ABORTION BILL [H.L.]

§ LORD SILKIN

My Lords, I beg to move that this House do now resolve itself into Committee on the said Bill. It is, perhaps, unusual for anything to be said on a Motion of this kind, but the circumstances are somewhat exceptional and I hope the House will forgive me if I just say a few words by way of introduction.

The House will remember that on November 30, when we had the Second Reading, this Bill was discussed at considerable length and met with a good 285 deal of criticism in detail. There was a certain amount of opposition to the Bill, but I think that the House was prepared to accept it, although a number of matters did not commend themselves to the House at that time. I promised the House that, if it gave the Bill a Second Reading, I would endeavour to seek agreement with the principal critics, and if possible to introduce a new Bill as an agreed Bill. I have met the chief critics: the noble and learned Viscount, Lord Dilhorne, on several occasions; the right reverend Prelate the Bishop of Exeter; I have had correspondence with the noble Lord, Lord Brain I have had the advantage of meeting representatives of the Churches, and of reading their Report; I have seen the British Medical Association and have had a good deal of correspondence with them, in addition; and I have met a great number of other people. As a result of all this, I decided, after consultation with the noble and learned Viscount and others, that the best course was not to try to inroduce a new Bill, which would not be an agreed Bill in any case, but to try to amend the existing Bill by way of Amendments.

I realise that the Amendments are pretty drastic. I realise, also, that on a previous occasion some years ago, when this fate befell somebody else who had introduced a Private Member's Bill, I myself was very critical of the moving of a large number of Amendments to a Bill in such a way as virtually to make it a new Bill. I do not think this is a new Bill. I think its basis stands. In one or two respects I have altered the Bill, but fundamentally the principles of the Bill as originally introduced are retained in the Amendments. I will say this in extenuation. While the question of abortion is a vital subject and, to my astonishment, has aroused tremendous interest throughout the country, nevertheless, to my knowledge, it has never been discussed in this House before and very little in another place. Therefore, the reaction of noble Lords to a Bill of this kind was quite uncertain.

I decided that I would introduce the Bill in virtually the form in which it was introduced and, I think, rejected some years ago in another place. I thought that was the best course, so that I might discover what was the reaction of noble Lords to various points in the Bill. I had that advantage. Noble Lords were 286 very frank and critical, and I have tried to meet by way of amendment such criticisms as I agree to, and in the language in certain respects of some of my critics. For instance, a number of provisions in my Amendments are exactly in the form of the Report of the Churches' Commission, and I hope that they will be prepared to accept them. There are others which are in the form which the noble and learned Viscount drafted, and I am sure he will accept those for which he is partly responsible. There are others for which I myself have to take full responsibility. Finally, I say, quite frankly, that I am not satisfied even not with the drafting of the Bill. I am not a Parliamentary draftsman, and the more I look at the Bill the more I realise that there are drafting defects. I am hoping that, once we have got the Committee stage through, I may have some help from experienced Parliamentary draftsmen to enable me to put up a better show before the Report stage. I hope the Committee will be prepared to give the principles of my Amendments full support.

Now I think it may be for the convenience of the House if I state what I have in mind so far as the timetable is concerned. I hope we may succeed in getting Clause 1 of the Bill through this evening, but the last thing I want to do is to curtail discussion; and, whether we do or not, I would propose to ask the Committee to postpone discussion at 7.30, or as near to that time as possible—that is, if I can bear up until then. If I find I am thoroughly exhausted as a result of the discussion, I hope the Committee will not mind my asking for a postponement before that time; but I will do my best. However, your Lordships may take it that it will not be later than 7.30. My Lords, I beg to move.

§ VISCOUNT DILHORNE

My Lords, it is unusual to have anything in the form of a debate on this particular Motion, but I am sure the House is grateful to the noble Lord for the explanation he has given. He started, I thought, by trying to erect a shield in case he was attacked, or in case observations which he had made on a previous Bill were thrown 287 at him. I, for one, would be the last to complain that he had taken steps to improve a measure which was justly criticised to a very great degree—and not only on matters of detail—in the course of the Second Reading. The Amendments are, as the noble Lord has said, pretty drastic. I do not think there is any clause in this Bill which, if the Amendments are carried, will not be changed; but I for one do not regret that, and I shall not myself criticise the noble Lord for seeking your Lordships' agreement to the making of drastic changes in this particular measure.

I do not agree with him when he says that what we shall see if these Amendments are carried will not be a new Bill. It will be a very different Bill from the Bill he introduced, but it will at least be somewhat better—and I hope that in the course of the Committee stage, when we shall have some interesting questions to debate, we shall succeed in making it better still. I am one of those who want to see a Bill on this subject, a proper Bill, on the Statute Book, and I therefore do not propose to take up any more time by saying anything further upon this Motion.

§ THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)

I should point out to the Committee that Amendments to proposed Amendments are taken after the original Amendment has been moved and the Question put for the first time. After such Amendments to an Amendment have been disposed of, the debate on the original Amendment is resumed.

§ BARONESS SUMMERSKILL

I feel it only right and proper that I should tell the Committee that I have already warned my noble friend that I proposed to follow the noble and learned Viscount, Lord Dilhorne, and in substance support what he has said, although I hope that he will also he guided by me on some of the detail. My noble friend's new clause provides that certificates should be given by two registered medical practitioners. In my opinion, this is a great improvement on the original provision, which gave the right to one medical practitioner to terminate a pregnancy without further consultation. I ask my noble friend to strengthen his provision, because I believe that the service given to these women at such a time is of such vital importance that the whole future of the Bill may hinge upon it.

294 I wish my noble friend would consider making it compulsory that at least one doctor should be a surgeon with gynecological experience who is in contract with a hospital. At the same time, I would ask the noble and learned Viscount to reconsider the wording of his Amendment, which simply specifies a registered medical practitioner employed in a hospital. This could mean a clinical assistant who also could be a general practitioner who had been invited from outside the hospital to come and help a hospital staff subject to great pressure. Therefore, if the noble and learned Viscount simply asks for a doctor who is employed in a hospital, I think that he may be defeating the object he has in mind.

