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Offences against the Person Act 1861 (Sentencing Guidelines)

Volume 736: debated on Wednesday 19 July 2023

Motion for leave to bring in a Bill (Standing Order No. 23)

I beg to move,

That leave be given to bring in a Bill to require the Sentencing Council to issue sentencing guidelines in respect of sections 58 and 59 of the Offences against the Person Act 1861; and for connected purposes.

I will start by saying what the Bill is not doing, to avoid any misunderstandings. It is not removing sections 58 and 59 of the Offences Against the Person Act 1861; it is not changing any of the regulations on abortion set out in the Abortion Act 1967 that allows, in strict and limited circumstances, abortions to take place, including time limits for those procedures.

I make absolutely no secret of wanting to see far more wide-reaching reform than the Bill delivers, taking women seeking abortion away from the sanctions of criminal law, and I believe a great many Members of Parliament agree with me on that too. I had drawn up that Bill and planned to bring it forward today, but that was not possible, despite widespread cross-party support, so that has to wait, yet again.

So what would this Bill do? This Bill relates solely to sentencing under the Offences against the Persons Act 1861, the criminal law underpinning abortion in the UK. The effect of the Bill would be to ensure that there is sentencing guidance in place for judges to use in court. Sentencing guidance from the Sentencing Council is entirely proper for Parliament to legislate on. While I would prefer complete reform, I also believe that, as parliamentarians, we have a duty to scrutinise how the current law is working and to make the changes that are possible when problems emerge. When it comes to abortion, we should not be surprised that having a 160-year-old law underpinning a medical procedure causes problems for the courts. The law has to evolve to better reflect modern-day Britain. It should be compassionate and applied with an understanding of the medical context of today.

At the moment, there is no such sentencing guidance in place, and, with little case law to draw on, we leave judges bearing the brunt of trying to interpret legislation agreed in this place more than 150 years ago, when the world of women’s health was a very different place. Sentencing guidance helps to ensure consistency in how the law is applied today. The council’s founding legislation, the Coroners and Justice Act 2009, is clear that the Sentencing Council must publicly consult on new guidance to ensure that professional and public views are properly taken into account and, where necessary, then adjusted.

We saw in the recent case of Carla Foster that the judge specifically cited the lack of guidance in his sentencing remarks. If sentencing guidance had been in place, perhaps Ms Foster would not have had to endure weeks of prison, away from her children, waiting for the Court of Appeal to decide yesterday that her initial sentence should be halved and that it should be a suspended sentence, meaning that she should not be in prison at all. Dame Victoria Sharp, one of the Appeal Court judges, called in her own words for “compassion not punishment”. If sentencing guidance had been in place for the judge at the initial sentencing, it is possible that this heartbreaking situation could have been avoided altogether.

The measures in the Bill already enjoy widespread support. The shadow Leader of the House, whom I can see in her place and whom I informed that I would be referring to her, called for exactly this change just a few weeks ago and has been clear about the official Opposition’s support for sentencing guidelines. Following the sentencing of Carla Foster, she said:

“In the wake of this awful case, I hope that the Government will be in a position to take action, at least on sentencing guidelines. This is too important an issue to play politics on. Labour is willing to work with the Government.”—[Official Report, 15 June 2023; Vol. 734, c. 438.]

The Government have not brought forward such measures, because—they are absolutely clear on this—any changes on the law relating to abortion must be above party politics and come from the Back Benches. That is why I am standing here today, to get action—such as the action that the hon. Member for Bristol West (Thangam Debbonaire) talked about in her remarks—for women up and down the country who are fearful when they read of the plight of Carla Foster; or who need to consult a doctor about abortion and may have been absolutely unaware of the sentencing guidance gap, or, indeed, of the criminal law that is in place. I hope that the hon. Lady’s support for sentencing guidance extends to my Bill, though of course I understand that it is an issue of conscience.

I am extremely grateful to those right hon. and hon. Members, from across the House, who have indicated their support for the Bill, including the Father of the House. Some have their own experience to draw on, while others have seen at first hand, through their constituents, how the current situation does not work. The hon. Member for Walthamstow (Stella Creasy), who is in her place, and others have shown how distinct and deliberate steps are important in changing attitudes on abortion, and I applaud the work that she does. I believe that this Bill is another distinct step forward from where we are today and would see women given better certainty, while we wait for fuller reform to achieve agreement in the House.

