HL Deb 27 March 1984 vol 450 cc212-22

8.18 p.m.

Read a third time.

Lord Rea moved the following amendment:— Clause 2. leave out clause 2 and insert the following new clause:

("Saving for necessary surgical operations.)

2. Section 1 above shall not render unlawful the carrying out of a surgical operation on a person if—

  1. (a) the operation is carried out by a registered medical practitioner who is of the opinion that the operation is necessary for the physical health of that person or for the rectification of abnormality; or
  2. (b) the operation is carried out by a registered midwife or a person undergoing a course of training with a view to becoming a registered medical practitioner or a registered midwife on a person who is in any stage of labour or has just given birth and is so carried out for purposes connected with that labour or birth.")

The noble Lord said: My Lords, in the absence of Lord Kennet. I rise to move the sole amendment on the Marshalled List. This amendment replaces Clause 2 of the Bill by an amended clause. It has two main purposes. One is to plug a gap in the Bill left by an amendment at Report stage, and the other is to provide protection and reassurance for those engaged in obstetrics or midwifery.

The gap results from the decision at Report stage to drop sub-sections (1)(b) and (2) of the original Clause 2. These required that any operation exempted from the provisions of the Bill should be carried out by a registered medical practitioner in a National Health Service hospital or registered nursing home. They were taken out because a proportion of births take place at home. Minor surgical operations on the female genitalia are frequently done as part of normal obstetric practice, whether at home or in hospital, by midwives as well as doctors. These operations include episiotomy, which is an incision of the perineum which enlarges the outlet of the birth canal. This needs to be repaired after childbirth is complete, as do spontaneous vaginal or perineal tears. By not specifying who should carry out permitted operations, a possible loophole remains for an unqualified person to operate which might undermine the purpose of the Bill.

Paragraph (a) of the present amendment reinstates the requirement that it must be a qualified doctor who does the operations referred to. Paragraph (b) is included to protect midwives and students of midwifery, whether they be nurses or medical students, when undertaking the obstetric procedures I have mentioned. It affirms that legitimate obstetric practice will be unaffected by the provisions of the Bill. Students of medicine or midwifery carry out these operations only under supervision. But it is proper that their position should be clarified and legitimised. I should mention that, as a medical student and as an obstetric house surgeon, I learned most of my practical obstetrics from midwives rather than from doctors.

I hope that your Lordships will agree that this amendment both tightens the Bill and provides the safeguards which are needed by midwives and their students while practising their professions. I beg to move.

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

My Lords, I will simply say that the Government fully support the aims behind the amendment both in ruling out operations by unqualified people and in bringing in those which may be performed by a midwife while attending a confinement, and say that the amendment is quite satisfactory as far as it goes, but only as far as it goes. It might be appropriate if I said something further about Clause 2 as a whole at a later stage.

Baroness Cox

My Lords, I should like briefly to support the amendment because, as the noble Lord, Lord Kennet, has said, it contains the extra provisions crucial for protecting those other than qualified medical practitioners who might legitimately carry out the kind of procedure to which reference has been made. Without the amendment, midwives, and those training for midwifery and for medical qualifications, would have been in an extremely vulnerable position. Moreover, I understand that the Royal College of Midwives has explicitly welcomed the inclusion of these extra provisions. Therefore, I believe we are indebted to those who have taken account of these considerations and I hope that they will find acceptance.

Baroness Masham of Ilton

My Lords, it has been difficult in the passage of this Bill to find ways of pleasing all the bodies involved, but no one has been against making this vile practice of mutilating young girls and women banned and outlawed. I hope that this amendment is more acceptable to everyone and that at this last stage of the Bill the Government now find it acceptable.

Paragraph (a), as I read it, now brings in the cases that the noble Lord, Lord Glenarthur, was worried about. It says: or for the rectification of abnormality". The abnormality is not defined so that it could be either mental or physical. This should overcome any difficulty that the Minister foresees. I hope that the Minister will consider it, because I have been to several Members of your Lordships' House who put down amendments and to our various clerks and they say that this is the case.

As far as paragraph (b) is concerned, from a nursing point of view Lady Cox has agreed to it, and from a medical point of view the noble Lord, Lord Rea, who is a doctor, has agreed to it. Thus, I support the amendment.