Furthermore, I believe that the doctor who supports the general practitioner should have specialised knowledge of surgery, preferably gynæcological surgery. May I briefly describe the procedure in order to emphasise my case? Let us assume that this Bill reaches the Statute Rook. A woman may then ask her National Health Service doctor for an abortion under the new Act. For conscientious reasons, the doctor may refuse; indeed, it seems that if he is a Catholic, he will certainly refuse, and has every right to do so. But the expectant mother has every right to ask for consideration of her case under the Act, and as a patient of the National Health Service. If the doctor feels that he cannot reconcile his conscience with his Hippocratic Oath, he can send the woman to another doctor.

Let us be realistic. Being paid on a capitation basis in a small town, a doctor may be reluctant to send a patient to another doctor, and he may delay doing so. I need not remind those of your Lordships who have followed the progress of the Bill throughout that a delay of a week or two in taking a decision may result in a woman being denied the chance of an abortion. Furthermore, if the doctor says that he will send the woman to a neighbouring practitioner, and asks her to remain on his list (which would be quite understandable) the woman will have to be treated as a private patient and pay a fee. Let us remember that throughout this debate we are talking not about wealthy women, but about poor women who generally live in rather distressing circumstances.

295 In a town with a large Catholic population, the doctor to whom a woman goes as a private patient will, in his turn, have to seek a second doctor, which may prove difficult. All these difficulties could be resolved, and the woman's doctor would be able to reconcile his religious scruples with his professional principles, if the woman were sent to a surgeon with gynecological experience at her local hospital. The surgeon could obtain a second opinion from a colleague, and the woman could be admitted to undergo an operation in the best possible circumstances.

I come now to the case where the woman's general practitioner has no conscientious scruples, where he agrees that an operation is necessary, and finds a neighbouring practitioner who concurs. I will not emphasise the important point about collusion made by my noble friend, which was also made by the noble and learned Viscount. Two general practitioners having agreed, where is the operation to be performed? Only last week the Minister of Health said that because surgeries like slum properties existed he was prepared to finance new buildings. Is the operation to be performed in a place where there are no facilities? The average general practitioner is not an expert. He will not have procured an abortion before. In his professional life he may have been asked a thousand times to procure an abortion, but he would know that if he did so, although he may think it just, he would run the risk of being struck off the Register. Therefore, the general practitioners we are talking about will have had no experience, and will procure abortions in their surgeries only when this Bill is on the Statute Book and becomes law.

Where else can this be done? In the woman's home? Let us be realistic. We are dealing with a tragic problem which in the past has had certain squalid features. It was not unusual for back-street abortions to be performed in the home on the kitchen table. Where else could they be done? We are talking about homes with two or three rooms, which are already overcrowded, and where there are no facilities for an abortion to be done. It is no good noble Lords thinking that all that general practitioners would have to do would be to telephone a hospital and say that the 296 operation had to be done there. Two general practitioners cannot direct a surgeon to perform any operation. A surgeon is not a carpenter or a plumber. It would not be possible in every area to telephone a hospital and earmark a bed. The opinion of a surgeon must be sought. He will then be prepared to perform an operation and to provide a bed for the patient, where she is able to stay for, I hope, at least two days. I would emphasise that point, because if it is done in a surgery, does she walk home or is an ambulance forthcoming? We are seeking to eliminate the back-street abortion. It is essential that women should be given the best treatment in hospital, the kind of treatment that any other patient has.

There is another argument for this procedure, which every harassed general practitioner will appreciate. He will not be subject to undue pressure from women who are not strictly eligible for abortion under the Act. If he can refer them to an independent doctor at a hospital, he will not have his livelihood threatened—because the present capitation basis, which I hate, means that before a poor doctor offends the patient, he has to consider his livelihood. He should be free to say to a patient, who has every right to ask about abortion, that he would like a second opinion and that she should go to hospital and see a gynæcologist. The same point, of course, applies in regard to doctors who are asked by their patients for expensive proprietary drugs. We must not expose doctors to a new form of pressure. Finally, I would say to my noble friend Lord Silkin, with the utmost sincerity: if we do not provide conditions which are safe for the mother and acceptable to the medical profession, this Bill could fail to achieve its purpose.

§ LORD STONHAM

I hope it will be for the convenience of the Committee if, before speaking to the Amendment now under consideration, I indicate the Government's general approach to the Committee stage of the Bill. Your Lordships will recall that, on Second Reading, I made it clear that the Government were neutral on issues of principle raised by the Bill, and members of the Government are free to vote as they wish. That remains the position. But the Government 297 recognise that your Lordships' House, by its decisive vote on Second Reading, has shown itself, in principle, in favour of some amendment to the law on abortion. In view of this, the Government are prepared to advise on the practicability of a particular Amendment, although this will not necessarily imply that the Government consider the Amendment desirable.

In reply to the question of my noble friend Lord Silkin, we are also prepared, as in the case of the Sexual Offences Bill, introduced by the noble Earl, Lord Arran, to make available the services of Parliamentary Counsel to look at any Amendments accepted by the House in Committee, and, if necessary, to put them by the Report Stage in a proper form to give effect to the expressed wishes of the House. It occurs to me that there may be parts of clauses of the Bill which meet general approval, whereas the whole of a clause or subsection may not, and our offer with regard to drafting covers any of these contingencies. I shall refrain from comment on matters of principle, whilst giving whatever assistance I can on matters of fact, feasibility, and the practical application of the proposals your Lordships have under consideration.

