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Lord Alton of Liverpool: My Lords, I put my name to this amendment and have spoken in favour of there being a conscience clause provision in the Bill. I argued for that at Second Reading, in Committee and on Report. I think that your Lordships would be surprised if I did not briefly intervene to say again that I think that we should make belt-and-braces provision.
At the heart of the argument is the comment made on Report by the noble Lord, Lord Lester of Herne Hill. I refer your Lordships to cols. 1301 to 1304 of the Official Report of our debates on 15 March. I had set out a number of examples of people whose conscience had not been taken into account in the workings of the present abortion law. It is worth noting that the 1967 Act contains a conscience clause. However, I was able to cite a series of cases from that of a secretary to that of a social worker who found it very difficult to work inside an abortion ward and who has now been committed for psychiatric treatment, having been suspended for a full year.
In answer to that, the noble Lord, Lord Lester said:
I was grateful to him for that comment.
I went back to look at the Social Services Select Committee's Tenth Report, published in 1990 in another place, which dealt with the "conscience clause" in the Abortion Act 1967. In its recommendations, it clearly stated:
"The first point that needs to be made arising from our inquiry is that in evidence to the Committee everyone was agreed that some form of conscience clause is necessary".
That was the view of a Select Committee that looked at the issue. It is not good enough, therefore, to rely merely on Article 9 of the ECHR, as the noble Baroness, Lady Knight, has rightly told us today.
The Select Committee also said:
I know that we will be told today that doctors have this or that amount of protection. However, the Select Committee said:
"difficulties do arise for other medical and non-medical staff. Indeed, it may be more difficult for non-doctors to claim a conscientious objection as they are able to exercise less control over the work that they do".
Indeed, the examples that I gave to your Lordships last week bear that out.
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The Select Committee also said:
"We recommended that the Department of Health considers extending the provision of section 4 of the 1967 Act to cover some ancillary staff".
"the Department of Health should bring forward proposals to delete the provision that the burden of proof of conscientious objection"—
which is exactly the point that the noble Baroness has just made—
In other words, it should not be a matter of the person affected having to find someone else to do something that they find unpalatable, whatever that may be.
The Select Committee also said:
"Candidates should not be asked such questions and we recommend that guidance to this effect is issued to medical schools".
It said that because it saw that gynaecology and obstetrics had been so deeply affected that many orthodox Jews, Muslims and Christians were no longer able to go into those professions because of the way that the 1967 Act operates. The same will happen with geriatric care and palliative medicine unless we make such provision.
Finally, the Select Committee said:
"We therefore recommend that the Department of Health should continue to monitor the working of the abortion service from region to region".
When the Minister replies, I should be interested to know whether that particular recommendation—made 15 years ago—has been acted on, whether we are monitoring how the conscience clause in the 1967 Act works and what lessons we are drawing from it in terms of what we do in this legislation.
The noble Baroness rightly cited the case which I drew to the attention of a Minister yesterday of a consultant who says that he will leave the service if the legislation goes through and does not provide a conscience clause. I also sent her a copy of the legal advice that the noble Baroness relied on in moving her amendment today. This is a compelling case and I am surprised that we still have to argue it.
Lord Patten: My Lords, I have four points to make. First, I cannot predict how many, if any, amendments will be accepted during the course of your Lordships' considerations this afternoon. However, someone more statistically adept than me has calculated that 94 amendments will make their way down the Corridor to another place. An informal message has come from another place that they will devote precisely one hour to the consideration of these amendments.
I cannot under any circumstances advise another place how to proceed, but I know that there are those listening on the Government Front Bench who are members of the Whips' Office and the usual channels. I was never considered brutal enough to be employed in the Whips' Office in another place, not having that underlying streak of toughness which I am sure is inherent and present in many of those who serve your Lordships on both sides of the Chamber, but I think
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that an informal message might go through the usual channels to another place that an hour simply is not good enough.
Baroness Knight of Collingtree: My Lords, I am most grateful to the noble Lord for giving way. I wonder whether he can tell us how many of those 94 amendments were government amendments and how many were moved by those of us with concerns about the Bill?
Lord Patten: My Lords, I cannot give an exact figure, but I shall give way to a statistically adept noble Lord.
Lord Alton of Liverpool: My Lords, I am happy to help the noble Lord on that point. I, too, was looking at these amendments. Every one of the 94 amendments to which the noble Baroness referred is a government amendment. Of course, some of them reverse amendments that were passed in another place. The Member of Parliament for Knowsley North, for example, has moved amendments which have been replaced by Lords amendments. I am sure that those in another place will have a view on these matters.
3 p.m.
Lord Pearson of Rannoch: My Lords, surely many of the government amendments were tabled in agreement with what had been said in your Lordships' House.
Lord Patten: My Lords, I wish only that the amendments, whoever has tabled and considered them, should be properly considered in another place and in this House when they come back.
My second point is that the conscience issue, like the pro-life, euthanasia and Eugenics Society issues will be highlighted increasingly in future years. Whoever forms the government after the next general election will find conscience issues coming increasingly to the fore. Only this morning, the Select Committee on Science and Technology in the other place made an announcement on what the media would call "designer babies". I can see those issues roaring up the political agenda. The Front Benches on both sides of the House will need to be prepared for that issue, which, I know, everyone in this House agrees is not party-political.
Thirdly, there are other issues that bite on conscience matters. Doctors must consider conscience issues all the time and sometimes they have to weigh them up against cost. I wish to return to the Burke judgment, currently before the courts, as it bites wholly on the conscience issue, and the remarks of the noble Baroness, Lady Ashton of Upholland, in Committee about the reasons why the Government wish to appeal that judgment. I quote exactly, not out of context:
"However, the judgment could be read as allowing patients to request any life-sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive, experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interests".—[Official Report, 8/2/05; col. 739.]
Those are the only grounds on which the Department of Health has joined appeal; that is what the noble Baroness said.
However, there is now in circulation a letter from the Department of Health's office of the solicitor to the registrar of the Civil Appeals Office, dated 7 December 2004, seeking access by the Secretary of State for Health to request the court's permission to intervene in the appeal. In paragraph 16 the solicitor writes in this context,
"the Secretary of State would wish to put before the Court evidence of the actual cost of ANH in individual cases and the incidence of the provision of ANH (or artificial nutrition or artificial hydration on their own) in NHS hospitals. Again, it is the Secretary of State who is best placed to make these points, as they affect the NHS as a whole; and the Secretary of State who has perhaps the most direct interest (as, ultimately, the providing and paying party) in being able to address the Court on these matters".
It is very important that the Minister clarifies whether the simple cost of the provision of ANH is a material matter to the Government. I could well imagine that if the noble Baroness says "Yes" and that she agrees with the grounds for entering the appeal put forward by her right honourable friend the Secretary of State for Health, many people would find their conscientious objections strengthened not weakened.
Fourthly, and lastly, some feel that the statute book should not be cluttered up with declaratory statements—otiose verbiage on the face of statutes. I say a brisk "Hear, hear!" to that. However, where there are important issues of conscience and where there is disturbance in those whom we seek to serve in the wider world, as democrats in this place as in another place, it is of enormous value to have a declaratory provision in the Bill in a case such as this. After all, the Government have included a declaratory provision at the beginning of Part 3:
"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (C.60)(assisting suicide)".
Given that precedent, and the fact that the statute book is full of such declaratory statements, I do not see, in the face of the powerful arguments put forward by my noble friend Lady Knight of Collingtree, that there could be any objection to assuaging the fears of those who do not think that they will be protected by the European Convention on Human Rights if this declaratory provision is not included. There is no reason why the provision should not be included.
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