§ 8.32 p.m.
§ Baroness Masham of Ilton
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Baroness Masham of Eton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD RENTON in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Saving for necessary surgical operations]:
§ The Deputy Chairman of Committees (Lord Renton)
I have to point out that if either the first or the second amendment is agreed to, I shall not be able to call the third or the fourth amendments.
Lord Kennet moved Amendment No. 1:
Page 2, line 3, leave out paragraph (a) and insert—
§ The noble Lord said: This Bill has been so often before us that I shall be very brief in introducing this amendment. There is only one substantial point which still troubles the House, and that is the matter of "custom and ritual". The Government have put the words in the Bill as a roundabout way of ensuring that the Royal College of Gynaecologists has the freedom that it needs to carry on practising in its traditional manner. This is in the Bill and most of the amendments now before us have the effect of taking it out of the Bill.
§ It is a narrow, departmental point; it is a DHSS point. The Bill as drafted by the Government undoubtedly prohibits what we all want to prohibit, but it does so in a way which I believe may cause the Bill to fail of its purpose. If the words stand I believe it will cause the people concerned to gather round to protect the custom and ritual which is attacked by the wording in the Bill. I believe that when the day comes and the first person is accused in court of an offence under the Bill and when the press takes note of it, as it will, the people concerned may feel even more wounded and afraid than they do now by the existence of these words. It would, therefore, be wise, if we can possibly find a way to do so, to get rid of the words at this stage.
§ I hope that the noble Baroness, Lady Trumpington, can give us some news about this, although I do not expect that she will be able to do so. Unfortunately the Government show all the signs of having dug in. Over the past months—nearly a year—the Government have refused to attend meetings for consultations with interested parties. They have refused to meet the friends of the earlier Bill for consultations on the details. They have ridden roughshod over the representations of the Commission for Racial Equality, their own statutory advisory body. I must say that I am surprised the Home Office, and Home Office Ministers, have gone along with this form of wording. The old Colonial Office, if we had been in another country, would not have tolerated this approach for a moment. It would have been wiser than to lay down a formula like this. Are we to do worse in this day and age than would have been done by the Colonial Office before the Second World War?
§ I read out at Second Reading the protests from the organisations of black women in London who will be concerned by this Bill. I read out the protests by the Commission for Racial Equality. Have the Government, since Second Reading, been able to find time to see representatives of the communities who will be hurt by this wording? Has the sponsor of the Bill been able to find time to see representatives of those communities? If not, I do not believe that the Committee should let this wording go through.
Five of the seven amendments before the Committee aim to remove this wording. With the leave of the Committee, I shall say something about all of these amendments because three of them are alternative ways of making it possible. For myself I recommend to the Committee, and will happily agree
to, any of those three which would have the effect of making it possible safely to remove the offending words—whichever amendment does that best. The amendments are Amendments Nos. 1, 3 and 4. They all take different routes to enable Amendment No. 5 to be accepted. Amendment No. 5 is the amendment which proposes to leave out the offending subsection.
Amendment No. 3: Page 2, line 3, leave out ("physical or mental").
Amendment No. 4: Page 2, line 3, leave out ("or mental").
Amendment No. 5: Page 2, line 14, leave out subsection (2).
Amendment No. 1, which I commend to the Committee, removes mental health as a reason for doing these operations altogether and leaves only physical health and minor cosmetic operations as permissible reasons. Not so long ago the noble Baroness, Lady Trumpington, answered a Question for Written Answer which touched on this very subject. She said in the Written Answer that the Royal College of Obstetricians and Gynaecologists,
point out that there are some surgical operations that are necessary for the physical and mental health of women which have nothing whatsoever to do with circumcision performed for traditional or cultural reasons. The college would be opposed to any statutory limitations on these legitimate operations".—[Official Report, 23/5/85; col. 475.]
In a letter which she recently wrote to the Government Chief Whip, which she was courteous enough to circulate to those who had spoken in earlier debates, the noble Baroness said that,
examples of these operations would include cases in which a woman became anxious and depressed because her external genitalia, although functionally normal, are of unusually large size or unusual in shape. The purpose of surgery in that case would be to change the size or shape to an acceptable appearance which no longer caused the woman distress".
§ I submit that that is a definition of a cosmetic operation—to change the size or shape to an acceptable appearance. It is for that reason that we propose in the amendment in the name of my noble friend Lady Seear and myself that minor cosmetic operations should be permitted without any reference to health at all, whether physical or mental. Such operations to the external genitalia of women should be permitted just as freely as they are permitted to the external genitalia of men, or, come to that, to noses or chins.
§ That formula may still ban something that the Royal College wants the freedom to do, and I want at this point to ask a precise question. If the Government hold that it bans something that the Royal College wants to do, what is that thing? Will the noble Baroness please tell the Committee what it is that the formula bans if it bans something that it should not? If, on the other hand, the word "cosmetic" is found to be too vague—and I agree that it is not very precise—I should like a rather precise answer from the Government. "Cosmetic" is vague, we agree. Are not "health", "custom" and "ritual" equally vague, and is not the word "required" equally vague? Many of the words in the Bill are vague and often many words in good law are vague, too. If one word is more vague than others, I agree that we should try to do better, but if it is about equal with the others in vagueness, there can be no objection.
§ Exactly what case is it that the Government fear would be let through? I have asked already what case they fear would be banned which should not be 573 banned. If they hold that there is a loophole, what case is it that would be let through which should not be let through? On Second Reading the noble Baroness informed the House of her strong conviction that certain things would be let through and the wording would not do. It is not enough for the Government simply to inform Parliament of their strong conviction about something. They have to tell us why it will not do. What injustice or cruelty would result from the adoption of those words? We are the deciders here and we must not be stampeded by any outside opinion, even that of a highly qualified Government department.
§ It may be that in the amendment that my noble friend and I have put down we have inadvertently fallen into confusion, and I should like to raise this at this point. I am not quite sure that I understand the wishes of the Government and the sponsors about what sorts of operation shall be permitted to be performed by persons holding what qualifications. In this matter—and I am sure that I speak for all of us—we should be happy to be guided by the Government. It may be that if something has gone wrong in the wording on that score, we should have an opportunity to put it right at a later stage.
With the leave of the Committee, I now turn briefly to the amendments which are coming up. Amendment No. 2, from the noble Lord, Lord Coleraine, is open to the objection that it does not remove the worrying words. "Custom and ritual" are still there as large as life at the end of the amended text.
Amendment No. 2: Page 2, line 3, leave out paragraph (a) and insert—
("(a) is performed by a registered medical practitioner, and—
§ Amendment No. 3, from the noble Lord, Lord Hatch, appears to me to open a wide loophole in that by leaving the word "health" unqualified it will be quite open for people to plead mental health without any further ado. Amendment No. 4 from the noble Lord, Lord Hatch, seems to me admirable, and if the Government and other noble Lords were able to accept it, I should be quite happy to withdraw my amendment in favour of it. Taken together with Amendment No. 5, it would restore the present Bill to the original shape of the Bill that I twice introduced into the House over the past two years. Amendment No. 5 is the main point of this whole discussion, and is the one to leave out the offending subsection.
Amendment No. 6 seems to me to be another ingenious way to achieve the effect that we desire and has, I believe, much to commend it.
Amendment No. 6: Page 2, line 16, leave out from ("any") to the end of line 18 and insert ("non-medical factors").
Amendment No. 7, in the name of the noble Lord, Lord McNair, I must say I do not fully understand and I await his explanation of the purpose that he desires to achieve by it.
Amendment No. 7: Page 2, line 18, leave out from ("required") to end of line and insert ("for traditional or cultural reasons").