This leads me to say at once that, in the view of the Government, neither the Amendment which Lord Dilhorne has moved, nor Lord Silkin's proposal, which he seeks to amend, would leave us in a satisfactory position, because neither Amendment fulfils what we regard as four essential safeguards. The first is the need for two concurring opinions. That is provided for in both Amendments. The second is that the doctor must act in good faith. That is provided in neither Amendment. The third is that there should be a certificate, which is provided in both Amendments. And the fourth is—and I was delighted to listen to the speech of my noble friend Lady Summer-skill, who dealt with this—that operations of this kind must, in the view of the Government, be performed in a hospital or a registered nursing home with the necessary facilities. We propose to consult my noble friend Lord Silkin about this matter and at a subsequent stage to assist in making the necessary provisions.

I think that I should comment on what the noble and learned Viscount had to say with regard to National Health Ser- 298 vice doctors. Of course, they include those who are part-time hospital doctors and those who have substantial- private practices as consultants. Therefore, in our view, the safeguard he has mentioned does not cover the whole point satisfactorily. Let me take the first point, about adequate safeguards against certificates being issued in bad faith—for example, on a mere pretence that one of the statutory grounds had been satisfied, Lord Silkin's new clause would make it lawful for a pregnancy to be terminated if two doctors certified that this was necessary. The effect of this would make the legality of the abortion dependent on the issue of the two certificates, and if these were available it would seldom, if ever, I am advised, be possible to challenge the grounds on which the certificates were issued, because in law they are virtually unchallengeable. I gladly acknowlege what we all know to be true, that the overwhelming majority of doctors treat the subject of abortion according to the highest: standards of professional conduct; but that makes it the more necessary not to leave a wide open door for the tiny minority who do not.

§ VISCOUNT DILHORNE

Would the noble Lord be good enough to explain to me how it makes it more easy to challenge them if we insert the words "in good faith"? Without those words in the Bill, if we can show that the certificates are false, a prosecution can be made. We cannot prosecute if we put in the words "in good faith", unless we can show that the certificates are also false. So the addition of these words will add nothing. I think the Home Office ought to think again about this matter.

§ LORD STONHAM

Perhaps the noble and learned Viscount will wait until I have developed the argument. Then, if he is still of the same opinion, it would be a matter of discussion at a later stage. It would be more helpful if I completed the whole argument. I was making the point, with which the noble and learned Viscount agrees, that it would be wrong to leave a wide open door for the tiny minority of doctors who do not observe the best standards of professional conduct in this matter. Whatever the final version of the Bill, in essence it will say that abortion should be permissible only on certain carefully specified grounds; and 299 if that is Parliament's intention, it is imperative that there should be adequate means of checking the claim that an abortion was performed on one or other of those grounds.

Your Lordships will recall that my noble friend's original Bill, which we considered on Second Reading, refers to a pregnancy being terminated by the doctor "in good faith" that one of the specified grounds made the operation necessary. We think that the words "in good faith" should be retained, because the absence of good faith—for example, where there were no grounds for believing the operation was necessary under the terms of the clause—would enable a prosecution to be mounted. Of course we should also still want, as Lord Silkin proposes, the requirement of a concurring opinion from another doctor and certificates from both doctors—but neither these words nor the alternative proposed by Lord Dilhorne would provide us with a real case for prosecution when doctors acted in bad faith.

Another question which arises from this matter is that the present Bill provides that where a doctor is prosecuted the onus of proof that he did not act in good faith rests on the Crown. In discussion I suggested—and I believe the noble and learned Viscount concurred—that this was too onerous a burden. My noble friend Lord Silkin has now avoided this problem by the form of his present Amendment, and he proposes at a later stage to move an Amendment to leave out the present clause on onus of proof. The Government would not wish to object to the onus of proof resting on the Crown if a certificate from both doctors and notification are required, because the prosecution would then have advance notice of the grounds on which it was alleged the abortion had been performed, and if there was failure to notify, even after criminal proceedings had been started, that could be evidence on which the prosecution might rely to establish that there was not good faith.

There are several other similar and related points which we have under consideration, and obviously we must reserve the right to consider the whole problem further; and Parliamentary Counsel will also need to consider the precise relationship between the present proposals and 300 Section 58 of the Offences Against the Person Act. Meanwhile, the Government agree that, if it is found necessary, the Bill should deal expressly with onus of proof. This point can be considered with the others I have mentioned with the redrafting of the whole of Clause 1 after your Lordships have revised it.

In the Government's view, it is also necessary, as I mentioned earlier, to make some provision as to the place at which termination of pregnancy may be carried out, because, as my noble friend Lady Summerskill mentioned and as we all know, this is an operation entailing some risk—and perhaps a good deal of risk—to the woman, and it is surely essential that it should be carried out either in a hospital or a registered nursing home which has the necessary facilities. When we reconsider this matter we can take account of Lord Silkin's point about the need for a properly qualified surgeon to perform the operation; and if the woman goes to hospital, obviously she will have the necessary stay according to her condition after the operation. This is in accord with the views of the British Medical Association, and before the Report stage we should like to consider how it might be implemented.

May I now deal briefly with the particular issue of the choice between Lord Silkin's proposal, that the certificate should be signed by the doctor who performs the operation and one other and Lord Dilhorne's alternative suggesttion, by the woman's own doctor plus the hospital doctor or two hospital doctors: and I would point out that in Lord Dilhorne's proposals neither of the two need be the operating doctor. If the noble and learned Viscount's Amendment was accepted, two doctors could certify, neither of whom had anything to do with the operation.

§ VISCOUNT DILHORNE

The noble Lord has pointed that out, but I am not sure whether he is saying there is anything wrong with it or not.

§ LORD STONHAM

That is what I am going to deal with, and that is why I pointed it out. This raises two issues: first, whether the Bill should restrict the medical practitioners who may issue certificates; and secondly, whether the operating doctor should be one of the 301 signatories. We appreciate that Lord Dilhorne's proposal—and he made this quite clear—is intended as a safeguard against abuses; against certain doctors who would be ready to provide certificates without asking too many questions; against doctors who might set up in partnership and who, in fact, might almost be prepared to sell certificates. In our view, however, the method proposed by the noble and learned Viscount could exclude doctors whose opinions may be needed and ought to be accepted. For example, when the effect on the mental health of the mother was at issue, a psychiatrist might be needed, and some well-qualified and responsible psychiatrists practise outside the National Health Service.