Lord Coleraine

My Lords, having failed to read the amendment correctly at my first attempt, I should like to put down a marker for another place where a further amendment to this amendment might be made. My problem was that there seemed to be two "registered midwives" in new Clause 2(b).

I understand that paragraph (b) is meant to be read in the following way: the operation is carried out by a registered midwife"— comma— or a person undergoing a course of training with a view to becoming a registered medical practitioner or a registered midwife"— comma— on a person who is in any stage of labour"— and so on.

I read it differently. I read it as, the operation is carried out by a registered midwife"— comma— or a person undergoing a course of training with a view to becoming a registered medical practitioner"— comma— or a registered midwife on a person who is in any stage of labour"— et cetera. I have no doubt that this was just the inadequacy of my reading, but I think it would be better if at some stage the word, "either" could appear after the word, "becoming" and before the words, "registered medical practitioner".

Lord Rea

My Lords, I do not take any responsibility for this lack of clarity in the wording. It came back to us in this form after it had been sent to the department for tidying up. As there are no further speakers, I beg leave to move the amendment.

On Question, amendment agreed to.

8.27 p.m.

Lord Kilmarnock

My Lords, I beg to move that this Bill do now pass. In moving this, I had hoped that the noble Lord, Lord Glenarthur, would declare the Government's hand on the Bill during the debate on the amendment, as we are still not fully apprised of the Government's intention.

Moved, That the Bill do now pass.—(Lord Kilmarnock.)

Baroness Jeger

My Lords, before speaking on the Motion, I have listened carefully to what has been said and I very much appreciate, so do all my noble friends, the care and consideration which has been given from all sides of the House to this legislation. I hope that we can count on the Government not only giving the Bill a fair wind but seeing it safely into harbour. I see it, and so do most of my noble friends, as an important Bill, for just two reasons, which I should like to put on the record briefly.

First, there is a growing practice in this country of female circumcision among immigrant communities. Many people say that this has not reached serious proportions yet, but I submit that we must deal with this before it reaches serious proportions. In Sweden it has been outlawed, and also in France, but as to France I remind your Lordships that in the French Parliament the bill followed two tragic deaths of small girls who were subjected to the process of female circumcision and died as a result of this crude operation.

The second reason that I hope the Government will see this Bill through to its final stages is that we must support world opinion, as exemplified by everything that we have had from the United Nations, from UNESCO, from the World Health Organisation and from international bodies of nurses, midwives and doctors, which makes it absolutely clear that professionally there is total objection to this procedure.

I must remind your Lordships that any failure here would have a disastrous effect in other countries where enlightened doctors, midwives and leaders are trying to get rid of this procedure. In Kenya for example, where the practice is illegal, there are severe difficulties in implementing the law because of traditional antagonism to change. It takes much courage in some communities for parents to break with traditional circumcising of their daughters. As with the traditional burning of widows in India, abolition in practice will take far longer than abolition in law.

Progress is bound to be slow but the reformers need all possible encouragement, and I submit that it would be a betrayal of their endeavours if our Parliament were to appear less than wholehearted in making female circumcision illegal in this country. They would not understand excuses about the timetable or the technicalities of contentious amendments. Failure to pass this Bill would be regarded as tacit approval, or at least the absence of disapproval. We cannot allow it to be said that female circumcision must be acceptable because the Westminster Parliament has failed to prohibit it.

In this House we have spent over 36 hours in debate, including time last Session. We have had the benefit of advice from Members experienced in medicine and midwifery, from Members with long experience of conditions overseas. I think especially of the noble Lady, Lady Kinloss, and of the noble Lord. Lord Hatch, and many others. We have spent much time in consultation with experts in many fields. We have tried to be constructive in meeting the problems involved, as indicated by the amendment agreed today.