§ Perhaps I may take the opportunity to make one more general point. I believe that, although there is no amendment down today providing for the possible delay in coming into force of the Bill, there will have to be one on Report. Unless the Government are able to say here and now that they have already voted the money and the help to those voluntary organisations already working in the field in educating the women and men concerned in the effect of the Bill and the merits and demerits of the practice, it would be quite wrong for the Bill to come into effect before a great deal of education had been carried out. That can be ensured by an amendment at a later stage, though I regret to say that on Second Reading the noble Baroness, Lady Trumpington, set her face against it. I beg to move Amendment No. 1.
§ 8.45 p.m.
§ Lord Hatch of Lusby
It may be for the convenience of the Committee, and I hope it will be of some assistance to the noble Baroness who is to reply and who I know has had a long day, if I follow the example of the noble Lord, Lord Kennet, and add my remarks about the various amendments in his name, my name and our joint names. I make it plain that there is no intention in any of the amendments to allow female circumcision to continue by a side door. On Second Reading there seemed to be some impression that that was the intention of those of us who objected to Clause 2(2). That has never been the case. Those of us who have been trying to remove that subsection are just as fervent in our desire to abolish female circumcision in this country as are those who sponsored the Bill. That is surely self-evident, as it was the noble Lord. Lord Kennet, who twice took the initiative to introduce a Bill to abolish female circumcision.
Once the phrase "custom or ritual" was introduced into the Bill it brought in another dimension. As I say, the removal of that phrase was never intended, and is not intended in any way, to allow the continuation of female circumcision. But once mental health was associated with the phrase "custom or ritual" a new situation occurred, and side by side in the Bill were, on the one hand, operations of what might be called a cosmetic nature and, on the other, female circumcision for the purposes of custom or ritual. I believe that that is a fatal flaw in the Bill, particularly when it is seen by the public outside. For that reason I have tabled a number of alternative amendments which I hope will assist the Committee and the Government to find another means, if they so wish, to preserve the cosmetic form of operation, which I believe the Association of Obstetricians is anxious to preserve, without at the same time including the phrase which has been defined as racist.
Indeed, the Committee will remember that during the Second Reading debate, the noble Lady, Lady Kinloss, pointed out that the nurses were opposed to mental health being a reason for the operation. They believed that if there is mental stress, it should be dealt with by counselling and psychiatry rather than by surgery, in complete opposition to what the noble Baroness had to say on that occasion. I would stress again, both to the Government and to the noble 575 Baroness, Lady Masham, who has played such a wide and deep part in all our deliberations, the danger of destroying the salutary effects of the Bill by the introduction of unnecessary racialist overtones.
On Second Reading, the noble Baroness, Lady Trumpington, assured the House that the Government were of the opinion that there was nothing racialist in the phrase "custom and ritual". But this House has stated and has voted that this phrase is racialist and obnoxious, and has rejected it. Moreover, the Government's own statutory body, the CRE, has also stated that this phrase is racialist and that therefore the Bill is racialist. The assertion, publicly made by the CRE, was never answered by the noble Baroness in her winding up speech on Second Reading. Moreover, as the noble Lord, Lord Kennet, has pointed out, the London Black Women's Health Action Project has equally stated that if this Bill is passed in its present form it will be considered racialist. As the noble Lord, Lord Kennet, has pointed out, this is bound to consolidate opposition to the Bill among those communities in which female circumcision is a tradition, and a cultural tradition, and may very well, as we have been warned, drive the operation underground into the back streets in the same way that abortions used to be performed.
I would ask the noble Baroness, Lady Trumpington, whether she is again going to risk, or whether the Government are going to risk, a Bill from this Parliament being tested before the European Court of Human Rights. We have seen only this week a judgment against the Government's immigration policy. Will this Bill now have to be defended? Are we again, as a country, to be dragged in front of the European Court because of the inclusion of a totally unnecessary but highly discriminatory phrase?
Finally, may I say to the noble Baroness, Lady Trumpington, that when she got rather angry with me on Second Reading, all that I was pointing out to her was that when this very clause was debated and voted on in this House the votes that the Government collected were votes from people who had not taken part in the debate and who had never heard the debate. Is that the Government's conception of a free vote? When a free vote is held on capital punishment, members of the Government vote on different sides. I would ask the noble Baroness this question. Is the noble Baroness, Lady Cox, who I believe voted against this clause during the passage of the Bill introduced by the noble Lord, Lord Kennet, to be allowed to vote as her conscience dictated then? Will she be allowed to vote, if a Division is held, against what is now being put forward as a Government case? Why a Government case? Is this not a free vote which all of us should be able to cast according to our consciences and according to our assessment of the situation?
I have one last word for the noble Baroness, Lady Masham. The noble Baroness knows that I value very highly the enthusiasm with which she has sponsored this Bill and the part that she played in the two Bills introduced by the noble Lord, Lord Kennet. I was a little sad that in her winding up speech on Second Reading she seemed to indicate that it was the men, the males, in this House who were concerned about the racial discriminatory feature of the Bill. There was 576 also a suggestion during that debate that this is a new issue. No, it is not. It is now some 40 years since I argued personally with Jomo Kenyatta about this issue on the basis of his book Facing Mount Kenya; it is well over 30 years since I participated in a discussion with a team from the World Health Organisation set up to examine the very question of female circumcision; and it is over 20 years ago that I myself was deported from one African country for writing about female circumcision.
I may say that the male Members of your Lordships' House have as much fervour to outlaw this barbarous practice in this country as have the females. Indeed, I would go further. I imagine that I am the only Member of your Lordships' House who has actually seen this operation take place. It used to take place 50 yards below my garden at a university in West Africa. I saw it and heard it. I heard the screams every year. I was deported from that West African country for writing about female circumcision. Three years before that, I had been declared a prohibited immigrant of South Africa on the grounds that I was advocating abolition of racial discrimination. I consider that both those issues are equally important.
When it comes to this Bill, I am just as anxious that racial discrimination shall not have any place in it as I am that female circumcision should be outlawed from this country. I beg the noble Baroness, Lady Masham, and the noble Baroness, Lady Trumpington, not to ruin what all of us want to see done in this Bill: that is, to abolish female circumcision and to assist and support those brave men and women in this country and in other countries who, in their own communities, are leading the battle against this abhorrence. If, however, this racialist phrase is included, I am afraid that it will damage the effect that all of us want to see. You are going to shut people's minds. You are going to weaken the leadership now being given by those brave men and women because they will be told by their own people, as they are being told by the Government's statutory body, that this is a racialist Bill.
All I am saying to the Government tonight in supporting the noble Lord, Lord Kennet, on Amendment No. 1 and including with it my Amendments Nos. 3 and 4, and also in supporting the joint Amendment No. 5, is, "Please tell us that between now and Report stage you will talk with doctors, with the legal advisers to the Government and with the CRE, and find a form of words that does not in any way hint at racial discrimination."
§ 9 p.m.
§ Baroness Seear
In supporting this amendment, very briefly I want to make three points. As all the previous speakers have said, we are at one in wishing to get rid of this obnoxious operation. There is no question whatever about that. We fully recognise that the Government are as anxious that this operation should cease as we are on these Benches.
However, we take exception to the term "mental health", and this arose last time when the previous Bill was before this House. We take exception to the introduction of "mental health" as it is an exceedingly vague term. What is more, given the kind of pressures that can be put upon young women by a family who 577 wish to see operations of this sort carried out, the condition, which could be considered one of mental ill-health, could well be induced in a girl as a result of these pressures. This, combined with the vagueness of the definition of "mental health", in my view is an extremely good reason for excluding those terms.
Finally, I can well appreciate that many people in your Lordships' Committee must wonder why so much anxiety is aroused by the term "custom and ritual" practice. It may be that in rational common sense there is no need to be concerned about those words, and the Government's intention in including them is clear and is entirely respectable. However, the fact remains that the appearance of those words has aroused great anxiety and distress in responsible quarters concerned with relations between ethnic groups. When a body as responsible as the statutory body, the Commission for Racial Equality, writes to say that it very much hopes that these words will be removed, it surely is important when dealing with a matter as sensitive as this, a matter which must arouse very considerable feelings of anxiety and anger in various groups among the ethnic minorities, that we should fall over backwards to ensure that the legislation includes no phraseology to which they can take exception. If for no other reason than the representations made by the CRE, I beg the Government to find some other form of words to bring about the ends which we all wish to see achieved.