Safeguards against abuse would be provided, as I have suggested, by the retention in Clause 1 of the requirement as to good faith; by the requirement for notification; and, as I also suggested, by specifying the places at which operations may be performed, all of which I hope your Lordships will agree should be included in the Bill on Report. Meanwhile, the Government are strongly of opinion that no doctor should be expected to carry out this operation unless he himself considers it a wise course to take, and for this reason we agree with my noble friend Lord Silkin that there are good grounds for requiring the doctor who operates to be one of the doctors who certify that the operation is necessary. On this particular matter, subject to the other points that I have made with regard to safeguards, we prefer the method of certification proposed by my noble friend Lord Silkin.

§ VISCOUNT WAVERLEY

I wish to add only two things, and that quite briefly. The first is that the noble and learned Viscount, Lord Dilhorne, spoke many times about the "patient's regular doctor". It seems to me exceedingly important that this character should be identifiable. I wonder whether at this stage the noble and learned Viscount could tell me how this identification is to be made.

§ VISCOUNT DILHORNE

If the noble Viscount wants me to answer the question now, may I say that I should think that when a woman has a regular doctor she knows who he is, and it is easier for people to find out who that regular doctor 302 is. If she has not, then she has the alternative procedure.

§ VISCOUNT WAVERLEY

With the greatest respect, where a National Health Service patient is concerned she has the doctor to whom the National Health Service card has been given. But by no means all patients are National Health Service patients. In the part of the country where I practise medicine there are significant numbers of patients who are private patients, who live in the country at week-ends and live in London during the week. They have two private doctors, one in the country and one in London, and they seem to me to be equally ill in both places. I find it difficult, in my capacity as consultant, to find out from either of the two doctors or the patient who is the regular doctor. It is a cause of great difficulty to me in my professional life. It seems to me that this point should be clarified to some extent.

The only other point I want to make is to support strongly the views of the noble Baroness, Lady Summerskill, and the noble Lord, Lord Stonham, about this business of a registered medical practitioner employed in a hospital. There are, as has been said, large numbers of general practitioners who at the moment hold short and not very important part-time contracts for half a session a week, and who could well, if they so wished, act in collusion with any other partners of theirs. I would point out, also, that if the proposal regarding the medical assistant category, which I think is being strongly supported on all sides, is implemented, there will be an even larger number of such general practitioners holding part-time contracts in the hospital but who have nothing whatever to do with decisions about termination of pregnancy. They may be working in the skin department, in the ear, nose and throat department, or in the eye department. They have no qualification, at any rate on that ground alone.

§ LORD AMULREE

I should like to support what the noble Baroness, Lady Summerskill, said about the location where this not entirely simple operation is to be carried out, and I am pleased to know from the noble Lord, Lord Stonham, that this opinion is viewed somewhat sympathetically. All I want to suggest, in supporting in general the 303 Amendment moved by the noble and learned Viscount, is that the hospital doctor should be a consultant. Whether we can specify that he should be a consultant—and I certainly do not mean by that that he should be full-time employed in the hospital; that seems unnecessary and it would be difficult to ensure—I do not know, but I certainly think he should be, for the reasons that have been put forward, so that one can be certain that the woman applying for an abortion shall be seen by a person who knows what he is talking about and, if possible, will be the person to perform this operation, which, as I have said before, is not carried out without risk.

§ LORD TAYLOR

Like the noble and learned Viscount, I read Sir Dugald Baird's description of what he had been doing in Aberdeen for many years, and it seemed to me that he was behaving extremely humanely and intelligently. The reason why he was able to behave so humanely and intelligently was because, as the noble and learned Viscount said, he was operating under the laws of Scotland, and they do not have a coroner in Scotland. This is not a joke; it is a serious fact. In Scotland, they have a procurator fiscal, and an inquest does not follow automatically when an abortion leads to death. Inevitably there will be deaths if one introduces widespread abortion, but provided it is done honestly, decently and properly, as Sir Dugald Baird has been doing it for many years, good and well; it is worth while doing it. There will be a tiny risk, but the risk attached to the Bill of the noble Lord, Lord Silkin, is that it will not be done when it ought to be done, rather than the other way round, for the doctors will be frightened, as Sir Dugald Baird was not frightened because he did not have the shadow of the coroner hanging over him all the time.

I entirely agree with almost everything my noble friend Lady Summerskill has said. I think the doctors must be of consultant status. I believe it will usually be two doctors of consultant status, rather than a general practitioner and one consultant, and for this reason. Many of these cases are "scruffy"; they 304 are sad, miserable little children who have run away from home, who may have been in trouble with the police authorities, who may have been in borstal, and who may have no general practitioner. More is the pity. They have no settled family life, and thus decisions will have to be made by a consultant physician and an obstetrician, or a consultant physician and psychiatrist, or by such people in hospital. This must be the usual procedure if this is to be humanely done.

§ LORD AMULREE

May I interrupt the noble Lord for one moment? It was made abundantly clear at Second Reading of this Bill, and it is certainly my experience in the gynæcological department of the hospital in which I work, that the majority of women patients are married women who have had several children and cannot bear the idea of having any more. The poor little thing who is having her first child does not constitute the majority of cases.

§ LORD TAYLOR

I accept my noble friend's correction at once. He is quite right, of course: the majority are worn-out ladies who have had a large number of children, but the others are the ones who will present the greatest difficulty, and those with whom Sir Dugald Baird was quite prepared to deal. I hope, therefore, that the Committee will accept the noble and learned Viscount's Amendment, but that it will be altered to provide that it will not be just, "employed in a hospital", but "employed as a consultant in a hospital". I do not think it matters whether he is an operating consultant or not, because no operating consultant will do the operation, or allow it to be done, unless he approves. In fact, I can see certain advantages in having two other people, as well as the consultant, agreeing to it.