In the view of many of us on all sides of the House, it would be dishonourable if any tactics were to be used at other stages which would endanger the passage of what is surely an humanitarian, non-party and internationally-agreed measure. I would remind the noble Lord, Lord Glenarthur, that on 10th November 1983 at Col. 1000 of the Official Report, he said: My noble friend Lord Trefgarne has already stated on the previous occasion, on 21st April, that the Government acknowledge the case for a firm statement in legislation that would put beyond doubt the illegality of the practice of female circumcision. I am confident that this Government will abide by that undertaking and those of us who I hope will be approving the Third Reading of this Bill tonight can have confidence that the Government, knowing that the proposals we are putting forward are backed by UNICEF, WHO, the British Medical Association, the Royal College of Midwives, the Royal College of Nursing, the National Council of Women, the National Federation of Women's Institutes, the Medical Women's Federation and the International Council of Nurses, can surely do nothing to jeopardise the passing of this Bill.

In our view it would be intolerable and disgraceful if the forces of darkness in lands where this mutilation persists were able to pray in aid that the United Kingdom Parliament had failed to make the practice illegal. It would be taken as a de facto endorsement on the grounds that "those who are not against us are for us". I know that this is not the attitude of your Lordships', but I also know that many courageous doctors, midwives. political and social leaders in overseas countries insist that this is the interpretation which could be put on by their enemies. I hope that the Government will not only ensure that this Bill gets its Third Reading in your Lordships' House tonight but that during the other stages nothing will be done to delay its passage. I am sure it will be a good day for this country and for the women of the world if this Bill passes.

Baroness Cox

My Lords, may I speak very briefly to say that I, too, hope most sincerely that this Bill will now go forward without let or hindrance. The principles underlying it have had unequivocal support from all parts of this House. Moreover, matters of complex technicality and detail have been the subject of lengthy and thorough discussion and debate in earnest attempts to ensure that the spirit of the Bill is reflected in the letter of the law.

It would be a tragedy if the Bill were to founder now as many, not only in this country but also abroad, are watching its progress and eagerly hoping for its successful conclusion. Many people would like to express their appreciation to the noble Lord, Lord Kennet, for introducing this Bill and for working so hard to make it acceptable to all concerned, and also to express thanks to my noble friend Lord Glenarthur for all his industry and tenacity.

May I conclude by echoing the hopes of the Royal College of Midwives that, this Bill, to end what can only be described as a mutilating procedure, will be speedily passed without amendment through the House of Commons".

Lord Winstanley

My Lords, I am not wholly sure that I am altogether wise not to have withheld my fire until we have heard from the Minister; but as a doctor, irrespective of the views expressed by my noble friends on these Benches, I most sincerely welcome this Bill in its present form. At the outset I want to say frankly, as a doctor, that I rather regret that any Bill was necessary. I would have thought that, so far as the medical profession was concerned, it was clearly the duty of the General Medical Council to deal with people who perform mutilating operations of this kind. That of course leaves the situation when such operations might be carried out by a lay person; and I would have thought that could have been coped with under the Offences Against the Person Act. But obviously something else is necessary and I believe that this Bill meets the situation.

It is my belief that the exceptions which are spelt out in the amendment which your Lordships have now accepted are the only ones which are conceivably necessary. They provide for the odd manoeuvre which is required in obstetrics, as explained by the noble Lord. Lord Rea, and they also provide for operations performed in order to deal with genuine abnormalities and for quite specific medical purposes.

Personally. I am very glad indeed that there has been no further attempt to insinuate anything like the mental health of the patient and to try to relate it to some kind of obsessional attitude arising from a custom or from religion or anything of that kind. I genuinely believe that obsessions of that kind, however caused, could never be a justification for mutilating operation of this kind, and I do not think we should have countenanced it. Therefore, I think that the sponsors of this Bill are quite right to leave it in its present form. I would say that professionally I do not believe there is any need at all for any further exceptions beyond those which your Lordships have already approved.

8.38 p.m.

Lord Hatch of Lusby

My Lords, I only wish to endorse and to re-emphasise the words of my noble friend Lady Jeger. This is a Bill which has unanimous support, not just in this House but I believe through-out the country. If the issues that have been debated in this House were put to the people of Britain, I believe there would be virtual unanimity that this is a further step towards the civilising of the practices and the law of Britain. That is the first reason why I wholeheartedly support my noble friend Lady Jeger in pleading with the Government to make it absolutely plain tonight that they are not only approving of the Bill but unreservedly putting their total weight behind it when it passes to another place, and in the form in which it has passed through this Chamber.

