Lord but I shall read it to the Committee: We have learnt with dismay of the Government sponsored amendment to your Bill dealing with the practice known as female circumcision. We welcomed and fully support the intention of this Bill, that the operation should be performed in this country only in cases of proven medical need or deformity. We view the amendment…as providing a loophole by means of which this intention could be circumvented. It would not be too much to say that it would wreck the Bill and we hope very much therefore that this amendment will not be accepted by the House".

I have also received messages to the same effect from the Josephine Butler Society and the Fawcett Society.

To sum up, I hope that the Government will not take the amendment to a Division today and will be ready to consider the arguments and representations from outside the House. I hope, too, that they will consider further—and, if necessary, discuss with me—the effect of my manuscript amendment to the amendment. I hope that we shall not inadvertently, perhaps by not having considered the matter fully enough, carry a piece of de facto racial discrimination into the law under the guise of public health and of kindness. In case a Division is contemplated, I might just say that this is a non-party matter if ever there was one. It is a humanitarian Bill and it is an intensely complicated matter. I am well aware that the situation, as the noble Lord the Minister and I have outlined it today, must be difficult indeed to follow. I judge that at present about 25 to 30 noble Lords are in the Chamber. I should very much regret, as I think would all noble Lords present, if in the event of a Division there was a very much larger tally of noble Lords voting, many of whom had not heard these complicated arguments. I beg to move.

Baroness Gaitskell

May I be allowed to ask the noble Lord the Minister one very small question? Does he agree that there is no need for female circumcision for psychological or medical reasons? It is thoroughly bad.

Lord Glenarthur

I entirely agree with the noble Baroness, but we are not talking specifically about female circumcision. We are talking about legitimate surgical operations as well as female circumcision. I thought that I had made that clear, as had the noble Lord, Lord Kennet, when he spoke earlier.

7.48 p.m.

Baroness Jeger

The Committee is in some difficulty tonight. As the noble Lords will recall, the Bill has, in effect, had two Second Readings. There was general welcome on all sides of the House for the Bill's intention. I very much hoped that it would go smoothly on its way; but it is totally necessary to oppose the Government amendment on the grounds that they have introduced the term "mental health" in the amendment. The original provision referred to "physical health", which covered all the points raised about the possibility of cancer, deformity and other difficulties. We were totally agreed about that. Suddenly we find the words "mental health" in the amendment. This is most unfortunate. It takes the Bill's intention into very shadowy places. It is an invitation for every charlatan in London to crawl out of the woodwork and say, "This woman has a mental difficulty".

Some of us are old enough to remember the difficulties with the old abortion legislation. If a woman had the money to go to a psychiatrist in order for him to say that her mental health would be disturbed if the pregnancy continued, she could get a certificate and have a legal abortion. That opportunity was not open to a poor woman in a back street who did not know what a psychiatrist was. I believe, too—and I have spoken to many doctors about the point—that the situation puts doctors in a very difficult position because the judgments are very subjective, very difficult, and shadowy.

With regard to the amendment which the noble Lord, Lord Kennet, has tabled so late, I appreciate that he believes that, if he introduces people with a little more psychiatric clout, it will be all right, but I find that quite unacceptable. I believe that there may be many doctors who are members of the Royal College of Psychiatrists who know very little about anthropology or the basic problems involved in this question.

In adolescence there can, for all kinds of reasons, be distress and difficulty for both boys and girls. If a girl produces a particular reason, she may well be stressing the focus of her depression while being quite unaware of the cause of it. It may be that family pressures to have circumcision are the real cause of her depression and anxiety. It may well be that the cause arises from the fact that the girl has failed her O-levels, or that she has had a row with her boyfriend. The reasons for depression, worry and anxiety in adolescence are legion.