The point that has exercised me is the place. I am quite sure that it should he done only in a hospital or a nursing home, as my noble friend Lord Stonham says. Indeed, I should be happier if it were done only in a hospital, hut I can see that this might be difficult, and I should be prepared to support the view that it should be a registered nursing home.

§ LORD STONHAM

If I might make it clear, it would have to be not merely 305 a registered nursing home, but one which could satisfy the Minister of Health that it had suitable facilities.

§ LORD TAYLOR

I am very glad to hear that it would have to be a registered and approved nursing home. Given those two assurances, and given one or two doctors of consultant status, plus the general practitioner or a second consultant, I can see no objection to this at all. It seems to me to be a thoroughly sensible idea. I hope very much that my noble friend Lord Stonham and the Government will not feel that psychiatrists outside the National Health Service must be included. I think this would be open to very great abuse. A reputable psychiatrist within the National Health Service could always he obtained, and it would be a temptation which should not be put in the way of some of us who might not be able to withstand it.

§ LORD SEGAL

I am afraid that I intervene in this debate under the disadvantage of not having had the opportunity of listening to the whole of the debate as it has progressed so far. I rise simply to question one or two remarks that I have heard since I entered the Chamber. In regard to the statement that one of the certifying doctors must be of consultant status, I think we ought to weigh very carefully what this may involve. Are we to insist that he must have consultant degrees? If so, we must realise that many doctors are in a consultant status in large provincial hospitals, or in small hospitals in relatively thinly populated areas, but do not possess consultant degrees.

The other point to be considered is this: must we always insist that this operation, involving a certain degree of risk but, nevertheless, relatively trivial, must always be carried out by a consultant of the hospital? Very often an appendectomy or a hernia operation is carried out by a junior hospital officer on the instructions or request of a hospital consultant, and I think it would be grossly unfair to expect every abortion necessarily to be carried out only by a hospital consultant.

A further point I would mention is that raised by my noble friend Lord Stonham, who said that as a safeguard he would like to insert a clause that both doctors who certify must be acting in good faith. I feel that is rather undesirable. Although we admit that 306 there may be certain members in every profession who may come under suspicion, nevertheless, I think it is undesirable that the law should set itself up as a judge of a doctor's good faith. We all know that there exists a disciplinary body for the profession, the General Medical Council, and to my mind that body alone is the only properly constituted body which ought to judge a doctor's good faith.

§ LORD STONHAM

If my noble friend will allow me, I should like to point out that the medical body to which he has referred cannot prosecute a doctor who has not complied with the conditions in the Bill when it becomes an Act, and it is no use making provisions of this kind unless it is possible for a successful prosecution to be launched.

§ LORD SEGAL

While accepting fully that point of view, nevertheless one ought to put forward the opinion that the General Medical Council can set itself up in judgment upon a doctor as a result of a complaint by any member of the public, whether a patient of the doctor or not, by a minister of religion, to whatever denomination he may belong, or even on the plea of a Member of Parliament who may object strongly to this provision. So I personally should very much prefer the deletion of these words about judging a doctor's good faith. Where the evidence is quite clear, as in the case where a doctor issues a certificate known to he false, then of course there is no question of a prosecution being justified. I should prefer this matter to be left to the disciplinary body of the profession. At this stage, that is all I would venture in the way of criticism of the provisions so far discussed.

§ VISCOUNT DILHORNE

I do not know whether any other noble Lord wishes to say anything about this Amendment. I am grateful for the consideration that has been given to it. May I say straight away that I think I was wise in the language I used about the registered practitioner in the hospital, because, with my knowledge, I should have found it very difficult to define with greater precision the kind of person whom I had in mind. I am very grateful indeed for the suggestions that have been made. What I had in mind was to have someone holding a responsible position in a hospital 307 who would give the certificates. I was not going into the difficulties and details of what precisely should be his status or degrees. My object, and the object of this Amendment, is to secure that a certificate should be given by someone holding a responsible position. The noble Baroness, whose support I welcome, suggested it should be a surgeon with gynæcological experience. The suggestion has been made that it should be a consultant.

I should be prepared to accept what was thought to be the right amendment, giving more precision to my Amendment, at a later stage, because I want to get this right; I think we are all agreed that we want a certificate to be given by someone holding a responsible position in a hospital. I do not myself want to define it so narrowly that it is going to be difficult for a woman to get the certificate. That is one of the things that were bothering me when I thought about seeing whether I could draft some definition. I do not want it to be difficult for a woman in a remote part of the country to get in touch with the people who can give her the certificate.

The noble Viscount, Lord Waverley, asked me the question who was the regular doctor, and could that be defined. I am not going to seek to attempt to do that. Whether or not a woman has a regular doctor or, as in the case he mentioned, the luxury of two regular doctors is a pure question of fact; it is not a question of law. I thought myself it was valuable to make provision for the opinion being given of the women's regular doctor, if she had one—not every woman has, but where she had—so that the other doctor would get the fullest possible information about all her circumstances and background.

I must say I was most disappointed in the views expressed by the noble Lord, Lord Stonham. I should like to deal with those in a little detail. He said—and I agree with him—that there must be two concurring opinions. He then made the point that the Bill should stipulate that the certificates must be given in good faith. To suggest that doctors would give certificates in bad faith I regard as an insult. The presumption is that where a certificate is required by two doctors, it is given in good faith. There is no need, in my 308 view to express that. Furthermore, to insert those words will not in the least degree facilitate the institution of a prosecution. If the noble Lord and the Home Office think it does, I hope they will think again.