I particularly remember—I think it was during the first time we went through this Bill—the very strong speech made by the noble and learned Lord the Lord Chancellor, when he not only condemned the practice but expressed his belief that it was outside the law of today. This Bill can only strengthen the words which he used at that time; but I would ask the noble Lord who is to reply whether he has yet got the answer to a question which I have consistently asked during the passage of this Bill twice, as to what is the attitude of the Director of Public Prosecutions towards the cases which have been at least reported, if not proved, to the effect that this practice has been engaged in in this country in recent times.

My noble friend Lady Jeger touched on a second reason in her speech on the Question that the Bill do now pass; namely, the international effect. Those of us who have lived where female circumcision is part of the tribal customs of certain communities—and I stress just certain communities—in various parts of Africa and Asia know of the great courage which has been shown, and is being shown, by those women—and some men, too—who believe that that ancient tribal custom is uncivilised because it is cruel, and who are now trying to persuade their fellow members of these communities that it should be outlawed and should no longer be considered to be a part of tribal custom. We cannot emphasise too often or too loudly that no hint of criticism of the traditions and customs of other people is contained either in the Bill or in the speeches which have been made in support of it. But there are very brave women, and men, who, having been brought up in those customs but having seen that cruelty is an absolute evil, now recognise that this principle must take precedence over the customarv habits of their communities. I believe that the Bill, and I pay my tribute to the noble Lord, Lord Kennet, for having introduced it, will be of enormous service to those men and women who are fighting against the most dangerous of all prejudices: that of tradition and custom.

As my noble friend Lady Jeger has pointed out, if anything is done by anybody in either House of this Parliament to change the spirit of the Bill—indeed, to change the letter of the Bill—as it leaves this Chamber or to prevent its passage, it will be a disservice to the cause of humanitarianism throughout the world and a betrayal of the courage that is being shown by the men and women whom I have mentioned. I hope, therefore, that when he winds up on behalf of the Government the noble Lord, Lord Glenarthur, will recognise that he is speaking not just to this Chamber, not just to this Parliament and not just to this country; his words will be heard in many parts of the world where a few men and women are fighting a very courageous and often very lonely battle against the traditions of centuries in order to bring civilisation, kindness and a destruction of cruelty to the communities of which they are members and who recognise, above all, that a community is judged by the way in which it acts towards its womenkind.

8.45 p.m.

Lord Glenarthur

My Lords, now that we have almost completed our consideration of the Bill, your Lordships will want to know, as the noble Lord, Lord Kilmarnock, suggested, what the Government's attitude is to its further progress. When I spoke on Second Reading I said that the Government supported the principle of the Bill. I can assure your Lordships that we still stand foursquare behind that principle. However, I also made it clear that we did see certain deficiencies in the Bill as it was first presented and that these would have to be put right if it were to reach the statute book.

I certainly welcome the numerous improvements which have been made during the Bill's passage through your Lordships' House. I, for one, appreciate the co-operation that I and my ministerial colleagues have had from the noble Lord, Lord Kennet, and many of your Lordships in bringing about those improvements, so it is a matter of real regret to the Government that after all the work that has been done, both in this House and elsewhere, the Bill is still, as we see it, defective in one important respect; namely, the exemption not for female circumcision, as was hinted by the noble Lord, Lord Winstanley, but for the necessary surgical operations provided for in Clause 2. It is a point that we argued at length in Committee, and I do not propose to go over all that ground again; but at this stage I should leave your Lordships in no doubt about the issues, as the Government see them.

Whatever our differences about the details of the Bill, we all speak of course with one voice in condemning the revolting practice of female circumcision, wherever it occurs, and in wishing to ensure that no one can perform it in this country. The point on which we have found ourselves at odds concerns that very small category of operations for which the need does not arise directly from the physical health of the patient. I explained at an earlier stage why, in our view, these are not sufficiently covered by the phrase "rectification of abnormality".