§ Lord Coleraine
I have considerable sympathy with Amendment No. 1 which is in the name of the noble Lord, Lord Kennet, and some of the arguments with which he has presented it. His amendment seeks to obviate the need to introduce the mental health aspect as a cover for the trimming operations which some women may require. On the other hand, I find it very difficult to go much further than this for three reasons. The noble Lord has already referred to the first—the fact that his amendment at present provides that operations required in connection with physical health may be carried out without the assistance of a registered medical practitioner. Secondly, it seems to me that his amendment makes no provision for the case where there may be something substantially wrong with a woman—such as a gross physical abnormality—which cannot be dealt with by a minor cosmetic operation, however widely you interpret those words, but is a matter which is causing distress and yet it is not a matter of physical health. I believe that that falls through the net provided by the noble Lord's amendment. However, the more serious reservation—
§ Lord Kennet
If the noble Lord will give way, I think that the noble Lord will agree that the Bill itself makes no mention of abnormality. If at a later stage the noble Lord himself were to seek to carry that into the Bill, I should certainly support him.
§ Lord Coleraine
I am with the noble Lord on that and I am trying to help him by drawing attention to what he and I would agree is something that ought to be included if it is possible. However, the third and substantial reason why I cannot support him is his antipathy to the use of the words "custom and ritual", and I shall return to that.
578 Amendment No. 2, standing in my name, is an alternative amendment in form to the noble Lord's amendment and it cannot be called if his amendment is accepted. Therefore, I think it will be convenient if I speak to Amendment No. 2. However, I view it as a probing amendment and I do not have any fixed intention of moving it formally if and when I have the opportunity to do so.
I propose that only operations required for physical health may be performed on persons under the age of 16. I fully accept that there will be girls of 14, 12 or 10 who will be concerned at the shape or appearance of their external genitalia and no doubt they will be teased and feel badly about it. Nevertheless, if they are to be operated upon for depression, it appears to me—and I stress that I can only speak as a layman—that in some way they ought to be encouraged to wait until they are of moderately mature age before undergoing a serious operation of this nature.
It might he that the enforced wait would see a change of mind. At the same time, it might be that if a girl thinks that in a few years she will be able to have the operation, that will make the distress which she is possibly suffering while she waits for the operation, because she is too young, more tolerable.
I was not present during the debate on the Second Reading of this Bill, but I have read the report very thoroughly and I respect the reasons why the noble Baroness, Lady Masham, now sponsors the Bill, mental health clause and all, and how she came to find that her wish to eradicate female circumcision overrode any other problems. The noble Lord, Lord Hatch, has referred to the mental health amendment tabled during the Committee stage of the previous Bill last year, and I believe that he has referred to it as an anti-racial amendment. He has also referred to the Members of your Lordships' Committee who voted one way and those who voted the other way. As one of the Conservatives who voted against the mental health amendment, may I say at once that it seemed to me last year, and it seems to me now, that the objections to the mental health clause put forward by the Commission for Racial Equality and some of your Lordships, in subsequent repetition in other places, have been so exaggerated as mischievously to endanger the principle behind the Bill.
It is of course a fair question whether we should be seen to be legislating in an apparently uncaring manner, as when we appear to be providing that a female who asked to have one of these operations and is in a severe depression which would be relieved by the operation, cannot have the operation because of what has caused her depression. But having said that, the Bill is intended to outlaw a group of practices which are endemic apparently only among a very small number of ethnic minority groups, and which the great majority of those minority groups or communities deplore.
The Bill is not branded as racialist on this account, but if you brand the use of the words "custom and ritual" as racialist then it seems to me that you are branding the Bill itself. I see this phrase now as central to what we are trying to do, and the words are words which should not be dodged or fudged. The use of 579 these words in some way in this Bill is essential to make clear the exact nature of the practice that we are condemning.
§ Lady Kinloss
May I ask the noble Lord, Lord Kennet, why in his Amendment No. 1, paragraph (a), he leaves out the words,and is performed by a registered medical practitioner"?Surely if an operation is to be performed it should be by a registered medical practictioner.
§ Lord Kennet
In drafting this amendment my wish on this point was only to please the sponsor of the Bill and the Government. If I have failed to do so they will no doubt tell me in what way, and I shall be only too happy to join with other noble Lords in putting it right.
§ Lord McNair
All the amendments, except my own No. 7, have one thing in common: that is, they all seek to exclude mental health altogether as a justification for the legitimate operations which we want to leave lawful. On the whole, two reasons have been given for this desire to exclude mental health. The first is that by including it we build a loophole into the Bill through which the wrong people may creep out. The answer to that is that if the Royal College of Obstetricians and Gynaecologists tell us clearly that for them mental health is necessary as a criterion, we have to take their opinion seriously. They are the people who are in touch with the patients, they know better than any of us, and so far as I am concerned if they feel that mental health is an essential criterion then we must provide for it. In that case we must of course block the loophole which otherwise mental health builds into the Bill.
The second reason—which I do not think we have heard tonight but which we did hear at Second Reading—for excluding mental health is that if you are mentally ill the only proper treatment for you is psychotherapy and not surgery. This is terribly out of date. I do not believe that any good doctor today draws this sharp distinction between the mental and physical health of his patient.
Surely the trend, growing with every passing year, is to recognise that nearly all conditions are psychosomatic—some more psycho; some more somatic; but nearly all a bit of both. If sometimes treatment for apparently physical ills can be psychotherapeutic, then I am prepared to believe that some apparently mental ills can sometimes be helped by surgery. Cosmetic surgery, by definition, is a recognition of this fact, is it not? I know it can become a racket, but I cannot believe that this House would dare, or even wish, to prohibit cosmetic surgery ipso facto. Therefore I feel that we have to provide for mental health in this Bill.
It is difficult to keep all these amendments separate, but I shall try to talk about Amendment No. 1. I am 580 sure that it would fairly often be impossible to claim that an operation of the type that we wish to permit was necessary for the physical health of a patient. Therefore the surgeon, if he got into trouble, would have to rely on paragraph (aa) and claim that the operation was a "minor cosmetic operation". I ask the Committee to note that it must be both minor and cosmetic; they are not alternatives.
§ Lord Kennet
Has the noble Lord noticed that the words "necessary for the physical … health" are in the Bill as drafted by the sponsor?
§ Lord McNair
Yes. As I said, the surgeon will probably be relying on claiming that it is of a minor cosmetic nature. Minor it almost certainly will be, and the practices we are seeking to render illegal are minor surgery. I do not think there is any doubt about that.
What about the word "cosmetic"? What would the courts make of that word? One can throw dictionary definitions around, but none of them is binding or authoritative. But Chambers dictionary defines "cosmetic" as an adjective as,purporting to improve beauty, especially that of the complexion. Correcting defects of the face etc. or supplying deficiencies".I wish among our small number we had a lawyer present, for I wonder what the courts would make of this word "cosmetic". It is so subjective. I would think that a cosmetic operation is one which would make a person think that he looked better and that it is in the eye of the patient rather than being capable of objective definition. Perhaps the surgeon who is in court because he thought he had performed what he thought was a perfectly legitimate operation, will get away with it on the definition of "cosmetic"; but perhaps not. This is where as a laymen, both in medical and legal matters, I hope that we shall have some guidance from Government experts.