As to the clause put forward by the noble Lord, Lord Silkin, supposing two doctors do not act in good faith. Let us just see what that means. It means that they certify that in their opinion (and this is a matter of opinion) the grounds specified in the Bill exist for an operation when in fact that is not their opinion; that is what not acting in good faith must mean. But without those words in the Bill, if it could be shown that two doctors had certified that something was their opinion when in fact it was not, those doctors could not claim the protection of this Bill; they would be open to prosecution. Therefore, the inclusion of the words "in good faith" is not only insulting but wholly unnecessary, for they add nothing.

I thought when hearing the noble Lord speak—and also from one of his interventions, when he said something to the effect that there was no use passing a Bill of this kind unless a prosecution was possible—that perhaps the Home Office were focussing too much attention on the possibilities of prosecution. If we get the machinery right with provision for certificates from responsible people in the medical profession, the risk of a fraudulent or false certificate is minimal. The chances, even if it is false, of the prosecution being able to prove that the opinion given was false—and it is a matter of opinion—are in any event negligible; and the noble Lord had better face up to that. So that second point on which he laid so much emphasis is, I think, a bad one.

Now I come to the hospital requirement. Of course we are all agreed that the operation should be done with great care, in conditions of cleanliness and in a place where there can be proper attention. But surely it is without precedent to require the legality of any operation which a patient wants to depend upon the place of its performance. I would ask the noble Lord: is there any precedent for that, or is it something conjured up by the Home Office, with a view perhaps to making it more possible to prosecute? I can think of none. I think that where the law provides that an operation should be lawful, it is left for the patient and her 309 medical advisers to decide where that operation should take place.

Provided there is the test that responsible people in the medical profession must give their opinion that the operation is necessary, I think we should rely on them to secure that the operation is performed under suitable conditions and in a suitable place. It would be entirely wrong to accept the Government's view that it would be necessary to say to this woman, "You cannot have your pregnancy terminated lawfully, because the Government insist that it can be done only in a hospital, and it cannot be arranged for it to be done in a hospital until after the baby is born." What about the pressure on accommodation in the hospital? Has the noble Lord considered that? I do not know—there are no statistics—the numbers of illegal operations that take place now. The numbers may be very considerable; and the need for the operation to take place early we all know. I am certainly not against it—indeed, I would hope that the vast majority of these operations will take place in a hospital or registered nursing home, or nursing homes, approved by the Ministry of Health. But to lay that down as a condition of the legality of the operation would, I think, be entirely wrong. I do not want to say any more about that because it is rather outside the scope of this Amendment.

This Amendment to the Amendment, as I say, is designed only—and the noble Lord, Lord Silkin, said it of his provision—to secure an objective. If my Amendment to the Amendment is carried, I will gladly consult with the noble Lord, Lord Taylor, and the noble Baroness, Lady Summerskill, and others, to see if we can find a proper way of defining the individual who holds a position of such responsibility as we all have in mind.

§ LORD TAYLOR

Before the noble Viscount completes his observations, would he be prepared to consult on this question of place? Because although one sees the force of what he says, there is force the other way; namely, that there is no other operation which is surrounded by so much legal difficulty, where there are so many penalties and dangers, for both patients and surgeons, and where, as a safeguard for both, there is much to be said for having the operation performed in a place of known safety.

§ VISCOUNT DILHORNE

With great respect to the noble Lord, I think that on this point there are two currents of thought which are somewhat conflicting. If we look at it from the point of view of the patient's safety, there is a great deal to be said for having the operation done in the hospital or the registered nursing home. But I should not like to lay it down that, from the patient's point of view, it must he done there. That is the point I am making. So far as the patient is concerned, I would leave it to her medical advisers. Once you get a certificate by responsible people, they will be able to advise, and to advise well. So far as the patient is concerned, I see no need for making the legality of the operation depend upon the place of its performance. Nor do I see that it is necessary to do so from the point of view of the medical profession, because if the noble Lord's Amendments are carried with my Amendment, the legality will not depend upon the place of operation: the legality will depend upon whether the procedure prescribed is followed and whether the certificates required are given by persons in authority.

But I am willing to discuss this matter further with the noble Lord. There are those two different points of view. I am reluctant to say at this moment—it does not arise on this Amendment—that I would confine the operations only to those which take place in hospital or in a registered nursing home, because I think that might be unduly restrictive. The only issue on this Amendment is whether there should be a certificate of either a regular doctor, if the patient has one, and one responsible doctor in the National Health Service—who can be defined later—or the certificate of two such doctors.

§ LORD STONHAM

Before the Amendment to the Amendment is put, I should like to answer two points which have been made by the noble and learned Viscount. The first is his suggestion that the requirement of suitable conditions may have been conjured up by the Home Office in order to make prosecution easier. I assure him and the Committee that there is no substance whatsoever in that suggestion. The suggestion that I made clear is one which accords with 311 the views of the British Medical Association. The words I have used are those suggested by the Ministry of Health, and the other half of that is that the Ministry of Health consider that, in general, the Service can be expected to meet the requirement if such requirement is put into this Bill. So much for the question of suitable conditions, which would be entirely—and I should have thought this would have had the support of every noble Lord—for the welfare of the patient.

On the other point, the question of good faith, which is an important legal point—I do not wish to pursue it in any detail—the noble and learned Viscount said the suggestion that two doctors might give a certificate in bad faith is insulting. It is no more insulting than to suggest, as he did, quite truly, that two doctors might set up in a partnership and let it be known that they would be willing to accept abortions.

§ VISCOUNT DILHORNE

The noble Lord has completely missed the point. The point is the distinction between assuming in a Statute that members of the medical profession act in good faith, as they generally do, and stipulating in terms in a Statute that they must act in good faith, as if they generally did not. That is where the insult would be. That is what would he insulting. I also asked the noble Lord whether there was any precedent for making the legality of an operation dependent upon the place of its performance being in the Statute. Could he answer that question?