I do not propose to rehearse that argument again. It is, I accept, an argument on which I failed to convince the Committee, as it then was. And I do not, of course, for a minute question the Committee's right to take the view that it did. However, I am very much concerned about the extent to which that view may have been based upon misrepresentation and misunderstanding of our position. The impression certainly seems to have arisen that we are talking about women suffering from some sort of mental delusion which expresses itself in a desire for mutilation. But our purpose in seeking a provision for mental health grounds was not in any way to indulge any such desire. It was simply to avoid interference with surgery whose object has nothing whatever to do with mutilation, but whose object is to reduce the size of a woman's external genitalia in those cases where it is a source of real distress to her.

I very much regret the impression which has gained ground in some quarters, certainly outside your Lordships' House—I have had many letters on the matter—that the Government are trying to allow female circumcision on mental health grounds. I hope I have made it quite clear how utterly misconceived this conception is. It was hinted at in the speeches which have been made tonight, and I stress again that this concept is wholly wrong.

If, as I have argued, the definition of "necessary surgery" needs to include some provision for mental health grounds, we have to avoid creating a loophole that would allow the customary practice of female circumcision to be performed on the ground that the patient's mental health would suffer if it was not performed. This a problem which we have considered in very great depth, and we believe that the only way of preventing such a loophole is by a specific exclusion of custom or ritual as grounds for surgery. What makes female circumcision different is, I suggest, the existence of the social pressures to which I have referred to conform to the customs prevailing within certain communities. The whole purpose of the Bill is to prevent those customs from gaining a foothold in this country—a view which we all share. I cannot agree that the Bill becomes racialist simply because that implied purpose is stated explicitly.

A further flaw in the present wording of Clause 2, as amended tonight, is that the only test of whether an operation is allowed is the opinion of the registered medical practitioner that it is necessary for the reasons stated. Thus a doctor who was charged with an offence under Section 1 would simply have to state that in his opinion the operation was necessary for the patient's physical health, or the rectification of abnormality, and the case against him would fall. The court would have no power to question the grounds of his opinion. The amendment the Government moved in Committee would have required that the operation be necessary objectively for the person's physical or mental health, and not merely necessary in the doctor's opinion. The doctor could thus be required to satisfy the court that his opinion was reasonable in all the circumstances, and it would be open to the court to consider other expert medical evidence on this point.

Our view about the right way of tackling this problem is not just the view of the Government and the Royal College of Obstetricians and Gynaecologists. It is also shared by the British Medical Association. I should like to quote from a letter I have received from the association in which they state, We agree that 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". I repeat that the Government hope that it will still be possible to introduce a form or words to which we can give our full-hearted, unequivocal support—but we have to realise that time is not exactly on the side of this Bill.

In conclusion, I would like to say something about our understanding of the law as it stands. This was referred to by the noble Baroness, Lady Jeger, and the noble Lord, Lord Hatch of Lusby. I would not want it to be thought that if Parliament fails to pass a Bill, this will leave unbridled licence for female circumcision to be performed in this country. Interpretation of the law is, of course, a matter for the courts, but our advice is that an act of this kind performed without the consent of the person on whom it was done would constitute an assault. I am advised that, if the operation was performed on a girl under 16, the courts should have no difficulty in deciding that she could not give a valid consent. However, the position where an adult woman has apparently given her consent seems rather less clear, and indeed the whole matter cannot be entirely free from doubt in the absence of a specific judicial authority. I can, however, give your Lordships the assurance that if we receive any specific allegations of female circumcision being performed, we shall not hesitate to bring them to the attention of the Director of Public Prosecutions so that he can consider whether a prosecution should be brought.

As I said in my opening remarks, the Government very much regret the differences that have arisen between those discussing this Bill on an issue on which we are so strongly united in principle. I hope very much that the Bill's remaining deficiencies can still be put right and that we shall be seeing the Bill here again in a form the Government can fully endorse.

Baroness Lockwood

My Lords, before the Minister sits down, may I put it to him that it is hardly in keeping with the spirit in which this Bill has been discussed by all sides of the House that he should wait until his final winding-up speech to make the point that he has made about the amendment passed by this House before we reached the final Third Reading. I think it would have been more helpful had the Minister put forward his view at an earlier time, when we were debating the amendment.