Let us suppose that there is found a psychiatrist who will say that a girl's anxiety about her external organs is causing severe depression and therefore female circumcision is legal in the particular case. What happens if after the mutilation the girl is still depressed, because the cause was not properly diagnosed? She may still not be in love with her boyfriend: she may again fail her O-levels. Yet she has been mutilated at a time when she should have had sensitive psychiatric help, sympathy and encouragement. There are all kinds of emotional strains during adolescence, and if the words "mental health" as they appear in the amendment are to include emotional problems and difficulties as legitimising in this country this dreadful mutilation, it will be a disgrace if your Lordships' Committee pass it tonight.

Moreover, if the Government are spelling out that the operation would be illegal if required as a matter of custom or ritual, that would be very dangerous. The noble Lord, Lord Kennet, has put forward a point of view with which I largely agree. But there is another problem. The existence in the amendment of a phrase relating to custom or ritual would alert the patient, the relatives and the person who is to perform the operation that they must not use excuses relating to ritual or custom. So when they go to the psychiatrist they will not mention those matters because they will know that to do so would mean that the operation would be illegal. Instead, they will go on about depression, misery and all the other things which can come under the heading of mental health. It seems to me that, if we pass the amendment, we shall be supporting—I am sure unwittingly, so far as many of your Lordships are concerned—superstitions which come from witch doctoring and all the things that we are trying to get rid of.

I do not think that the noble Lord's manuscript amendment is very helpful because in my view we should exclude from the Bill the mental health aspect. We should try within the field of physical health to take care of distressing abnormalities. Where there are mental and emotional difficulties they should be dealt with not by mutilating surgery but by the more sophisticated and professional methods which I hope a psychiatrist would wish to use.

I want to make only one more point. I know that there are strong feelings based on racial points of view. However, I would remind the Committee that in countries such as Kenya, the Sudan and many others there are brave rulers, brave doctors, and brave nurses and midwives who are there standing up against this mutilation. If they cannot have from us encouragement in outlawing the procedure in this country, we shall be letting down a movement for freedom for women in many countries of the world where the practice has been a tradition.

I hope that the Government will take away the amendment, but, if they persist in putting it before the Committee, I shall certainly not be able to support it. This is a free vote—I must make that absolutely clear—I am speaking for myself, and I very much hope that the Government will not be able to carry the amendment tonight.

Lord Glenarthur

Perhaps I may briefly intervene because I think that the noble Baroness may be under a misapprehension which could confuse other members of the Committee. The fact is that Clause 1 of the Bill expressly states that to excise, infibulate, et cetera will be against the law. The new clause which I have described simply allows the legitimate surgical operations to go ahead. It does not allow female circumcision in its broader sense to go ahead. So I hope that the noble Baroness is quite clear on that point.

Baroness Jeger

I am not sure whether the noble Baroness is clear on that, but I think that we must ensure that all your Lordships are clear that the reference to mental health permits surgery on grounds of mental health, and should not be acceptable to the Committee.

Baroness Cox

I should like very briefly to add my voice to those who are concerned about the inclusion of the words "mental health", very largely merely to endorse the arguments that have already been put. I am deeply concerned because, though I understand the arguments that a girl may be very depressed, perhaps even to the point of being potentially suicidal, because she perceives herself as having a physical abnormality, if she does not actually have such a physical abnormality, it seems a very inappropriate treatment to subject her to a mutilating operation. Surely the more appropriate treatment is that which has already been endorsed: that she should be referred to those people who can help her with her mental disorder. I think that that is particularly important because the very nature of the situation as it pertains to someone who explicitly has no physical abnormality is that it is a delusion or depression. Therefore, even if she were to have the operation—which I am in no way suggesting she should have—it is likely that some other focus for the depression would emerge in due course. Thus the operation itself would very likely not be therapeutic, but would just leave permanent physical damage.

I should like to say that I am rather perplexed by the reference to episiotomy, because it seems to me that episiotomy is performed for medical reasons, and also, when appropriately carried out, does not leave any permanent mutilation. So I fear that I fail to see the relevance of bringing in episiotomy in this context. Therefore I regret that I cannot support the amendment as put forward by the Government.