§ LORD STONHAM

I am afraid I cannot give a precedent now, but I will certainly let the noble and learned Viscount know the answer to that point. On the point of good faith, our understanding—and I tried to make this clear—is that the suggested new clause does not permit prosecution if there are two certificates. But in any event what we want is that there should be an offence only if there is bad faith, and not if a doctor has made an honest mistake. That is the whole position. But if there has been bad faith—and there may be some cases, as we all admit—then it should be possible for a prosecution to lie. This provision is a most difficult legal point which will require a great deal of consideration before we come to Report. I thought I 312 should make it clear that we feel that it would be a necessary provision.

§ VISCOUNT DILHORNE

If I may add a word, would the noble Lord bear this point in mind? For the operation to be lawful, what is required is to have a certificate by two doctors of their opinions. If they certify together on a piece of paper which contains something which purports to be their opinion when in fact it is not, they have not given two certificates of their opinions and therefore they cannot obtain the protection of this clause. I would ask the noble lord to give consideration to that. I think that if he does so he will find that the words "in good faith" are unnecessary.

§ BARONESS SUMMERSKILL

May I ask my noble friend one question? He need not answer me now, but he can let me know. This suggestion that the words "in good faith" should be on every certificate seems to me to be absolutely novel. If it is so important, why have not his Department seen to it that the hundreds of thousands of certificates which doctors sign have on them the words "in good faith"? Does it mean that without good faith the certificate is not legally valid?

§ LORD STONHAM

My noble friend has completely misunderstood what I said. I am sorry if I did not make it clear. I never suggested at any time the form of the certificate that should be given, or that the words "in good faith" should appear on it. I am merely suggesting that under the Statute it should be necessary—and the exact form of words I am not yet suggesting—to act in good faith; indeed, my noble friend Lord Silkin has those words in the original Bill. I am merely saying that they should be retained in the new Bill, and I did not hear anyone suggest, when my noble friend moved the Second Reading of his own Bill, that to suggest that any doctors might act otherwise than in good faith was insulting.

§ LORD COLERAINE

I speak with great diffidence, because I am neither doctor nor lawyer, but I wonder whether my noble and learned friend can clarify one point that raises difficulty in my mind. He said, I think, that if it was not the real opinion of the two registered medical practitioners that the termination 313 of pregnancy was justified, they could not get the protection of the Bill. As I read the proviso, it would seem to me that it does not insist that it should be the opinion of these practitioners, but only that they should be prepared to certify that it was. Am I wrong in that?

§ VISCOUNT DILHORNE

If two doctors certify that it was justified, I should have thought it was clearly implied that that was their opinion. If they have given a certificate which does not state their opinion, it is not a certificate of their opinion. I think it is as simple as that.

§ LORD SILKIN

A great part of the discussion has taken place on words which are neither in my Amendment which is before the Committee nor in Lord Dilhorne's Amendment to the Amendment. The phrase "in good faith" has been used. My noble friend Lord Stonham is seeking to put into both of our Amendments something which neither of us inserted. It is true that in the original Bill there appeared the words "in good faith", but I explained to the Committee that I had entirely recast the Bill, I had thought about it again, and had come to the conclusion, as did the noble and learned Viscount, that those words were unnecessary, and indeed rather offensive; and they have been left out deliberately. If, however, I am advised by the Parliamentary draftsmen that those words are essential to the Bill, I shall, naturally, be ready to listen to what they have to say.

However, the question before us at the moment is not whether there should be a second opinion, but what should be the nature of the concurring opinion. Those who have spoken to-day have not agreed on what it should be—they have not even agreed with the noble and learned Viscount. Certainly I would agree that something more than the words in my Amendment should be included. I accept that one would need some kind of qualification as to what the second opinion should be.

It has been clearly shown that the noble Viscount's Amendment, as it stands, will not do; in fact he has admitted it. I suggest to him that we should all think again as to exactly the words that we want to include. We are 314 not clear at the moment, and to include something in place of my provision which itself it not satisfactory is not very good business. I suggest that we should all get together to try to thresh out something, and if the noble Viscount will then put down an Amendment it will probably go through without any difficulty. That would probably be the simplest way of getting over the impasse in which we find ourselves at present.

§ VISCOUNT DILHORNE

I have listened to the noble Lord sympathetically, but a little pessimistically. I do not want to reveal the contents of the long discussions which I have had with the noble Lord about this Bill, but I can go as far as to say that, up to now, it has been a point of great controversy between us. I have been saying, "I want to see two responsible doctors in the National Health Service give the certificate", and the noble Lord, having moved from one general practitioner, moved from two, and was not prepared to go any further. If we could get the principle established as the wish of the House, I do not think that the formulation of this as a matter of words would be difficult; but it is difficult to see from the speeches exactly what is the view of the Committee on the question of principle.

The principle raised by this Amendment is whether it should be a certificate by any general practitioner, or whether, as my Amendment proposes, it must be a certificate, if not by the woman's regular doctor, by responsible persons employed in a National Health Service hospital. If the Committee are in favour of what I have put forward, I think we could agree about how one should define "responsible persons in the National Health Service". It would be valuable, if we are to have further discussions—which I, for one, should welcome—to have an expression of view from the Committee on what is the question of principle raised by this Amendment. I feel that this is neccessary.

If the Committee say, "No, we are quite content to leave the certificates to be given by any medical practitioner", there is no need for further definition. If, on the other hand, the Committee say, "Yes, it should he the woman's regular doctor, if she has one; but, if not, two responsible people in the National Health 315 Service", then at a later stage we can proceed to define the position in relation to those responsible persons. While I am reluctant to disagree with the noble Lord, I feel that there would be an advantage in coming to a conclusion on this issue.

§ BARONESS SUMMERSKILL

The noble Lord left out hospitals. I am sure that he meant to say, "in the National Health Service hospitals".

§ VISCOUNT DILHORNE

Yes, I did mean that. I am obliged to the noble Baroness.

§ LORD CONESFORD

Might I make a suggestion to the noble Lord, Lord Silkin? The Amendments moved by my noble and learned friend Lord Dilhorne are three in number, although, of course, they have all been taken together. Amendments Nos. 2 and 3 merely improve the drafting, and the main contribution is made by the noble Viscount's third Amendment, which is No. 4 on the Order Paper.