I am also immensely grateful to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Mother of the House, for her full support and expert guidance in how to take forward this Bill with the Sentencing Council. I hope that the Sentencing Council agrees to meet us to consider a way forward with the responsible Minister, who I think may be the Minister sitting on the Front Bench.

It is worth dwelling on the context of the 1861 Act for a moment. The reason that law was passed in the first place was to protect women—women who were far more likely to die as a result of a barbaric abortion than during childbirth—at a time when women were forbidden by law from even taking part in that debate in Parliament. Today, things could not be more different: women can debate, and regularly do debate, women’s health issues. What is even more important is that we now live in a time when abortion is far less dangerous for women than giving birth, so there has been a complete change.

The Bill matters because the fair and equal treatment of women matters. Abortion is the only medical procedure in the UK subject to the criminal law. Women who find themselves having an abortion outside the law, for whatever reason, deserve our “compassion not punishment”—to quote the words of that Appeal Court judge—and it is difficult to understand how society would ever be best served by placing a woman in prison after she had experienced a pregnancy loss for whatever reason. She deserves our support and compassion, not imprisonment. But these are matters for the Sentencing Council to consult and decide on based on expert knowledge.

The Bill I present to Parliament today is not a panacea for the significant differences between the law and medical opinion on abortion, and it does not pretend to be. But the Bill does demonstrate to those whom we expect to interpret the law that we understand that we make it very difficult for them. The Bill is a small step in the right direction to get a better balance between public opinion, medical opinion and the law. I hope that the House will unite to agree that it should proceed.

Our job as parliamentarians is to find solutions, not to define problems. It is to find common ground and to work together to establish consensus where it may not be obvious and easy to find. In the words of the prayers with which we start every session:

“laying aside all private interests and prejudices keep in mind”

our responsibility to

“seek to improve the condition of all mankind”—

and indeed of all womankind, too. Thank you.

I rise with great sadness to oppose this Bill for four very specific reasons, on behalf of many Members of this House who believe, like the right hon. Member for Basingstoke (Dame Maria Miller), that there is much agreement on the fact that there is a problem that needs to be resolved, but fear that this approach may end up making things worse.

I start by recognising and respecting the work of the right hon. Lady. I have been proud to stand with her on this issue on many different occasions over the years. None the less, our fear is that the Bill fails to solve the issue, and possibly makes it worse, by normalising the biggest problem of all. That is why we have not received any representations in support of this approach from those working on these issues. The central problem that we face is not that there are no sentencing guidelines, but that there is sentencing at all. The Offences against the Person Act 1861 is not a foundation on which any sensible modern law on abortion can be made, because it is not about healthcare. It is legislation that also criminalises placing wood on a railway with intent to cause danger, casting stones on a railway carriage, obstructing a clergyman, and assaulting a seaman. Alongside that, it criminalises a healthcare decision.

We can be deeply opposed to abortion and still recognise that no other healthcare begins with an offence and then goes on to medical regulation. We can also be concerned about the conduct of a defendant, as in the recent case that sparked all of this. Resolute, as we all are, that there should be time limits on abortion, we can still think that the Offences against the Person Act should be repealed. We have other offences for those who seek to force women to have abortions, and for those who have abortions beyond the term limit.

My first reason to oppose this Bill is that sentencing normalises the fact that women continue to be prosecuted under this legislation and so investigated for a crime even if they do not end up in court. Sentencing guidelines would affect only those women convicted. Guidelines would do nothing to halt the growing number of women investigated for having an abortion, stillbirth or miscarriage under this law.

Freedom of information data shows us that there have been 67 prosecutions in the UK in the last 10 years, but many more women have been investigated. The Home Office tells us that, in 2021 alone, 40 women were investigated. We currently know of two live prosecutions—that is where there has been no decision on whether to charge the women under this legislation—but sentencing guidelines would not deal with the hostile atmosphere that women are facing. We can see that in the recent guidelines issued by the Chief Coroner on the need to report live births following determinations, which state:

“A lawful termination of pregnancy under the Abortion Act 1967 can trigger the coroner’s duty to investigate.”