Lord Hatch of Lusby

So far in both considerations of the Bill, before and after the election, all sides of the Committee have been meticulous in avoiding any value judgments on the customs of other people. I am afraid that by introducing the term "custom or ritual" the Government have broken that general agreement, and I hope that they will recognise that that is dangerous to the Bill. It is also dangerous to our relations with other countries, and it is particularly dangerous to the relations between the Government, and indeed Parliament, and the ethnic minorities in this country. That is of course no defence of the practice of female circumcision.

I would support totally what the noble Baroness, Lady Jeger, has said about the bravery of medical people, and indeed political people, in other countries where female circumcision is common. I have personal experience of this. When, in 1962, I was deported from Sierra Leone for mentioning the existence of female circumcision, this did not lead, as it has frequently done in other countries, to a blanket removal of any reference to the practice of female circumcision. It led to a national debate in which the major nationalist figures came out against the Government and supported me in saying that if the Government could not answer my case then they had no right to close my mouth by deporting me. Fortunately, that country has since redeemed itself by removing the deportation order and I have been accustomed to returning to it for the past 16 years.

I beg the Minister to recognise the gravity of the case that we are putting. What he has said about the anxiety and the distress—I am quoting him here—which can be caused particularly to young girls by the shape or the size of their genitalia and the depression that may then result is surely a matter, as the noble Baroness has said, for the psychiatrist, for the counsellors and for the family. It is not a matter for surgery or for surgeons. If that is the case with What are largely the depressions of white people, how much more is it the case among the ethnic minorities who come from countries where female circumcision is the recognised practice and is, indeed, virtually a religious practice.

It is surely obvious that many young girls may suffer intense depression and intense mental agony because they are bound to be unlike those among whom they mix, their friends and their relatives. Is this, then, to be a question of mental health? According to the Government amendment, the answer is, no. That is, as the noble Lord, Lord Kennet, has already pointed out, a matter of clear racial discrimination, or what would more clearly be colour discrimination.

I beg the Minister to take this amendment back and to think about it again before Report stage. Just as white girls are depressed because of a false view of their genitalia, so, when black or brown girls are depressed, the same treatment should be made available. I make a specific proposal. I suggest that the Government get in touch with Professor Lambo of Nigeria, who was Vice-Chancellor of Ibadan University, now deputy director general of the World Health Organisation, who is an African psychiatrist, and seek his advice. They should ask that he suggests suitable psychiatrists to be available to the Government in this country to give advice in these desperately complicated and tragic situations. They are complicated and tragic. I have never understood why that noted social anthropologist Professor Malinowski gave his approval to Jomo Kenyatta's book Facing Mount Kenya, a large section of which was devoted to a defence of female circumcision. But by doing so he showed the complications—the psychological, the spiritual and the social—which underlie the whole question of female circumcision in certain societies.

Quite frankly, nobody knows why, if there is any general rule that supports this practice. But if we have in this country—and it is undoubtedly the case that we have—young girls and women who come from societies where it is a disgrace not to have suffered female circumcision, then those are girls, usually British girls, for whom we are responsible. That responsibility is not carried out in this Government amendment. The distinction between subsections (1) and (2) is clearly discriminatory. Subsection (2) does not provide the kind of care and help which the Government should be providing and which we, as a Parliament, should be providing for girls who are put in this very difficult position.

I beg the Minister to take back this amendment before Report stage and at least to give it consideration with the help of those who understand people who have lived in countries, and who have studied the societies, in which this practice takes place.

8.5 p.m.

Baroness Masham of Ilton

I quote from a recent article in the Nursing Times, headed "The unkindest cut": Female circumcision is political. It is about the oppression of women by men and an abuse of human rights, performed on the victim before she is in the position to choose rationally what her fate will be. Yet, when women from some other countries come to settle here in Britain they want to have their daughters circumcised. They will group together to preserve the customs of their country and culture. This is a very complex matter. I am sure that if we manage to pass satisfactory legislation, education will have to continue among these groups of people, many of whom may not speak or understand English well, if at all, but who must and should abide by our humanitarian standards. I think that everyone in the Committee is of the same mind, that female circumcision is nothing less than genital mutilation and will not be tolerated by us.