What will be the effect if we had in court instead one of the people we are trying to stop? He has performed this female circumcision, he has been caught and has been accused of an offence under this Act (as it may be). He could not claim that it was necessary for the physical health of the patient so he, too, would have to rely on paragraph (aa). If he is not a registered medical practitioner, I take it we could get him for that any way. If he is a registered medical practitioner, he could safely claim that what he did was a minor operation. It was a minor operation. All he would have to claim to get away with it would be that it was "cosmetic". What worries me is that if this word "cosmetic" adequately protects legitimate operations which we wish to allow to continue, is there not a danger that it will also afford a loophole to the people we wish to put out of business? On balance, I feel that I cannot support this amendment; but I shall wait to hear what is said by the noble Baronesses, Lady Trumpington and Lady Masham.
§ 9.15 p.m.
We have been talking about the meaning of words. As a doctor, I wish to take up a moment of your Lordships' time in talking about the meaning of words to doctors who will have to deal with these problems. The noble Baroness, Lady Seear, said that "mental health" was a vague term. I assure her it is not a vague term to doctors. They understand it and they use it constantly, although it covers an enormous spectrum from the frankly insane to the sadly anxious. "Cosmetic" means nothing in terms of surgery except for face-lifts and putting straight noses and matters such as that. It is a very ill-defined term to the minds of doctors, and, as the noble Lord has just said, it would be a very vague term in the courts.
I am on firmer ground over "minor" and "major" operations. These terms are not to my knowledge used by surgeons, and have not been for years. What may appear to be a short or small operation can go wrong. The anaesthetic alone can go wrong; so can the surgery. Difficult, prolonged procedures may carry very little mortality and, because they are undertaken by the most highly skilled, carry little morbidity and little chance of things going wrong.
I feel extremely strongly that the words "mental health" must be included in this Bill. If one does not do that one will exclude from treatment a number of patients—I do not wish to overstress that this will be a large number, but it will be a significant number of patients—who could be relieved by surgical procedures. It is naïve and ignorant in the extreme to say that all mental disease can only be treated psychologically. It is not true. Alteration of circumstances, alteration of surgical situations, can indeed play a major part in the relief of psychological symptoms and mental disease. If this term "mental health" is excluded you are going to debar in your legislation a significant number of women of all faiths, of all beliefs and of all colours and of all ethos—nothing racial—from the operation that could help them. To try to disguise that fact by using vague terms such as "cosmetic" and "minor" to my mind is merely partially to diminish the risk of people going without procedures that should be done for their health, including physical and mental.
The argument that any procedure should be delayed until after 16 is not one that I think would find many doctors in sympathy with it. Children are intensely sensitive; they are intensely inquisitive; they love to be normal and the same as everybody else in all their appearances. When it comes to appearances of their genitals they may well discover an abnormality in a circumstance of which their parents would strongly disapprove, and you have a splendid ground in which to plant all sorts of lifelong psychological troubles that can blight a life; whereas calm understanding and, in that instance, minimal surgery could relieve them.
Therefore I feel that if we exclude "mental health" from this Bill we are bowing to a fear of words that I fully understand, at the risk of doing real harm; at the risk of creating a Bill that would obstruct and prevent the proper treatment and management of women in this country. Therefore I hope greatly that your Lordships will reject any amendment that excludes the mental side of health that is so predominant in such a 582 number of illnesses and in fact is increasingly so.
§ Lord Hatch of Lusby
May I ask the noble Lord before he finishes to give the Committee the benefit of his very wide knowledge of the central issue of mental health as it is included in this Bill? Does he recognise that girls who have been brought up in a society in which female circumcision is the practice and the ritual, and indeed in some cases the religion, may very well suffer from mental depression if they are deprived of this operation? We are all agreed that they should be deprived of this operation. Does he not see the difficulty of saying that this form of mental depression must go without an operation, whereas the forms that he has been describing shall be allowed an operation? Does he not see that to many people this appears to be racial discrimination?
I certainly see the point which the noble Lord, Lord Hatch, has raised—that women of a certain ethos and belief could become mentally ill if they are not allowed to conform with their beliefs, and that it could lead to tremendous conflict. That situation is bound to arise. I cannot do more than say it might well be that expert opinions, most carefully considered in their giving, could lead to special requests for this operation to be done. I cannot see that there could not be administrative arrangements in order to allow it. It would have to be done by ensuring that impartial opinion of the highest level is obtained so that those who are willing to do these operations for money are not enabled to do so because of the very weight of opinion it would have to support.
As the noble Lord has said, this problem is bound to arise. However, I feel very strongly indeed that if this Bill is to be so phrased as to impair the ability of doctors in their management of patients—and I am not speaking for the Royal College of Obstetricians and Gynaecologists; I am speaking from my own contacts, and I have talked to a lot of doctors in my life—it must be very much questioned. I say that because, as I tried to make clear, I am not talking solely about the white girls of this country; I am talking about all the young female citizens of this country as well as, of course, the others who have to have serious operations on that part of their body.
I accept what the noble Lord has said—that there could be great mental trauma for some women who have been brought up in certain beliefs. I think that that is undoubted; but I feel as strongly as I can that this Bill should not create a situation that impairs proper medical practice as I would see it, as my profession would see it, and as I believe the majority of people would see it, for those who are living in this country, whatever their race.
§ The Lord Bishop of Gloucester
I wonder whether the Committee will be indulgent to a bishop who finds himself a little lost in the forest of marshalled amendments at this point. I want to make two points, which I hope are not inappropriate at this moment. It goes without saying that, like all other speakers, I am totally against this practice, and hope that we shall legislate against it to assist its inevitable demise, which surely must happen in any case; but we wish to hasten 583 it. It seems to me a thousand pities that, so far at least, the wit and wisdom of both politicians and draftsmen have not been able to find a form of words around which we can gather, since we are all so united over the principle which we all seek.
If it is true that the phrase "custom or ritual" is to be seen as racialist by a significant number of people, it seems an aggravation to our dilemma that those who are going to find it perhaps almost more painful than anybody else are precisely those who will in the end be the most effective agents for achieving what we desire. Surely it is not prosecution we want; we want to prevent this practice happening at all. Those who will teach, exhort and persuade most effectively to that end will surely be those who are already members of these ethnic communities and who, having themselves been enlightened, will seek to spread this truth to others. If they are saddled with the additional task of apparently being the advocates of a racialist piece of legislation, it seems to me we are adding to their already considerable burdens. I would wish with all my heart that we could avoid that particular phrase if that is indeed the problem.
Secondly, I have a private quarrel, if I may say so, about the word "ritual" itself in that phrase. It seems to me that the word "ritual" will imply to most people who read it something religious. I have no doubt of course that it can have a secular meaning, and without the benefit of lawyers perhaps I speak out of turn. But certainly in common parlance I believe most people will think that we shall be talking about a religious practice. As I understand it, those people involved in female circumcision and these other operations may have inherited a kind of unspoken tradition that this is something to do with their religious culture. It has, and can find, no backing responsibly in the teachings of, I dare to say, any known religion: certainly not Christianity, certainly not, I understand, Islam and certainly not Judaism. That being so, is it really the right word to use in this context? I wonder whether, even at this late hour, it is possible for the noble Baroness, Lady Trumpington, to make one more effort to get together with other interested people outside this Chamber to see whether some solution cannot be found which would achieve our aim without this provocation.
§ Lord Rea
Since the Second Reading debate on this Bill, I have been in touch with a number of people and authorities who are directly concerned with this legislation. My remarks, like the remarks of most of the speakers so far, will be directed generally to all the amendments which are on the Marshalled List. I have a lot of sympathy with nearly all of them, although I was not quite able to follow the reasoning of the noble Lord, Lord Coleraine, about different treatments for girls of different ages.
Among the people I have been in touch with are members of the Commission for Racial Equality and I have also spoken with the Government's own legal adviser, who has been advising on the drafting of this Bill. I accept completely that the contentious Clause 584 2(2) has been accepted in good faith by the Government to close off a possible loophole which, it has been pointed out to me, might be used by unscrupulous operators. But as regards the use of the words we have been hearing so much about this evening, "custom" and "ritual", whether in Clause 2, as in the Bill, or in Clause 1 at the very beginning of the Bill, as part of the definition of what is prohibited—and that was suggested by the noble Lord, Lord Hunter, two years ago during the Committee stage of an earlier Bill—both ways of inserting the words would be unacceptable to the Commission for Racial Equality and I think we have heard enough about why they feel that these two words are offensive.
