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Sedgemore, Brian

Sheldon, Rt Hon Robert

Short, Clare

Skinner, Dennis

Smith, Andrew (Oxford E)

Smith, C. (Isl'ton & F'bury)

Smith, J. P. (Vale of Glam)

Soley, Clive

Squire, Robin

Steel, Rt Hon Sir David

Steinberg, Gerry

Strang, Gavin

Taylor, Mrs Ann (Dewsbury)

Taylor, Matthew (Truro)

Thomas, Dr Dafydd Elis

Thompson, Jack (Wansbeck)

Tredinnick, David

Turner, Dennis

Walley, Joan

Wardell, Gareth (Gower)

Wareing, Robert N.

Watson, Mike (Glasgow, C)

Welsh, Michael (Doncaster N)

Wigley, Dafydd

Williams, Rt Hon Alan

Williams, Alan W. (Carm'then)

Winnick, David

Tellers for the Noes :

Miss Kate Hoey and

Mrs. Teresa Gorman.

Question accordingly agreed to.

Clause 34

Amendment of law relating to termination of pregnancy

Mr. Michael Alison (Selby) : I beg to move amendment No. 4, in page 20, line 4, at end insert

provided that the pregnancy has not exceeded its twenty-fourth week or, if the pregnancy is being terminated in accordance with section 1(1)(d) of this Act (termination because of the risk that the child will be handicapped), its twenty-eighth week'.

Mr. Deputy Speaker (Mr. Harold Walker) : It will be convenient to take at the same time the following amendments : No. 30, in page 20, line 4, at end insert--

(4) In section 5(2) of that Act, for the words from "the miscarriage" to the end there is substituted "a woman's miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by that section if--

(a) the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or

(b) any of the other grounds for termination of the pregnancy specified in that section applies".'.

No. 29, in page 19, line 42, at end insert--

(2A) After section 1(3) of that Act there is inserted-- "(3A) The power under subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places".'.

No. 28, in page 19, line 42, at end insert--

(2A) After section 2(1) of that Act (notification), there is inserted--

"(1A) Regulations made by virtue of paragraph (a) of subsection (1) of this section--

(a) may require a certificate to include such further particulars relating to any opinion certified as the regulations may prescribe, (b) shall require any certified opinion falling within section 1(1)(d) of this Act to include an opinion as to the nature of the physical or mental abnormalities from which there is a substantial risk that the child would suffer if it were born, and

(c) shall require the practitioners or practitioner concerned to send a copy of any such certified opinion as is referred to in paragraph (b), and of any such further particulars relating to that opinion, solely to the person to whom they are required by regulations to give notice of the termination,

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and for the purposes of paragraph (c) of subsection (1) of this section such a copy is information furnished pursuant to the regulations.".'.

Mr. Alison : It will probably assist the House most if I begin with a factual background explanation of what the amendment would secure, and then argue its merits. In an important vote on 24 April of this year, when we last debated these matters on the Floor of the House, we determined by a substantial majority that the Infant Life (Preservation) Act 1929, with its well known 28-week benchmark for foetal viability, should no longer be the overall ringmaster, so to speak, in the arena of abortion. It was the crack of that ringmaster's whip, to continue the analogy, which in practice determined the operational impact of the Abortion Act 1967, because the 1967 Act incorporated no specific time limits of its own. But in disapplying the 1929 Act in its bearing on the 1967 Act, as we did in April, and in shaking off that yoke, the instinct and purpose of hon. Members and, I argue, of the Government was not to declare a time vacuum between a human conception and a human birth nine months later. It was rather to declare that the 1967 Act had come of age and could feature specific time limits in its own right and in accordance with more modern conditions.

Our purpose was manifestly not to sweep away all benchmarks but to choose between alternative benchmarks. If our original intent had been to sweep away all benchmarks, we need not have troubled ourselves with long lists of optional alternative time periods for foetal viability, ranging from 18 to 28 weeks. We could simply have had an amendment to repeal the 1929 Act.

There was no such catch-all amendment before hon. Members on 24 April last. But there was before us--properly, logically and responsibly--a proposed Government new clause in which every relevant major category of abortion had an up-to-date and specific time limit attached to it--24 weeks for the general risk of injury category, 24 weeks for the new grave permanent injury category and 28 weeks for the risk of foetal handicap category. Only the category of pregnancy where the continuance would involve risk to the life of the woman did the Government leave fully open-ended in their original new clause on 24 April.

I will not weary the House with a rehearsal of how, probably partly unintentionally, we ended up by declaring a time vacuum for important categories of abortion, enfranchising them, so to speak, across the whole nine-month gestation period up to birth.