The amendment before us, in the name of the noble Lord, Lord Glenarthur, is far from clear. In fact, it seems to fog the issue. The amendment states that it, shall not render it unlawful for a person to carry out a surgical operation on another person if that operation is necessary for the physical or mental health of that other person". Does that mean that anyone is free to carry out an operation anywhere if they think that someone needs it for any reason, without any safeguards? The amendment does not even say, "for the good health or wellbeing of the person". "A person can be anyone. How are they to know if an operation is necessary if the people are not medically trained? The amendment does not say that they have to be trained. I have shown this amendment to several doctors in the past few days, a gynaecologist, a neurologist, two paediatricians and a general practitioner who was a senior registrar in urology. All say that there are too many loopholes in this amendment and have queried why the Government have put in "mental health". If this is for sex changes should it not be clearly written in? What other mental cases are operated on?

The cases the noble Lord, Lord Glenarthur has mentioned seem to be abnormalities already covered in the Bill. If mental effects are to be written in, they should be more clearly defined to clear this confusion. I should just like to query the second section of Clause 2. I think perhaps Clause 2 could be widened a little to include small operations which may be carried out in the doctor's surgery or in the home by a doctor or midwife. I do hope the Minister, having listened to the arguments, will take this amendment back and reconsider the whole matter. Many other countries are taking an interest in this Bill and are trying to persuade their Governments to legislate against female circumcision. If we do not get this Bill clear and workable, it may do more harm than good; not just in Britain but in other countries who are watching our legislation.

Lord Rea

It may be of help at this point to describe what is generally thought to be good professional practice with regard to operations of a cosmetic nature on normal human anatomy on mental health grounds such as we are discussing tonight, and which comprise the operations which this amendment is supposed to safeguard. If a patient requests such an operation because she feels distressed or depressed about the shape of her body and wants it changed surgically, the proper procedure is to refer her to a psychiatrist for an opinion about her mental health. I am sure this is the opinion of most doctors and I have confirmed that I am backed fully by the ethical committee of the British Medical Association on this point. In the National Health Service it nearly always the practice that a psychiatric opinion is sought. I wish I could say as much for the private sector. The psychiatrist may be able to advise more appropriate treatment, taking the total interests and background of the patient into account, and I think the noble Lord, Lord Kennet, and other have described how this should be done.

On the other hand, it may be that the psychiatrist decides that the symptoms could in fact be appropriately allieviated by an operation. At this point I should say that many psychiatrists would welcome a blanket prohibition of operations on normal female genitalia since their decisions are often made under great patient pressure. Today, in fact, I was approached by a mother of four who sought augmentation of her breasts. She has perfectly normal breasts. They were not as big as they once were, but they were not abnormal, and I was put under some pressure by this lady. I eventually referred her to a plastic surgeon who I knew would seek a psychiatric opinion before operating. This lady is expecting that a long standing depression is going to be cured by this operation. I am quite sure that she is wrong.

The amendment as it stands, contains no requirement that a psychiatric opinion will be obtained to confirm that there are proper mental health grounds for any operation to be done on such grounds. Apart from the discriminatory nature of the wording which is being discussed, the amendment is not sufficiently clear on this point. For ethical and professional reasons, I should like to ask the noble Lord the Minister to withdraw the amendment at this stage for further consideration. Should Amendment No. 6A, which has been put forward as a stopgap by the noble Lord, Lord Kennet, be carried, it would create, as the Minister himself has said, a somewhat bureaucratic procedure and we should not like to have to press this amendment.

Baroness Vickers

I should just like to ask two points: why do we have to leave out registered medical practitioners? Secondly, why are we not mentioning national health hospitals and registered nursing homes? I think that it would be very helpful to have both of those put back into the Bill because I think it is essential that we use these two services.