I asked them whether they felt the words "traditional or cultural", as in the amendment of the noble Lord, Lord McNair, would be more acceptable to them. I learned that they would not be: the principle of outlawing a tradition or custom as such, even one which is so obnoxious as this one, is one which, if at all possible, should not be embodied in a piece of legislation. This is really why so much trouble was taken by the noble Lord, Lord Kennet, to define this offensive operation when the Bill was first drafted, without using words which might cause offence.
Incidentally, as has been pointed out by other people, the words "ritual" or "custom" are in no way, to my mind, more accurate than the word "cosmetic", which is something that the noble Lord, Lord Kennet, has pointed out already. I feel very much that the Department of Health and the Commission for Racial Equality should get together on this and try to agree a formula which would satisfy both. For me, it seems to be almost impossible, or very difficult, to be a go-between. I think that direct across-the-table discussion between the two bodies most directly concerned would be most valuable and might lead to this solution which seems to elude us. There is still, after all, some time for the Government to introduce the appropriate amendment which would please us all.
§ Baroness Trumpington
I can well understand the purpose behind this amendment and admire the ingenuity of its drafting. Yet I have to say that it is not acceptable to the Government. If the amendment were carried, then the Bill would interfere with what is now quite ethical and legitimate surgery. The medical advice available to me is that there are some operations that can be judged to be clinically necessary for a patient's mental health that are neither minor nor cosmetic, even by generous interpretations of those terms. It would be quite unacceptable for this Bill to interfere with the patient's right to have that type of operation, even if it is judged to be clinically necessary for her.
In trying to avoid elsewhere in this Bill using the words "custom" or "ritual" we should not in any way interfere with the most sensitive predicament which has nothing whatsoever to do with female circumcision. We must ensure that the scope of the offence created by this Bill is limited to female circumcision and only that. If it is suggested that the Government, by their obstinacy, are preventing the passage of the Bill, it can, with equal or greater justice, be said that the resistance of the noble Lords, Lord 585 Hatch and Lord Kennet, to the Bill as currently drafted, on the best legal advice, is now preventing the Bill from proceeding to statute. Their resistance is irrational. If the use of the words "custom" or "ritual" is considered racialist, then it must follow that the intention of the Bill itself is racialist, as my noble friend Lord Coleraine has pointed out, since it is a customary or ritualistic practice that the Bill seeks to prohibit. It is absurd to describe the words as racialist, and we do not accept this.
Incidentally, in answer to the right reverend Prelate the Bishop of Gloucester, female circumcision has nothing to do with religion. The definition of "ritual" goes much wider than its religious concept, according to the Oxford English Dictionary, which states:Pertaining or relating to, connected with, rites".I shall leave the matter there for the moment.
The other drawback to this approach is that surgical procedures do not fall neatly into categories of "minor" and "not minor". There is no clear dividing line that determines what is or what is not minor.
As I have said, before I gave the quotation, there are operations which would involve surgery that is clearly not minor by any definition.
And there are also other legitimate procedures that might well be caught by this amendment. It would raise doubts for doctors and patients about whether or not a given procedure were against the law. There is a quite unnecessary and unacceptable effect. A Bill whose prime purpose is to clarify the law should not of itself raise difficult legal issues in an area in which there is no present difficulty. We should not be jeopardising patients in that way. The amendment in its whole approach, far from helping to clarify the law, would make it more obscure. The noble Lord, Lord McNair, is certainly correct in what he says in this context. The word "cosmetic" is one to which the courts would be reluctant to give effect.
It is awfully boring to repeat things, but I must repeat to the various noble Lords who have spoken the quotation from my letter to the noble Lord, Lord Kennet, which I gave at Second Reading. I said:If you introduce the concept of mental health then it is necessary to have a saving clause such as that now in Clause 2(2). Otherwise there is a loophole that would impede successful prosecution. There is no sensible definition of 'cosmetic', 'minor' or 'abnormality' that would prevent difficult questions of law. There are probably forms of quite legitimate surgery that are neither 'cosmetic' nor 'minor'. All of this serves to raise doubts and legal questions about what ought to be straightforward clarification of the law." [Official Report, 15/5/85; col. 1242.]If I may skip to the penultimate paragraph on that page, I said:the prohibition is not in any sense linked to the fact that the practice is a custom or a ritual. It is the practice itself that is being made an offence".Quite honestly, the noble Lord, Lord Richardson, has answered, with great authority and medical knowledge, the various questions that have been raised far better than I could. However, I have been directly challenged and I must reply to the various challenges. I think that I can speak on behalf of my noble friend Lady Cox when I say that she is fully behind the Bill as 586 it stands. The noble Lord, Lord Kennet, suggests that the DHSS has refused to attend meetings to discuss alternative approaches to the Bill. This ground has been well covered in many hours of previous discussion. The Bill as it stands now would work well and would meet all our criteria, and it meets those of the medical profession. Alas!, I must say to the right reverend Prelate that we need no further discussions. We need an effective Bill—this Bill.
The noble Lord, Lord Kennet, asked whether the words "health", "custom" and "ritual" are not also vague. The short answer is that they are sufficiently precise to allow for effective legislation. The terms "cosmetic" and "minor" are not. I said in answer to an earlier question of both the noble Lords, Lord Kennet and Lord Hatch, that we were looking at the applications of those organisations which had approached us for help in the field of education. The noble Lords are premature in asking whether that help will be forthcoming. It would be quite inappropriate for me to give instant decisions on questions such as this at this moment.
What would the amendment of the noble Lord, Lord Kennet, allow? What operations would the amendment ban—female circumcision by doctors, operations justified medically which are neither cosmetic nor minor? Some sex change operations would, for instance, be involved. The noble Lord, Lord Kennet, asked whether this Bill would ban something that the Royal College of Physicians wants to do. No. The word "cosmetic" is vague. Are not the words "custom", "ritual" or "required" equally vague? No. I repeat that the word "cosmetic" could not include those sex change operations.
The noble Lord, Lord Hatch, said that if the Bill passed as it is it would surely end up in the European Court of Human Rights. We would find that it went there only if it discriminated in practice against certain races. They cannot find against us because the phraseology has no practical effect. Quite simply, the Government cannot accept the first amendment.
§ Baroness Masham of Ilton
As the noble Baroness, Lady Trumpington, has said, this amendment does nothing to clarify the law. If the amendment is carried, the Bill will interfere with legitimate surgery and will leave the legal position in some doubt, as has been stated by the noble Lord, Lord Richardson.
I should like to remind the Committee that this Bill has been through all its stages in another place. It has had legal drafting. If the Bill is wrecked tonight, it will lose the Government's goodwill towards this very serious problem of female circumcision and so may be the grants which are so badly needed to help educate people will also be lost. I have been told by a campaigner who is campaigning not only in Britain but throughout many Commonwealth countries on the prohibition of female circumcision that behind every woman there is a man. Many women who allow female circumcision on their girls do it because they are fearful, they are obedient and they submit to what nearly everyone in Britain feels is the most horrific and cruel operation which has no medical benefit to the person who is operated on.
587 9.45 p.m.
Female circumcision is an assault on the person who is circumcised. People have said to me that they cannot understand why we have been so long in prohibiting this practice. We all know that it has been very difficult to come to a satisfactory position. I should like to ask the noble Lord, Lord Hatch, whether the girls whose screams he heard at the end of his garden had been asked. When we legislate for children, as the noble Baroness, Lady David, well knows, the wishes of the children are paramount. I do not think that these children are asked whether or not they want to be circumcised. If they were asked, I am certain what the answer would be.
I should like to say to the right reverend Prelate that I have sympathy when he says that he is not happy about the word "ritual". I would ask him to wait until Amendment No. 7 is moved because that is where this comes in. I would ask your Lordships not to accept this amendment because it might well wreck the whole Bill.