Perhaps I may go on to say that on this occasion, although the Government have expressed their broad support for the principle of the Bill, which no one would challenge, the Government have not been particularly helpful in trying to get this Bill through in a way that is acceptable not only to the House but also to the many organisations mentioned by my noble friend on the Front Bench and by the noble Baroness opposite. I hope that when this Bill does go to another place the views of those professional organisations, the views of the voluntary organisations, and the views of international organisations will be taken into account as well as the debate in this House.

Baroness Masham of Ilton

My Lords, perhaps I may add just a few words. Following what has been said by the noble Lord, Lord Glenarthur, I hope that where there is a will there is a way; and if the Government really want to find a way, they will do so in another place. I hope that this Bill will have a speedy passage through another place with the Government's full help and blessing.

If we were a civilised country—and I sometimes wonder whether we are, when one sees such horrors as "video nasties"—there can be no place for such mutilating torture of young girls as female circumcision. I am pleased that the National Union of Townswomen's Guilds have passed a motion unanimously, That the NUTG declares its total support for prohibition of female circumcision". That is just one more to add to the list of the noble Baroness, Lady Jeger.

Nationwide, people—especially women—were shocked when they realised that this barbaric practice was taking place in this country. There is no place for it in Britain in 1984. If this Bill does not become an Act of Parliament soon, I am sure that your Lordships will have a third Bill before you before too long. I hope that the Minister will do his best to see that this Bill is in safe hands when it leaves your Lordships' House.

Lord Kilmarnock

My Lords, I have listened with the greatest interest to all that has been said by every speaker in this debate on the Bill do now pass. It seems to me that the objections which the noble Lord, Lord Glenarthur, has adduced this evening were more precise and specific than those which he advanced when moving the Government's earlier amendment at an earlier stage of the Bill, which was not carried. It therefore seems to me to be regrettable—as the noble Baroness. Lady Lockwood, implied—that the Government did not come forward and clarify their position at an earlier date. Had that been the case, we—the sponsors and the Government together—might well have been able to come forward with an amendment that would have satisfied all the interested parties to this Bill.

We have now reached the stage where we are to pass this Bill, but with those remarks I should very much like to urge upon the noble Lord that he takes account of what all speakers have said this evening. It seems to me that a position which is acceptable to all parties could be reached, and I hope that the Government will give thought to that.

In view of all the extremely hard work that has been put into this Bill by all the people associated with it, perhaps we can have a further meeting with the noble Lord to try to arrive at a final agreement on the form of words that will be acceptable to the Government and which will meet the undoubted concern expressed by all sides of the House this evening, and which is evident up and down the country, that this abominable practice must be banned.

Lord Glenarthur

My Lords, with the leave of the House, may I respond to one or two of the remarks which have been made? I am sorry that the noble Baroness, Lady Lockwood, felt that I ought to have said what I did say about a particular aspect of Clause 2 when I spoke to the amendment and not when I spoke on the Motion, That the Bill do now pass. I did say, when I spoke to the amendment, that the amendment, so far as it went, improved the clause—but only so far as it went—and that I would be returning to the general matter of Clause 2 later. If I have been discourteous to the House in amplifying my remarks in that particular way, then I of course apologise. It was merely that the issue involved with the amendment was a smaller one and one acceptable to the Government; rather more so than the general issue of Clause 2 to which I referred.

The noble Lord, Lord Kilmarnock, talked about the hard work that everyone has put into this Bill. I am the first to appreciate that. It has taken an immense amount of time and work to get the Bill this far. I again pay tribute to all those Members of your Lordships' House who have helped. However, I do not want the noble Lord to leave your Lordships' House with the impression that in some way the Government have been intransigent about the improvements to Clause 2 by suggesting that I have said anything different to what I said at any other stage of the Bill. That is simply not the case. I had many discussions with the noble Lord, Lord Kennet, as did my ministerial colleagues, and with other of your Lordships, both in and outside this Chamber. I and my colleagues have maintained all along that if we are to see this Bill in its proper form it will be necessary to include the sort of provision to which I referred just now and which I do not intend to repeat. It would be a pity to suggest that in some way we have now clarified an issue which we had not clarified hitherto, because that is not the case.

On Question, Bill passed, and sent to the Commons.

House adjourned at one minute past nine o'clock.