I have listened with an open mind to the whole of the discussion, and I should like to express my gratitude, as a lay Member of the House, to the medical Members who have given us their opinion. What has been common to them all is that something about qualifications should be included, and the Amendment of my noble and learned friend deals with qualifications. As Lord Silkin rightly said, it has been generally agreed that it is not entirely satisfactory and will not do, as it stands, but I suggest that it will be easier to amend it if it is in the Bill than to start afresh with no mention of any qualifications, as we should do if we did not accept my noble and learned friend's Amendment. Therefore, I suggest that the noble Lord, Lord Silkin, might accept this series of Amendments, leaving open what the qualifications should be. He would thereby avoid the necessity for any Division, and would do his own cause no harm.

§ LORD SILKIN

I do not want to start off by dividing the Committee on an issue which is not of very great importance: that is to say, whether the noble and learned Viscount's Amendment, unsatisfactory as it is, should go into the Bill, or whether my Amendment should be 316 retained, with an undertaking that it will be amended before the next stage. In the interests of good will, and hoping that I shall get a good mark hereafter, I am prepared to accept the noble Viscount's Amendment to the Amendment.

§ VISCOUNT DILHORNE

I beg to move the second Amendment to the Amendment.

§ VISCOUNT DILHORNE

I beg to move the third Amendment to the Amendment.

§ LORD SILKIN

The noble Earl has quite clearly explained the difficulty in which he finds himself, which is that he does not want to extend the meaning of paragraph (a) beyond the actual, immediate effect of the pregnancy on the woman. I do, and that is the difference between us. I cannot pretend, of course—and I am not pretending—to be an authority on this subject, but it is conceivable to me, and I have known of such cases, that a woman can safely survive a pregnancy, but the after-effects of the pregnancy are very serious to her. I need not go into detail about that, because I do not know enough about the matter, but, as they stand, the words in my Amendment are intended to cover these cases. In other words, the danger to the woman is not ended at the delivery; it may continue afterwards. Therefore I hope that the noble Earl will be prepared to accept what I have said, and not to press his Amendment.

§ BARONESS SUMMERSKILL

Having had babies, I should like to ask whether the noble Earl has ever considered this point. A woman might have a chronic illness which has not entitled a doctor to procure an abortion, because he does not believe that she will die at childbirth. So she is carefully looked after during her pregnancy and after the childbirth, and she survives, but she is still a sick woman. Has the noble Earl considered the appalling strain to which that woman is subjected after the confinement, when she has to care for the child? I cannot quite understand, when he suggests that a woman is not subject to any strain after having a child. I should have thought that the strain to which a sick woman was subjected was much greater after the birth of the child, and, indeed, for many 319 years after, when she may be up day and night with a screaming baby.

§ VISCOUNT WAVERLEY

I will not take up your Lordships' time for more than a moment or two. On this question of leaving out "after", there is one relevant consideration, and that is of post-confinement psychoses, which are mostly depressive illnesses, often accompanied by a risk not only to the mother of suicide, but also to the child of infanticide. The latest figures show that 86 per cent. of all psychoses associated with pregnancy occur after the confinement rather than during it. Furthermore, there is some evidence, although this is not common, that such post-confinement illnesses are repetitive and occur in one confinement after another. There would, therefore, in certain circumstances, be a perfectly valid ground for terminating a pregnancy when a situation has recurred in the postpartum period.

§ LORD STONHAM

There is one other point which the noble Earl might like to consider. It is generally accepted that the words used by my noble friend in paragraph (a) of his Amendment give statutory effect to the present position under case law. If I may remind the noble Earl, in the Bourne case the judge said in his summing-up: If pregnancy is likely to make the woman a physical or mental wreck, the jury is entitled to take the view that a doctor, who, in these circumstances, and led by his belief, operates, is operating for the purpose of preserving the life of the woman. That implies that, in considering the risk to the mother's life, a doctor is entitled to consider the possible effect of the pregnancy on her health, not only before or at the time of the child's birth, but also afterwards. Therefore, if the noble Earl succeeded in taking out the words he seeks to remove, and if this Bill were passed, it would make the statutory position more restrictive than the present position under case law.

§ THE EARL OF LYTTON

It is clear from all the comments that there is an objection on the part of those with a medical interest in the mother to the exclusion of the word "after". However, nobody has answered whether, by the inclusion of this word, there is any intention to open the door further and to let 320 in anything implied in these other paragraphs. I am not going to press the matter further, but I should like to ask generally whether it is the intention to retain something of the character of the provisions of paragraph (c) as well as these immediate clinical after-effects. I gathered two things from what the noble Baroness said. First, I wonder if she understood that I was not contemplating (I thought I made it clear) that a severe illness could start without anything whatever being foreseen; that it could be predicted that she might be exceedingly ill afterwards when there was no risk at delivery and no risk during the pregnancy. All this is prediction. I do not wish to press the point, but that is what I was trying to get at.

Beyond that, I have no wish to eliminate proper treatment if it can be stated that a prediction of the condition after can be made independently of that during delivery, and during pregnancy. I think I should like a lead. Opinion on the medical side strongly supports the retention of "after" for clinical reasons, and I should like to ask the Government—perhaps the noble Lord, Lord Stonham, will tell us—or the noble Lord, Lord Silkin, whether it is intended, if paragraph (c) is eliminated, that these provisions should remain through the retention of the word "after".

§ THE DEPUTY CHAIRMAN OF COMMITTEES

Is the noble Earl withdrawing his Amendment?

§ THE EARL OF LYTTON

I asked a question hoping that it would be answered before I withdrew the Amendment. If not, my next step is to ask to withdraw.

§ LORD SILKIN

Perhaps I should say, as a matter of courtesy, that I would rather not say what would happen in the very unlikely event of paragraph (c) being defeated.