§ Baroness Jeger
Perhaps I may intervene briefly. I should like to begin by apologising to the Committee. On Second Reading I made a terrible mistake and I grossly misled your Lordships. At column 1244 of the Second Reading debate on 15th May the noble Baroness, Lady Masham, said:As a lay person I cannot argue with the Royal College of Obstetricians and Gynaecologists".Hansard records that I said—and therefore I must have said it—My Lords, why not? They are only men".I was very embarrassed afterwards in case I had made a mistake. That is why I want to put the record straight. I have checked on this statement and I have to inform your Lordships, asking your forgiveness, that the Council of the Royal College of Obstetricians and Gynaecologists is composed of 31 men and one woman. I shall be apologising to the lady concerned that I overlooked her presence.
We have been discussing this matter for a long time and we have to face up to the fact that this is a Bill to outlaw female circumcision on almost any grounds. I stand by that. Therefore I only wish that we could come to agreement on this without having the difficulties which have arisen, purely I feel for verbal reasons. My hesitation consists of these points. We are saying, and rightly saying, to doctors and other people—and I agree with the noble Baroness, Lady Masham—that you cannot plead in aid as a defence that you did the operation for ritual or customary reasons. My problem is that this creates a red light. No doctor will go into court and plead that defence because we have put into the Bill that such is not an acceptable defence. The doctor will read on a little further and then say, "I did it for her mental health". I am very worried that this will leave the way open for these operations to be carried out—operations which are in effect female circumcisions—and not the kind of operations of which the noble Lord, Lord Richardson, has spoken, or sex change operations which I would have thought were part of normal surgery.
588 In the same way doctors can operate on a little boy with big ears, and they do not need any legislation to say that they may do so. Operations to correct what, in a sort of shorthand, I may call abnormalities are surely acceptable at the present time. I have no knowledge of their not being possible. I therefore wish that we could achieve some meeting of minds on this point.
I was very offended, as I often am, by the Minister in another place, who stated:While I am sure that their Lordships will wish to look at the Bill, I hope that they do not embark on amateur draftsmanship of their own and get the Bill back into complications that might run the risk of frustrating its purpose".—[Official Report, Commons, 19/4/85; col. 585.]No one wants to frustrate the Bill. We are all amateur draftsmen. Members in another place, including the Minister, are amateur draftsmen. It is our duty to try to see to it that the wording of a Bill, as it passes through this revising Chamber, is made as acceptable as possible.
It is all very well for us to say that we understand what is meant and that there is no difficulty, but we cannot ignore the fact that some of the people most involved are worried about this point. Although the noble Baroness the Minister might say that there has been enough talk already and that there is nothing left to talk about, I very much support my noble friend who wishes that between now and Report stage we can find out whether it is possible to meet all our anxieties. By that I mean not so much our anxieties, but the anxieties of the women and men most concerned.
I want to ask the noble Baroness the Minister, if she can give me an answer, whether there is in the Government's mind an intention to set up any notification procedure. How will we know what the Bill is achieving and whether or not it is effective? How will we know how many circumcisions have been carried out each year under Clause 2(2) or in other ways, because it seems to me that unless there is such notification, policing and following up—
§ Baroness Jeger
I apologise. The noble Baroness has been speaking so much today that I cannot think there is any Bill before your Lordships which is not hers.
§ Baroness Jeger
We feel the same. It really is Ladies' Day at the Lords. I shall direct my question instead to the noble Baroness, Lady Masham, and ask her whether she has in mind any notification process of the kind which there has to be in the case of abortions and so on, so that we will be able to see how the Bill is working out. Meanwhile, I hope that the noble Baroness will not feel that she has to tell the Committee that between now and Report stage there is no hope of a meeting of minds over this particular difficulty.
§ Baroness Masham of Ilton
I shall try to answer the noble Baroness, Lady Jeger. I know that there are campaigners among the organisations—the Black 589 Women's Association, for one—who are trying to get a survey on how many circumcisions are carried out. This is, of course, very difficult and funds are needed to do it. They are asking the Government for those funds and Ministers in another place have made sympathetic noises. Your Lordships may remember that at Second Reading I tried to press the noble Baroness, Lady Trumpington, on that very point. Again, she made encouraging noises. Perhaps she is going to make some now.
§ Baroness Trumpington
No; I was going to say that it is very difficult for the Government when, at Second Reading, two organisations are said to be asking for help and now three organisations are asking. That is one of the reasons why it would be premature to say how help could be given, if it is given.
§ Baroness Jeger
Perhaps I did not make my question clear. I was not asking about help to these organisations, which I hope will be forthcoming, but about whether there is to be a legal obligation, as there is with the termination of pregnancy, for these operations to be registered and recorded, so that we know what is happening; that is, through the legal process and not through any voluntary organisation.
§ Baroness Masham of Ilton
That is the whole point of having this legislation. It is to clarify the position, because there are some people who now say that it is an assault and is illegal to perform a circumcision, but nobody has taken anyone to court over it. That is the difficulty. The whole point of this Bill is that when it becomes an Act it will clearly be illegal for anyone to perform a circumcision. These cases may then come to light.
The other point I wanted to make to the noble Baroness, Lady Jeger, is that I also picked up what was said by a Minister in another place about the legislation of the House of Lords. I showed that passage to the noble Lord, Lord Denham, the Chief Whip, who took the same view as we did.
§ Baroness Gardner of Parkes
I have not spoken against these amendments, though I oppose them, because I feel we have said so much at the previous stage of the Bill and on earlier occasions. It seems to me judging from the last few remarks that we are getting slightly confused. I understood that the noble Baroness, Lady Jeger, was asking whether, when circumcision is illegal, there will be any way of notifying what legal operations of a similar nature had been carried out for medical purposes. I thought that was the question the noble Baroness, Lady Jeger, was asking. Obviously, if the Bill goes through, no one will be notifying anything done illegally. That would be more than we could ever expect. It is an interesting point.
I strongly support the Bill and I am convinced that the only way in which it can be effective is to retain the 590 words "custom or ritual", and unless some other formula can be produced I would prefer to see the Bill with those words than to lose the Bill.
§ Lord Kennet
The time has come to decide about Amendment No. 1, although we have been discussing all the amendments. Perhaps I may say, first, to the noble Lord, Lord Richardson, who urged the Committee to reject any amendment that excludes mental health as a ground on which operations may be performed, that Amendment No. 1 does not exclude mental health. Some of the later amendments do.
The noble Lord, Lord Coleraine, said that if you brand the words "custom or ritual", you brand the Bill itself. No, I think not. We wish to ban the operations, not because they are someone's custom or ritual, but because they are cruel and harmful to health. It is quite possible to brand certain words in a Bill as offensive without branding the purpose of the Bill as offensive. Many noble Lords have said that they agree with the Bill and, of course, we all do.
I come to what I think we would all agree is the main point, if I could have the attention of the noble Baroness for a moment. She said, not in her opening remarks but just now, that the amendment would interfere with legitimate surgery and prevent certain operations which are neither minor nor cosmetic and which ought to be done. I was contemplating challenging her, "What operations are they?". They are operations which are not for the physical health of the patient; they are not minor and they are not cosmetic because all those are clearly permitted under the amendment. I was baffled until a moment later she let the cat out of the bag. They are of course sex change operations.
We have to remember at this point that we are talking only of female to male sex change operations, since all that the Bill bans in Clause 1 are operations to the female genitalia. This is a new one. I believe that this is the first mention that we have had in the endless discussions on the Bill of female to male sex change operations as a factor which we ought to take into account, and we have had it from the Government Front Bench.