Mr. Peter Thurnham (Bolton, North-West) : My right hon. Friend suggests that hon. Members voted unitentionally in that way. Surely we were just following the recommendations of the Brightman committee. Has my right hon. Friend read the conclusions of the House of Lords Select Committee, which recommended not only that the Infant Life (Preservation) Bill [Lords] should not proceed, but that there should be no upper limit in cases of foetal abnormality? The Bishop of Gloucester, a member of that Select Committee, voted for that recommendation.

Mr. Alison : I chose the word "unintentionally" deliberately, because a number of hon. Members who voted to eliminate the 28-week limit as applied to foetal abnormality were under the impression, falsely, that its elimination would not produce an open-ended and undated situation but would result in a fall-back fail-safe

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application of the 24-week limit, which the Government had written into other categories of abortion. I repeat, from the point of view of the Infant Life (Preservation) Act, that whatever others may be arguing or advocating, there was no substantive amendment before hon. Members on 24 April to repeal that Act.

Miss Widdecombe : Will my right hon. Friend confirm that the representations that we have received from hon. Members who were confused on that occasion do not come exclusively from what might be termed the pro- life side but come from all sides of the argument, including hon. Members such as my hon. Friend the Member for Bolton, North-East (Mr. Thurnham), and that the confusion that reigned that night must be put right if we are to know the will of the House?

Mr. Alison : I agree with my hon. Friend. The fact remains that that open-ended enfranchisement of a whole range of categories of abortion for the total nine-month gestation period appears now on the face of the Bill.

As at present amended, the four grounds for abortion spelt out by the Government in the original version of clause 34, with time limits specified, now feature no fewer than three which discard all time limits and allow abortion up to birth. That is about as sweeping and fundamental a reversal of the existing law as one could imagine, for the existing law allows for the destruction of a viable foetus up to birth in only one case, and that is the single dreadful contingency that one life, either that of the mother or the infant, must be forfeit. That open-ended commitment in that unique case we have extended in the way I have described.

It is because I believe that the majority of hon. Members are not content with that sweeping liberalisation--with the new

open-endedness--that my amendment has been tabled, precisely to re- establish some final points.

Mr. Kenneth Clarke : I have before me the diagram which was produced by the Leader of the House on the last occasion we discussed the issue and which, in my recollection, was used by the vast majority of hon. Members as a guide to their voting intention. It clearly sets out--in the case of the two categories where my hon. Friend's amendment challenges the no limit-- that in respect of grave permanent injury to the health of the woman, two amendments were tabled, one of which would have brought in no limit and one of which would have brought in 28 weeks. Hon. Members cast a vote in favour of no limit, and I was on the losing side. It also makes clear, in the case of substantial risk of serious handicap, the choice between no limit, 28 weeks and 24 weeks. Again, hon. Members voted for no limit.

I understand my right hon. Friend's views and, as his amendment has been selected, he is reopening the question. But is he sure that he is doing the House a service by suggesting that, in the middle of the night on the last occasion, when hon. Members were armed with three documents--there were unofficial ones also--which were guides to what they were voting on, they did not actually know the way in which they were voting? That is not my recollection of the evening.

Mr. Alison : My right hon. and learned Friend must bear two points in mind, and I am grateful to him for throwing further light on this complex area. The first is

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that the Leader of the House's famous diagram darkened counsel for a large number of hon. Members. It was erroneous in substantial and important respects.

For example, paragraph 7 of the document said :

"The effect of the ILPA is to produce a 28-week limit where the abortion is to prevent grave permanent injury to the pregnant woman's health. The new clause replicates this, providing 28 weeks instead of 24 weeks."

Where did the new clause replicate that? It did not do so on the face of the amendment as tabled by the Government. That statement was misleading and erroneous. There were others, in the junior Minister's speech, in which she misquoted letters applicable to amendments that appeared on the Order Paper, and in the guidance offered by the Leader of the House.

I must tell my right hon. and learned Friend that not only was counsel darkened by some of the advice received from the most responsible sources but when, against the wish and advice of the Secretary of State--in the case of the 28-week change--the House took a particular decision, it is not unlikely that the resulting liberalisation might have induced hon. Members to think that they should reconsider the whole gamut of amendments that ultimately resulted from the decisions that we took that night.

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Mr. Patrick Cormack (Staffordshire, South) : I entirely agree with my right hon. Friend. Does he agree that that evening of voting was the most confusing that most of us have experienced in our parliamentary careers ; and will he further agree that it tended to bring Parliament into disrepute because hon. Members were going around with three sets of papers and were totally confused? My right hon. Friend is doing the House a great service by bringing the issue back this evening.