Lord Kennet

It may be convenient to the Committee if I say another word at this point. As I understand the procedure—and I shall no doubt be corrected if I have got it wrong—Amendment No. 6A, being an amendment to an amendment has to be taken first and then there will be a separate vote on the main amendment whether or not it has been amended by Amendment No. 6A. I see that the Deputy Chairman nods so I am glad that I have that right. I hope the Government will feel able to take the unanimous advice of those who have spoken in Committee and not press the main amendment tonight.

May I just say very briefly in answer to Lady Jeger that I know she does not like my amendment with its reference to two psychiatrists. Nor do I. It is not a good plan at all, but I disliked the Government amendment even more. It seems to me that if we are to institute this freedom to operate on white girls, racially discriminating, the least we can do is to make sure that there are proper psychiatric opinions to back it up. I commend the amendment to the amendment to the Committee as something which will slightly alleviate the fundamentally bad effects of the Government amendment.

Naturally, if the noble Lord is able to tell the Committee that he will not be pressing his amendment to a Division tonight, then there will be no need for me to move mine formally and to press it to a Division because the amendments can be taken away and looked at together.

8.18 p.m.

Lord Glenarthur

We have had a lengthy debate on this amendment and on the amendment of the noble Lord, Lord Kennet. I should like first of all to explain more fully why we do not accept that the new clause discriminates on racial grounds in the way that the noble Lord, Lord Kennet, has described, and in the way that the noble Lord, Lord Hatch, also went to great lengths to explain. The noble Lord, Lord Kennet, and the noble Lord, Lord Hatch, particularly addressed themselves to the words "of custom or ritual" which appear in the new Clause 2. He said, if I understood him right, that those words should stick in Parliament's throat; but it seems to me that the essential purpose of the whole Bill as presented by the noble Lord, Lord Kennet, is to prevent acts of cruelty or harm from being performed under the cloak of custom or ritual. That is the essential purpose of the Bill which the noble Lord has introduced.

Lord Kennet

I hate to interrupt the noble Lord the Minister and I will try not to do it again. My purpose is to prevent acts of cruelty and harm—the cloak is not particularly important—wherever it appears: white or black Christian or Moslem, animist, whatever you like.

Lord Glenarthur

Cruelty or harm is implicit in the custom or ritual in this particular sort of operation. As I said, this custom or ritual is implicit in the title itself, since the term "female circumcision" has no precise anatomical significance. What it does signify is the customary or ritual character of the acts to which it refers. I submit that interference with that sort of custom or ritual is inherent in the basic purposes of the Bill. What we are saying is that these particular customary practices are not compatible with the culture of this country. I do not see this as attacking any racial group; on the contrary; we are saying that girls and women living here should have the protection of the law against practices which, whatever sanction they may enjoy in other countries, are thoroughly repugnant to our way of life, and this seems to be a view which has been expressed by the Committee this evening.

Baroness Seear

I am sorry to interrupt the noble Lord the Minister but is he really saying that he is taking no notice of the express opinion, carefully rendered, of the Commission on Racial Equality? This is, after all, the commission set up by the Government to examine questions of this kind and to give an authoritative judgment on how clauses of this kind appear—at any rate to those directly concerned with race relations in this country.

Lord Glenarthur

What I am saying is that of course, as the noble Lord, Lord Kennet, said, we have seen the comments in the letter to which the noble Lord referred, we have examined them and they have been discussed by the Government. But we stand by the view that I had started to express and will continue to expound now. I do not want our discussion to dwell at length on unnecessary anatomical or clinical detail, but it is important that your Lordships should know exactly what would happen if my amendment is not accepted.

The noble Lord, Lord Kennet, has suggested that the amendment is discriminatory in effect and that it has been introduced to satisfy doctors who wish to carry out operations on the external genitalia of white women who develop imaginary phobias about their external parts. The reality is very different. The Government's amendment is designed to benefit women of all ethnic groups who suffer or who may suffer from mental ill health because some part of their external genitalia has become excessively large, but where there is no physical cause for their ill health.