That guidance means that bereaved parents could end up facing a coroner’s inquest, and entangled in the lengthy criminal justice system, because of the connection between reproductive loss and prosecution. That is why a 15-year-old girl who suffered a stillbirth at 28 weeks suffered a year-long investigation by the police, which was eventually dropped only after a post-mortem found that her pregnancy loss was due to natural causes. She is still under emotional pressure as a result of that.

There is no distinction in the law between reproductive loss that is self-induced and prosecutions of men who provoke a miscarriage, meaning that it leads to the potential prosecution of domestic violence victims. Because of this law, women across the country are having their medical records accessed and being interviewed because they have experienced baby loss, and because of how sections 58 and 59 of the 1861 Act frame how public agencies approach women.

My second argument is that, even if we just focus on keeping women out of prison under this outdated legislation, we are still equating abortion with a criminal act, such as damaging property, stalking or theft, by suggesting community sentences. Indeed, Carla Foster has a suspended sentence that involves 50 days of rehabilitation activity. A woman with a community sentence still has a criminal record. It is still classed as a conviction. It remains on the police national computer indefinitely and can be used in future criminal proceedings. It has to be declared to employers and financial institutions, and could prohibit future work with children. She could be subject to curfews, obliged to live at a particular address, prohibited from travelling overseas or forbidden from taking part in certain activities in certain venues. She could be disbarred as a solicitor. It could affect a Disclosure and Barring Service check, and the ability of employers to discriminate on the basis of criminal convictions means that women having abortions could be discriminated against. That approach reinforces the idea that there is shame in having an abortion rather than it being a choice.

Even if someone thinks that that is acceptable, my third concern is that, especially since yesterday’s successful appeal by Carla Foster, we do have case law on which sentencing can be based. We need, as the right hon. Member for Basingstoke said, for compassion, not punishment, in the application of this. The Sentencing Council is an independent body, so there is no guarantee that it would agree with the approach that many of us would like to see, and that has been put forward today. It could open a can of worms regarding what the sentence could be. Frankly, the women currently facing a court case would not be helped by the Bill because of the length of time that it takes to develop sentencing guidelines. For motoring offences, it was 11 months. For animal cruelty, it was over a year. For perverting the course of justice—a recent one, in March 2023—it was also over a year.

My final concern is that looking at sentencing directly contradicts the call for decriminalisation, and the case for equalising the human rights of women in the United Kingdom. Women in Northern Ireland would never face a prosecution, or indeed an investigation, under the legislation because the law has been repealed there. I do not propose to divide the House on the Bill, although I know that there are many opinions about the way forward, because I recognise that behind it is an ambition that we all share, and the current situation is untenable. I cannot, however, support the Bill, and I know that many others cannot.

I urge the Government not to go down this path, but instead to enable the House to have a vote on the Back Benches, as the right hon. Member agrees that we should, on whether, as a matter of conscience, to equalise abortion rights across the United Kingdom, allowing the many of us who voted for such rights in Northern Ireland to extend them to our constituents, so that we can uphold the human rights of women everywhere. We know that the public are with us, and that those who oppose abortion on principle will continue to do so whatever the proposal. We also know that the time for real courage and real change is now, because the women facing investigations will not be helped by sentencing guidelines. The women frightened that their rights are at risk need and deserve nothing less.

Question put and agreed to.


That Dame Maria Miller, Sir Peter Bottomley, Ms Harriet Harman, Caroline Nokes, Sarah Champion, Wera Hobhouse, Tracey Crouch, Dame Caroline Dinenage, Matt Warman, Christine Jardine, Nickie Aiken and Theo Clarke present the Bill.

Dame Maria Miller accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 24 November, and to be printed (Bill 357).

Business of the House (Today)


That, at this day’s sitting-

(1) Standing Order No. 41A (Deferred divisions) shall not apply to the Motion in the name of David Rutley relating to Sanctions; and

(2) the Speaker shall put the Questions necessary to dispose of proceedings on the Motion in the name of Penny Mordaunt relating to All-Party Parliamentary Groups not later than 90 minutes after the commencement of proceedings on that Motion; such Questions shall include the Questions on any Amendments selected by the Speaker which may then be moved; the business on that Motion may be entered upon and proceeded with at any hour, though opposed; and Standing Order No. 41A (Deferred divisions) shall not apply—[Fay Jones].