Mr. Alison : I am grateful to my hon. Friend. I do not want to lose the sympathy and support--I am bound to desire and require it--of my right hon. and learned Friend the Secretary of State, but I trust that he will allow me my attempted defence of the inescapable human fallibilities of the highest civil service sections and sources in these difficult matters.

The effect of the amendment will be that the 24-week limit already provided for by my right hon. and learned Friend in clause 34(1)(a), in the single case of the general risk of injury category, will be extended to the grave permanent injury category of subsection (1)(b) and to the risk to life category of subsection (1)(c). Uniquely, the general 24-week limit will be raised to 28 weeks by our amendment in the case of the fourth and last category in the clause--that of possible foetal handicap.

The House will note that there is nothing innovative or radical about these new time limits. They do not tighten up on what the Government first brought forward ; rather, they echo the original 24 April draft of the Government new clause, in which, as the House will recall, 24 weeks was proposed for the new grave permanent injury category and 28 weeks for potential foetal handicap.

Mr. Terence L. Higgins (Worthing) : Will my right hon. Friend confirm that his amendment will still leave open-ended an abortion in the case of risk to the mother's life?

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Mr. Alison : I come immediately to that point. The only category that was originally open-ended in the Government's 24 April draft but to which we have attached, as to the others, the 24-week limit is that of balance of risk to the woman's life--subsection (1)(c). In the amendment, that is merely a precautionary, not an absolute, provision, because, as we know, any abortion performed in good faith for the sole purpose of saving the pregnant woman's life is not subject to any time limit under section 1(1) of the Infant Life (Preservation) Act 1929. That Act will thus continue to operate as a fail-safe mechanism in any abortion over 24 weeks.

My right hon. Friend the Member for Worthing (Mr. Higgins) may wonder why we bothered to include that limit, given that the Infant Life (Preservation) Act can override it. The reason is that there are doctors today who argue that an abortion at 12 weeks is so safe that it is actually a good deal safer than any pregnancy brought to term, so it could be argued that one was more likely to save the life of a woman if her pregnancy were never allowed to come to term and were always aborted as early as possible- -that is the logical consequence of the argument : to end all human births. So we have introduced this precautionary, 24-week limit, safeguarded by the Infant Life (Preservation) Act.

We should not deceive ourselves or mince words. To abort means to do away with, deliberately, finally and irrevocably--the word can mean nothing else. That is different from a miscarriage of a very early foetus. In that case, what nature has given, nature has taken away. It is also different from an induced or premature termination or evacuation of a more developed or viable foetus. In that case, when nature has apparently fumbled, human hands can seek to rescue. Incidentally, a termination or evacuation after viability is an induced birth. It is only an abortion if the child is deliberately killed.

My amendment, reintroducing the 24 and 28-week limits, would not affect terminations on medical grounds--for example, under clause 34(1)(b) or (c)- -provided that there was an intention to save the child if possible and not to destroy it.

The stark and dreadful import of abortion is that what nature has successfully--in spite of all hazards--launched into the orbit of life, human hands seek deliberately to arrest and destroy in

mid-trajectory. To make such a terrible intervention in the course of nature demands compellingly good reasons. The further the foetus has got off the ground, so to speak, the more vital it is that human intervention should be geared to assisting and upholding, not to arresting and destroying.

This is why Parliament is surely right to seek, across every shade of opinion, to circumscribe abortion, carefully and agonisingly, and why it is right to insist on some time limit, as the new clause, if amended, would still do, if a growing foetus had to be interrupted and destroyed. Parliament would be wise to adopt this amendment, with its reintroduction of these vital limits. The amendment is designed to circumscribe the greatest of all risks in this area : human fallibility.

Sir David Steel : We are considering four amendments, and before I deal with the main one, I want to mention the other three in passing. I have no doubt that the hon. Member for Salisbury (Mr. Key) will seek to speak to amendment No. 29, about which he has written to me, so

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I will say only that I support it and I look forward to hearing what he has to say about it and amendment No. 30.

Amendment No. 28 attempts to write into the main statute the conditions of certification that doctors may make when carrying out certain abortions. My view is that that is best left to the regulations, but perhaps the Minister will say something in answer to the anxieties of those who have tabled the amendment. I shall certainly not support it in the Lobby.

As for amendment No. 4, I was one of those who voted unsuccessfully and on the losing side in Committee on removing the 28-week upper limit and, in certain categories, allowing abortion up to birth. Were a similar amendment to be put before us again I would vote the same way, but the right hon. Member for Selby (Mr. Alison) should be aware that he is not only reintroducing the 28-week upper limit in this category ; far more seriously, he is reintroducing to abortion law the concept of the use of the Infant Life (Preservation) Act 1929. The 1967 Act contained no time limit. Instead we decided to incorporate a reference to the Infant Life (Preservation) Act 1929. I remind the House that that Act created a presumption of viability at 28 weeks but no reverse presumption of non- viability below 28 weeks. We incorporated that reference precisely because of the uncertainty at that time about precise viability.