Lord Kennet

I promised not to intervene again but I must break my promise. If the girl's external genitalia are excessively large an operation is freely permitted under the Bill as drafted.

Lord Glenarthur

I can expand upon that at length. The matter comes later in my speech, but in essence the fact is that we are faced with the problem of defining "abnormality" and if I may I would like to come back to that particular point later on.

Those women to whom I was referring a few moments ago—and there are not many of them—become acutely conscious of their body image, if that is the correct phrase, because of the excessive size of some part of their external genitalia and that may, in schoolgirls, come about as a result of teasing or ridicule by their peers. In such circumstances it is small wonder that they become increasingly anxious and depressed about their own external organs and this may easily lead to mental illness. I am advised that the Royal College of Obstetricians and Gynaecologists consider that surgical correction is the appropriate form of treatment—not psychotherapy in the way that the noble Lord suggests. The women in these cases are not suffering from any delusions, but there is no exact definition of "normality" by which they could be said to be abnormal. The range of "normal" is very wide and if we rely on it it will leave a doubt about the position of the women I am describing.

The Government believe that there must be no doubt in the medical profession's mind about whether such women may be lawfully operated upon in this country. The risks of mental illness to them are considerable despite the fact that there is no physical abnormality. The amendment before the Committee has been drafted to prohibit those operations which we and the noble Lord, Lord Kennet, wish to prohibit—an aim with which the Government are completely in sympathy.

However, we do not wish to cast doubt upon the legal status of what I described earlier as "trimming" operations, the need for, or the lawfulness of which, has not been called in question until debated on this Bill. Let me stress that no one has produced any evidence whatever of abuses in this type of surgery and the question of legislating about it would never have arisen had not the quite separate issue of female circumcision come to the fore.

There is simply no case for interfering with the type of legitimate surgical operations which I have described. It is not a question of protecting the freedom of surgeons but rather the rights of patients to have surgical treatment when that is what their condition requires. The problem is that while the distinction between this legitimate surgery and the traditional practice of femal circumcision is quite clear in commonsense terms, there is no precise anatomical definition which would admit one and not the other. That is why we need the provision for surgery on mental health grounds together with the qualification contained in subsection (2).

I repeat: there is no racial discrimination in this. The grounds for surgery provided by subsection (1) apply equally to everybody whatever their colour or ethnic group. Subsection (2) in referring expressly to operations performed as a matter of custom or ritual, merely defines more exactly what is already the implicit purpose of the Bill. We do not think that that constitutes discrimination. If it does, as I said earlier, the discrimination is already there in the Bill. What I think the noble Lord was saying when he spoke earlier is that it ceases to be discrimination if it also catches some other activity which has nothing to do with the real purpose of the Bill. With respect, that is not a sound principle for legislation.

Various other points were brought out and I think it only right—although I am acutely aware of the time that this is taking—to comment on some of them. The noble Baroness, Lady Masham, referred specifically to the definition of the word "person". The implication here is that the exemption should be limited, for example, to operations performed by registered medical practitioners—I think that this was the point the noble Baroness was making—as in the existing Clause 2. There is, in fact, no general legal rule that medical treatment or surgical operations may be performed only by registered medical practitioners—and I must confess that until I became involved in this matter I was not aware of that fact myself—although it is illegal for anyone to claim to have qualifications which he does not in fact possess.

The operations exempted by Clause 2 are, by definition, not female circumcision because that is expressly excluded by subsection (2). They thus form part of the normal practice of surgery and it would not be right to subject them to restrictions which do not apply to surgery generally. So, while there may be room for debate on the particular issue which the noble Baroness raises, I submit that the Bill is not the place for it.