Many noble Lords—the right reverend Prelate the Bishop of Gloucester, the noble Lord, Lord Rea, and the noble Baroness, Lady Jeger—have asked whether it might be possible for the Government to envisage having conversations in private between now and the next stage of the Bill. Many noble Lords who have spoken know that there has not been enough consultation by the Government with the communities concerned, with the Commission for Racial Equality or with the friends of the amendments in this House. Can the noble Baroness give the Committee any hope that between this stage and the next there will be discussions on the new subject that she introduced of female to male sex change operations between the Government and representatives of the ethnic communities, the Government and the Commission for Racial Equality and the Government and the friends of the amendments in this House? I hope that we shall hear that the Government are prepared to do that before the Report stage.
§ Baroness Trumpington
Once again I have been challenged. We are discussing this particular amendment. I have no intention of giving reassurances to the noble Lord.
§ Baroness Masham of Ilton
May I try to answer the noble Lord, Lord Kennet, on one issue, although it would be better answered by the noble Lord, Lord Richardson. An operation may set out to be a minor one but could turn into a major one if something went wrong. That is the difficulty.
§ Lord Kennet
Accidents can happen to anybody at any time, but the intention of the surgeon of course would be to carry out a minor operation, and I think that the courts would consider the intention.
The noble Baroness has shown complete intransigence about this, if I may say so. She has refused to have any discussions with anybody between now and the next stage of the Bill, which all noble Lords will know is a most unusual proceeding. I regret that she has placed me in a rather difficult position. I believe that Amendment No. 1 is faulty. I gave one reason for thinking that in my opening remarks and asked the noble Baroness to help me discover whether that was true. She has not done so. She did not mention it. I am ready to admit that the word "cosmetic" is a little vague, though I think that it is probably not much more vague than the others, but let that pass.
However, since there is no hope of any movement from the Government on this issue which troubles so many people, and since I believe that I am right in thinking that the amendment, if it were carried, could itself be amended at a later stage, I feel that there is no alternative but to ask the Committee to divide on the amendment.
§ 10.4 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 9; Not-Contents, 29.
|DIVISION NO. 1|
|David, B.||Kennet, L. [Teller.]|
|Gloucester, Bp.||Kilbracken, L.|
|Hatch of Lusby, L.||Rea, L.|
|Jeger, B.||Seear, B. [Teller]|
|Ampthill, L.||Lucas of Chilworth, L.|
|Brabazon of Tara, L.||McNair, L.|
|Caithness, E.||Masham of Ilton, B. [Teller.]|
|Coleraine, L.||Monson, L.|
|Cox, B.||Mottistone, L.|
|Craigavon, V.||Ponsonby of Shulbrede, L.|
|Darcy (de Knayth), B.||Renton, L.|
|Elliot of Harwood, B.||Renwick, L.|
|Elton, L.||Richardson, L. [Teller.]|
|Faithfull, B.||Skelmersdale, L.|
|Fortescue, E.||Swinton, E.|
|Gardner of Parkes, B.||Trumpington, B.|
|Hunter of Newington, L.||Vickers, B.|
|Kinloss, Ly.||Winstanley, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.592
§ 10.12 p.m.
§ [Amendments Nos. 2, 3, 4 and 5 not moved.]
§ Lord Hatch of Lusby moved Amendment No. 6:
§ [Printed 3/6/85; col. 573.]
§ The noble Lord said: I want to say just a few words about this amendment because I deliberately did not include it in the comments that I made on Amendment No. 1. May I take this opportunity, first, to answer the noble Baroness, Lady Masham, when she asked me the direct question: were the children consulted? No, of course, they were not. However, perhaps I may make a point to the Committee. This operation was performed in a women's secret society, so please do not put all the emphasis on male domination. Although there is of course a degree of male domination in the whole syndrome of female circumcision, there is also a very strong female tradition; and it is a female secret society that carries out this operation, certainly in all the communities that I know where it is performed.
§ The other point which I want to answer has been made both by the noble Baroness, Lady Masham, and by the noble Baroness, Lady Trumpington. They accused those of us who have been tabling amendments of endangering the Bill, of possibly killing the Bill. However, we could have had this Bill 12 months ago and it was the Government who killed the Bill on that occasion. This is very close to blackmail. The Government are saying that we can only have a female circumcision Bill if we have it on their terms—and I ask the Committee to note not on the terms of a free vote, but on the Government's terms.
§ I would beg the noble Baroness, Lady Masham, to note this—and between now and Report stage take it into her own hands, if the Government will not help her—and to consider what has been said in Committee and to see whether she can find some bridge to those who fear that the Bill itself may be smeared and may have its effect deteriorated because of this clause, and bring us back at Report stage to a formula which can unite the House. I am sure there are lots of us who would help if asked. I would remind those who mentioned the debate in the other place that the hope was expressed at Third Reading stage that this House might improve the Bill. Perhaps we can do that before Report stage.
§ We still have not had any answer from the Government as to the judgment of their own statutory body, the Commission for Racial Equality. Nobody from the Government side has attempted to answer the assertion which that commission made that this Bill had a racial aspect to it. This amendment is again an attempt to get away from the danger of that racial flavour.
I should like to ask the noble Lord, Lord Richardson, a question on this aspect. I shall read how Clause 2 (2) would read if the amendment were passed:
In determining for the purposes of this section whether an operation is necessary for the mental health of a person, no account shall he taken of the effect on that person of non-medical factors.
I should like to ask the noble Lord, Lord Richardson, to tell the Committee whether the operations which he described would come under the category of being
decided upon for non-medical factors, or if this amendment were passed whether it would still in his opinion inhibit the legitimate operations which he believes that doctors should still be allowed to perform.
§ While I am on this point, I would draw the attention of the Committee to an important and dangerous implication in the speech of the noble Baroness, Lady Trumpington. The noble Baroness, as I understood it, agreed with the analysis of the noble Lord, Lord Richardson. I hope that he will correct me if I am wrong, but I understood the noble Lord, Lord Richardson, to say to me, when I asked him the question, that if necessary he would be in favour of there being exemptions, exceptions, to the prohibition of female circumcision. Not of the cosmetic operations, or any other operations, but exemptions to the illegality of female circumcision if this were warranted by the mental depression of a girl, or young woman, who was deprived of that operation through this Bill. I was astonished to hear the noble Baroness, Lady Trumpington, agree with this. Are the Government therefore saying that they are prepared to see exemptions from the operation of female circumcision if the mental health of girls who are deprived of that operation is such that the doctor will ask for exemption? Is that what the Government are saying? That is what it sounded to me that the Government are saying. If that is right, this is driving a coach and horses through the Bill.
§ I come back to Amendment No. 6. All I am asking of the noble Baroness, Lady Masham, is that between now and Report stage she will consider this alternative phraseology, the use of the term "non-medical factors". I should be grateful if the noble Lord, Lord Richardson, would tell us whether that would satisfy the medical profession, but I ask the noble Baroness, Lady Masham, to discuss this between now and Report stage with the authorities concerned to see whether this, something similar or something based on this could not be brought back to us at Report stage to do away with this wasteful quarrel that we are having which may affect the influence of the Bill when it leaves Parliament. I beg to move.
I shall answer the question put to me by the noble Lord, Lord Hatch. The answer is that the words proposed would not constitute any barrier to the proper practice of medicine. Those words are such that they should be carefully considered as to whether they provide a clear enough substitute for "custom and ritual". That is what the noble Lord, Lord Hatch, is asking should be done.
§ Baroness Masham of Ilton
I asked the legal adviser from the DHSS about this amendment, as I did about all the amendments. I was told that "non-medical factors" was too vague and gave rise, or could give rise, to a loophole.
§ Lord Hatch of Lusby
Can the noble Baroness tell us what loophole? The noble Lord, Lord Richardson, has said that it is not a medical loophole. What is the loophole? Will the noble Baroness find out?
§ Baroness Masham of Ilton
Maybe the noble Baroness, Lady Trumpington, can say which loopholes; but it was loopholes.