We have seen the law in operation for 23 years, and, as everyone knows, private Members' Bills have attempted to bring in a more precise upper time limit for the carrying out of abortions. The Department of Health under successive Governments has by regulation and instruction introduced lower time limits. In Committee, we introduced a general limit on most abortions of specifically 24 weeks. That was a fundamental change to the 1967 Act and to the exceptional upper limit of 28 weeks. The House decided on a free vote that there would be no limit at all in certain categories. I know that the hon. Member for Newbury (Sir M. McNair-Wilson) attempted to suggest that there might have been some confusion. That suggestion received some support, but I have yet to meet a single Member who has said that he voted the wrong way and was confused.

Sir Michael McNair-Wilson (Newbury) rose--

Sir David Steel : If the hon. Gentleman wishes to admit to confusion, may I take that as read and pass on?

Sir Michael McNair-Wilson : Yes.

Sir David Steel : Even my hon. Friend the Member for Liverpool, Mossley Hill (Mr. Alton) writing in The Tablet of 15 May--this shows how carefully I pay attention to his words--said :

"It was suggested that at the end of the two-day marathon debate some MPs had become confused about precisely what they were voting for. Looking through the division lists I do not believe that by and large this is the case."

There is a little twist in the tail, because my hon. Friend then says :

"Some may be confused in their beliefs, but there is a fairly consistent pattern in what MPs actually did".

That is true. There may have been an odd case of confusion, but I think that the House was fairly clear, given all the guidance that was around. I wrote to everyone in my party regardless of how he voted, and not one of them voted in a way that he did not mean to.

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Mr. Alton : I am grateful to my right hon. Friend for giving publicity to The Tablet. I said that, by and large, there was no great confusion about the way that hon. Members voted. I am glad that the House has an opportunity to consider the matter again, because it raises substantive issues, not just on the matter of handicap but on the uncoupling of the Infant Life (Preservation) Act 1929 which my right hon. Friend linked to the Abortion Act 1967. He should now explain to the House why he thinks that it should not be linked.

Sir David Steel : I was in the middle of doing that, and I am sorry that I was deflected by the discussion on confusion. Even if there was minor confusion, it would not have affected the fact that the House, wrongly in my view, voted the way it did.

The amendment is an alteration to the clause which seeks to remove the Infant Life (Preservation) Act 1929 from abortion law. The reason for that is that, if we state specific statutory time limits, as we have done in this legislation, it does not make sense to recreate uncertainty by applying a totally different law on infant life preservation and incorporating it in the Bill. We would be reintroducing the element of doubt which always lay in the Infant Life (Preservation) Act. Because the 1967 Act had no statutory limits, we rested our case on the 1929 Act. Experience since then suggested that it is better, and the House has expressed the wish to put specific time limits in abortion legislation.

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This matter was carefully trawled by the Select Committee in the other place. Reference has been made to that. The condition "capable of being born alive", which is in the Infant Life (Preservation) Act, is the very phrase which has given rise to so much uncertainty in the minds of the medical profession. The Select Committee in the other place unanimously recommended that there should be a decoupling and that we should state clear statutory limits.

There has been only one consistent effort to secure prosecutions under the Infant Life (Preservation) Act. There were four attempts, and they were all made by Professor Scarisbrick who is the chairman of the Life organisation. Hon. Members are used to being badgered by the so-called pro-life organisations. I am pro-life and I object to being characterised as not pro -life. Perhaps it is fair enough for hon. Members to be badgered, but I object to members of the medical profession being badgered and bullied in this way. I am glad to say that all four cases were rejected by the Director of Public Prosecutions.

The amendment proposes to reinvite vexatious prosecutions in this area, and we would be wise to avoid it. In the context of the provision that applies to the handicapped, the House of Lords report says on page 18 :

"If, for example, an unborn child were diagnosed as grossly abnormal and unable to lead any meaningful life, there is in the opinion of the Committee no logic in requiring the mother to carry her unborn child to full term merely because the diagnosis was too late to enable an operation for abortion to be carried out before the 28th completed week."

That is a telling argument in favour of the decision made by the House.

While I did not support the decision to place no upper time limit on these categories, it is perfectly reasonable to support it as long as they are in extremis cases only. Earlier, we heard about a cut-off time limit in the abortion law of other countries. According to the Gunning study,

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