The noble Lord, Lord Kennet, asked me a number of questions about numbers. When I spoke earlier to my amendment I gave the noble Lord the figure of about 8,000. We do not have the information that he requested on the follow-up for these types of operation, nor do we have it for most other types of surgery. Successive Governments have always seen the necessity for surgery as being very much a matter for clinical judgment and we do not think that to police it from perhaps the Elephant and Castle in the way the noble Lord suggests is necessarily the right way to go about it. So far as the number of "trimming" operations that might be required is concerned, those operations probably amount to something like 10 or 20 in a year, but I do not think I can be more specific than that.

I hope that I have been able to answer some of the points that have been raised. There is a great deal of technical expertise present in the form of my noble friend Lady Cox and also the noble Lord, Lord Rea. However, I stand by what I said: these really are important matters that have to be included if the Bill is to make an sense at all, otherwise perfectly legitimate operations of the type to which I referred will be prevented, and that is thoroughly against the spirit of the Bill which the noble Lord has put before Your Lordships. I therefore beg to move my amendment.

Lord Hatch of Lusby

Before the noble Lord sits down, is he saying that the mental anguish caused by the inability of a girl to have a cosmetic operation is of greater importance, and should be included as a condition within the Bill, than the mental anguish caused to girls who come from a society in which female circumcision is the general practice, and that that should be a reason for accepting the Government's amendment? I could not follow the noble Lord's argument as to the difference between the two.

Lord Glenarthur

I think that the matter is simpler than the noble Lord, Lord Hatch, says. We all seem to be agreed that female circumcision is a thoroughly unsavoury practice. In effect, we are saying, "We do not like you doing it anywhere in the world, and we will do our best to stop it, but we shall certainly not allow you to do it over here". However, although we say that, we are not prepared to allow legitimate surgical operations of the sort I have described to be circumscribed by the law being changed in a way which has not hitherto taken place. I hope that that answers the noble Lord's point.

Lord Kennet

I do not think the noble Lord has made out a very good case; nor do I think many Members of the Committee think he has. I hope that even now he may consider not pressing the matter to a Division. I note that apparently there has been no follow-up to find the results of these operations which the noble Lord seeks to defend by his amendment. I note that the Royal College of Gynaecologists is in favour of the amendment. It would be, of course, because its members perform the operations. Can the noble Lord really divide the Committee, which has spoken unanimously against him, on the single advice of the Royal College of Gynaecologists without obtaining that of the Royal College of Psychiatrists? I do not think that is respectable.

The noble Lord has said that the Government do not think the amendment constitutes discrimination. The Commission for Racial Equality does, and that is what the commission is there for. The noble Lord, without a single voice in his support, intends to divide the Committee against that opinion. If the noble Lord is to divide the Committee (and he says that he is) I must also press my own amendment to the amendment—unwillingly, because it is not a very good idea, but it will make the Government's idea slightly less bad than it would otherwise be.

8.32 p.m.

On Question, Whether the said amendment (No. 6A) to Amendment No. 6 shall be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 42.

DIVISION NO. 3
CONTENTS
Ardwick, L. Cledwyn of Penrhos, L.
Aylestone, L. Collison, L.
Bishopston, L. Cox, B.
David, B. Masham of Ilton, B.
Dean of Beswick, L. Mishcon, L.
Ennals, L. Ogmore, L.
Fitt, L. Ponsonby of Shulbrede, L.
Graham of Edmonton, L. Rea, L, [Teller.]
Hampton, L. Seear, B, [Teller.]
Hatch of Lusby, L. Stewart of Alvechurch, B.
Houghton of Sowerby, L. Stewart of Fulham, L.
Jeger, B. Stoddart of Swindon, L.
Jenkins of Putney, L. Taylor of Blackburn, L.
Kennet, L. Tordoff, L.
Kilmarnock, L. Underhill, L.
Llewelyn-Davies of Hastoe, B. Vickers, B.
Lloyd of Kilgerran, L. Wells-Pestell, L.
Lockwood, B. Whaddon, L.
McNair, L. Winstanley, L.
NOT-CONTENTS
Airey of Abingdon, B. Lucas of Chilworth, L.
Alport, L. Lyell, L.
Avon, E. Macleod of Borve, B.
Belstead, L. Mancroft, L.
Boardman, L. Margadale, L.
Brabazon of Tara, L. Marley, L.
Brougham and Vaux, L. Mersey, V.
Craigavon, V. Molson, L.
Crathorne, L. Mottistone, L.
Davidson, V. Mountevans, L.
Denham, L, [Teller.] Portland, D.
Drumalbyn, L. Renton, L.
Elton, L. Rodney, L.
Faithfull, B. Saltoun, Ly.
Glanusk, L. Sharples, B.
Glenarthur, L. Skelmersdale, L.
Gridley, L. Swinton, E. [Teller.]
Hornsby-Smith, B. Trumpington, B.
Kilmany, L. Vaux of Harrowden, L.
Lane-Fox, B. Wynford, L.
Long, V. Young, B.