§ Lord Kennet
While news of the nature of the loophole is being brought to the noble Baroness may I urge the Committee not automatically to continue deferring to the unjustified opinions—I use the word "unjustified" in the strict sense—which are not accompanied by detailed justification of the legal adviser to a Government department. This is the strangest basis for legislation that I have ever heard. Somebody has a bright idea—in this case my noble friend Lord Hatch—and the sponsor of the Bill goes—who does she go to?: to the legal adviser to the Government department. But has it not been clear for months that the view of the department is now set in concrete and nothing—not the Bench of Bishops, not the good-hearted ingenuity of doctors or anybody else—can shake it? Let us make up our own minds for once. I think that the "non-medical factors", in view of what the noble Lord, Lord Richardson, has said about it, is a good plan. Let us ask the Government if they will soften for a moment and consider the possibility that somebody else might have an idea.
§ Lord Coleraine
I should like to suggest that the sort of non-medical factor that the noble Lord, Lord Hatch, would exclude from the consideration of the doctors is something as simple as abnormality; because if someone is becoming depressed from mere abnormality, that is surely a non-medical factor. Is that the sort of factor that he wishes to stand in the way of the operation?
If there is an abnormality which is a significant abnormality in the assessment of a case, it should be dealt with medically.
§ Baroness Trumpington
Once again I have been challenged. The last time I spoke I said that the noble Lord, Lord Richardson, with great authority and medical knowledge, answered various questions far better than I. That is the only mention I made of the noble Lord, Lord Richardson, and I was most interested to hear his remarks.
I can well understand the purpose of this amendment, to avoid the need to use the term "custom or ritual", but I have to say that it does not work and it would be unacceptable to the Government. If this amendment were carried, we would be introducing a loophole that would allow the practice of female circumcision as such. The term "non-medical factors" is insufficiently explicit to prevent that loophole.
Certainly, female circumcision is non-medical, since it has nothing whatsoever to do with a patient's health. In the same way someone's custom or ritual is a non-medical factor; yet this amendment, by not being explicit, would still allow a doctor to make the 595 claim that he has carried out a female circumcision and that if he had not done so, there would have been psychological distress. It is doubtful whether there could ever be a successful prosecution if that defence is available.
I understand the feelings that have been expressed about the words "custom or ritual". I believe the fears about them to be misplaced. However, over the years we have examined many different formulations and it must be clear now that the Bill in its present form is the only one that has yet appeared that meets all our criteria. This amendment would allow female circumcision to be performed. That goes against all our intent. I must ask noble Lords to reject this amendment.
§ Baroness Masham of Ilton
I sent to the noble Lord, Lord Hatch, the letter which I received from the president of the Royal College of Obstetricians and Gynaecologists, and they say quite clearly that they want to have the words "custom or ritual". They say:the words 'custom or ritual' are necessary. Other forms of words may result in the banning of perfectly legitimate surgical procedures and this would not be acceptable to the College. Indeed, a former Bill appeared to ban 19 legitimate surgical procedures and my predecessor, Sir Rustam Feroze, made this point to the sponsor".That was in another place. Also the Medical Women's Federation have clearly stated that they are happy with the Bill as it now stands.
§ Lord Hatch of Lusby
Yes; but last time not just on this side but on all sides there were quoted other authorities to the opposite effect. May I ask the noble Baroness, in view of the advice that we have been given by the noble Lord, Lord Richardson, tonight, whether she will take the words "non-medical factors" back to the College of Obstetricians and Gynaecologists? Will she quote the noble Lord, Lord Richardson, and ask whether this phraseology or something similar would not be acceptable to them? I ask that because we have had it on the authority of the noble Lord, Lord Richardson, that this phrase would not prevent the legitimate operations which they and he are anxious shall be preserved.
§ Lord Kennet
We enter here the realm which is verging on inadvertent misleading of the Committee. The letter that has been quoted from Sir Rustam Feroze, the former president of the College of Obstetricians and Gynaecologists, was to the sponsor of an earlier Bill. That sponsor was me. I received the letter from Sir Rustam Feroze; I remember it quite well. The letter as quoted stated that the earlier Bill would have made impossible 19 well-known types of surgical procedure. This was a mistake by Sir Rustam Feroze. He was basing his view of the Bill not on its text but on a press report of what it might be likely to contain. I pointed out this mistake to him, and I very much regret that this should surface again this evening. The letter was wrong. Moreover, I think the letter bore no relevance whatever to the amendment before the Committee.
§ 10.30 p.m.
§ Baroness Masham of Ilton
I can certainly take it back to the Royal College of Obstetricians and 596 Gynaecologists, but I have the letter here and the noble Lord, Lord Hatch, has the letter here. I do not think they are going to change their mind. I cannot argue with the noble Lord, Lord Richardson, who is an eminent doctor.
§ Lord Hatch of Lusby
In view of the statement just made by the noble Lord, Lord Kennet, and in view of the fact that the Royal College of Obstetricians and Gynaecologists was not aware of this amendment because it had not been tabled at that time, I really find it difficult to accept that a college of that distinction would say that there are three words in the English language, "custom or ritual", which are the only words that can be used in this Bill as protection. I should like to accept the assurance of the noble Baroness that between now and Report stage she will question them, quoting the judgment of the noble Lord, Lord Richardson, on this particular amendment. As she has given me that assurance, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McNair moved Amendment No. 7:
§ [Printed 3/6/85; col. 574.]
§ The noble Lord said: I think I can be quick about this one. First, I have to plead guilty to plagiarism. The words in my amendment are not mine, as I expect all noble Lords have spotted. I lifted them direct from the letter from Mr McNaughton which was read out by the noble Baroness, Lady Masham, at Second Reading, in col. 1244.
§ I think there are two arguments in favour of this amendment. The first—and, to me, it is the less important argument—is that I hope, just as the noble Lord, Lord Hatch, hoped in the case of the last amendment, that these words may be found less offensive in those circles where they might be found offensive. I must admit I am not all that impressed by this talk of seething discontent, especially among the victims we are seeking to protect. I doubt whether they are worried about the wording of our Bill. The children aged eight are those that I am chiefly thinking about. But if there is this discontent, then I hope that these words will mitigate it and be found less offensive than the notorious words "required as a matter of custom or ritual".
§ The second and I think more important reason why I would commend this amendment to your Lordships' Committee is that these words are, in fact, more accurate. They say more nearly what I think we are trying to say, especially in that they get rid of the word "ritual". The noble Baroness, Lady Trumpington, threw the Concise Oxford Dictionary at my neighbour, the right reverend Prelate the Bishop of Gloucester. I should like to come to his aid with another authority, Roget's Thesaurus, which is sometimes helpful on these occasions when one is looking for the right word. If you look in the 1966 Penguin edition of Roget under what he calls Head No. 988, you will find that every single word associated with "ritual" has some religious or quasi-religious connotation. Female circumcision has none; so I think the word "ritual" should be avoided if possible.597
I am suggesting, or at least Mr. McNaughton has suggested, "for traditional or cultural reasons". However, I am open to suggestions. It may be that the word "cultural" is a little too vague or too wide. Possibly
for reasons of custom or tradition
would be better. I do not know, and I wait to hear what others have to say before I decide what my future course of action ought to be. I beg to move.
§ Baroness Masham of Ilion
If the right reverend Prelate is not going to speak—because I thought he wanted this opportunity but it may be that he has already said what he wanted to say about it—I should like to say that "cultural" would not be acceptable because it is too wide. I personally have sympathy for the word "traditional"; and because I know the noble Lord, Lord McNair, wants to do the very best for this Bill and in no way does he want to damage it, perhaps (although I cannot promise anything, and I believe the noble Baroness, Lady Trumpington, would say the same) this aspect could be taken back and looked at.
§ Lord McNair
In view of that, I think the simplest reply for me to give is that I shall ask leave to withdraw the Amendment and then bring it back at Report stage. I hope by that time we shall have had further conversations. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported without amendment.
§ House adjourned at twenty-two minutes before eleven o'clock.