Resolved in the negative and amendment to the amendment disagreed to accordingly.

8.40 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 43.

DIVISION NO. 4
CONTENTS
Airey of Abingdon, B. Long, V.
Alport, L. Lucas of Chilworth, L.
Avon, E. Lyell, L.
Belstead, L. Mancroft, L.
Boardman, L. Margadale, L.
Brabazon of Tara, L. Marley, L.
Brougham and Vaux, L. Maude of Stratford-upon-Avon, L.
Cathcart, E.
Craigavon, V. Mersey, V.
Crathorne, L. Molson, L.
Davidson, V. Mottistone, L.
Denham, L. [Teller.] Mountevans, L.
Drumalbyn, L. Portland, D.
Elton, L. Renton, L.
Faithfull, B. Rodney, L.
Glanusk, L. Saltoun, Ly.
Glenarthur, L. Sharples, B.
Gray of Contin, L. Swinton, E, [Teller.]
Gridley, L. Trumpington, B.
Hornsby-Smith, B. Vaux of Harrowden, L.
Kilmany, L. Wynford, L.
Lane-Fox, B. Young, B.
NOT-CONTENTS
Airedale, L. Llewelyn-Davies of Hastoe, B.
Ardwick, L. Lloyd of Kilgerran, L.
Aylestone, L. Lockwood, B.
Barrington, V. McNair, L.
Bishopston, L. Masham of Ilton, B.
Carmichael of Kelvingrove, L. Mishcon, L.
Cledwyn of Penrhos, L. Ogmore, L.
Coleraine, L. Ponsonby of Shulbrede, L.
Collison, L. Rea, L.
Cox, B. Ross of Marnock, L.
David, B. Seear, B. [Teller.]
Dean of Beswick, L. Stewart of Alvechurch, B.
Ennals, L. Stewart of Fulham, L.
Gaitskell, B. Stoddart of Swindon, L.
Graham of Edmonton, L. Taylor of Blackburn, L.
Hampton, L. Tordoff, L.
Hatch of Lusby, L. [Teller.] Underhill, L.
Houghton of Sowerby, L. Vickers, B.
Jeger, B. Wells-Pestell, L.
Jenkins of Putney, L. Whaddon, L.
Kennet, L. Winstanley, L.
Kilmarnock, L.
The Deputy Chairman of Committees

There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 2 agreed to.

8.49 p.m.

Lord Denham

I take the feeling of your Lordships on this. We have overspread the normal time. If the noble Lord, Lord Kennet, is in agreement, and if nobody wishes to speak very much on the rest of the Bill and it will go through formally, perhaps we could finish it off in a matter of a couple of minutes. But if there is to be discussion on the further amendments I think the general agreement was that we should take it at the next time allotted.

Lord Kennet

I can move the amendments very quickly indeed but of course I cannot answer for what other noble Lords may wish to say about them.

Lord Denham

In those circumstances, we shall have to resume the Cable and Broadcasting Bill Committee because there is a second day allotted for the overspill in the Prohibition of Female Circumcision Bill. I beg to move that the House do now resume.

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

House resumed.