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Abortion: Offences against the Person Act

Volume 734: debated on Thursday 15 June 2023

Before we come to the urgent question, I must tell the House that it is very possible that an appeal against the sentence will be made. While I am content for the House to discuss the general issues, Members should avoid commenting on the specific sentence in this case. They can, of course, discuss the changes they would like to see made to the law. I also remind Members that they must not criticise judges in particular cases.

(Urgent Question): To ask the Secretary of State for Justice if he will make a statement on section 58 of the Offences against the Person Act 1861.

Section 58 of the Offences against the Person Act 1861 is the offence of administering drugs or using instruments to procure abortion. I recognise that abortion is a highly emotive issue across the House, and I understand the strength of feeling on both sides of this debate.

The Government are committed to ensuring access to safe, legal abortion, and ensuring that all women in England and Wales have access to regulated abortion services on the NHS. I also want to be absolutely clear at the outset that, as you have alluded to, Mr Speaker, I am unable to comment on any decisions made by a court in specific cases. Decisions made by a court are based on the facts and evidence before the court, and are a matter for the court and the judiciary. Access to abortion in England and Wales has been settled in law by Parliament, and we do not intend to change this. It takes nothing away from our commitment to ensuring access to safe, regulated abortion.

Let me briefly set out the law as it stands. The Abortion Act 1967 allows for safe and lawful abortion in England and Wales. It defines the criteria under which abortions or terminations can legally take place. In effect, lawful abortions can be carried out in the first 24 weeks of pregnancy, where two doctors agree that the abortion is necessary and that it falls within one or more of four grounds. In practice, this means that access to an abortion is available to those who need and want it. Abortions beyond 24 weeks are also possible in more limited circumstances.

Abortions outside of these provisions are a criminal offence in England and Wales, while the criminal law in Scotland and Northern Ireland is a matter for the devolved Administrations. In England and Wales, the criminal law provisions in the Offences against the Person Act 1861 and the Infant Life (Preservation) Act 1929 have to be seen in conjunction with the provisions in the Abortion Act 1967, which provides exemptions to the criminal offences. The Government have a duty to see that the provisions of these Acts are properly applied, until and unless Parliament chooses to further amend the law. We believe that abortion continues to be a matter of conscience, and any changes to the criminal offences relating to abortion or to the Abortion Act 1967 would normally be subject to a free vote and a matter for Parliament, rather than a matter for His Majesty’s Government.

Thank you, Mr Speaker, for allowing an urgent question on this important matter of public policy. As we know, earlier this week a mother of three children was sentenced to a period of imprisonment for ending her pregnancy and was prosecuted under section 58 of the Offences against the Person Act, a piece of legislation dating from 1861 that carries a maximum sentence of life imprisonment.

This case was desperately sad, and thankfully rare. It has been debated widely in the media and throws up important questions that merit an open debate in a healthy democracy. Crucially, though, it throws a spotlight on our antiquated abortion laws. Government and Parliament must look at this outdated legislation and make it fit for the 21st century. Can I therefore ask the Minister the following questions?

How do the Government reconcile the fact that women in Northern Ireland have already been removed from the criminal justice system by a vote in Parliament on 9 July 2019? The provisions of the Offences against the Person Act no longer apply in Northern Ireland, and there is a moratorium on abortion-related criminal prosecutions, so women in one part of the United Kingdom are treated differently from women in other parts of the United Kingdom in relation to the criminal law, which cannot be right.

Secondly, what is the Government’s view on the statement from leading medical bodies, including the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, raising concerns about the chilling effect of the current legal position and of the custodial sentence in this case, which they say

“may signal to other women who access telemedical abortion services, or who experience later gestation deliveries, that they risk imprisonment if they seek medical care”?

Finally, as we know, decriminalisation does not mean deregulation, and time limits would still apply. Have the Government undertaken any review of the necessary regulation that would be required if the criminal law were removed from this area of healthcare law in England and Wales? And have they engaged with the royal colleges and Professor Dame Lesley Regan, the women’s health ambassador, on establishing a new regulatory regime for abortion that does not involve putting women in prison?

As this is my first opportunity at the Dispatch Box this week, and as an east midlands Member of Parliament, I put on record that my thoughts are with the families and all those affected by the terrible incident in Nottingham. Our thoughts go out to that great city and all those involved.

It is important to remind the House that the right hon. Lady has taken a principled and passionate interest in this issue for many years. I will not comment on the specifics of the case. The House has heard her very carefully worded references and, if she will forgive me, I do not propose to add to them because there is still the possibility of further legal proceedings in that case and I do not want to pre-empt anything in that space.

The long-standing position remains that it is for this House to seek to make changes, if it so wishes, but not for the Government. As I said, any such vote would be, in normal process, a free vote and would be brought before the House in the context of a private Member’s Bill or perhaps through the tabling of a dextrous amendment, which I know some Opposition Members are not averse to doing, and with success.

The position in Northern Ireland is due to a decision made by the House, cognisant of the fact that there would be different regimes in Northern Ireland and in England and Wales. Again, we respect the will of the House in that respect.

Sentences are a matter for the courts. As the right hon. Lady said, Parliament set the maximum sentence at life imprisonment, and it is open to Parliament to change that if it so wishes, but the courts have to apply the law as set by this Parliament, or by a previous Parliament many, many decades ago.

I accept the right hon. Lady’s final point that any change would not be about deregulation, and I heard her make that point very clearly on the radio a few days ago, seeking to frame it in a public health or health context, rather than a criminal context. Again, that is a matter for the House, not for the Government.

I am not aware of any specific conversations between the Government and the royal colleges and others on regulation. Were Parliament to show its will and seek to change the law, the Government would, of course, work to implement the will of Parliament effectively and efficiently.

Given advances in care for babies born prematurely, might this be a good time for the Government to facilitate a debate in Government time, followed by a free vote, to get at least an indicative feeling of where the House now stands, given the current situation?

What debates are scheduled in Government time is a matter for the Leader of the House, who is in her place and will have heard my right hon. Friend’s representation, on which I am sure she will reflect.

I thank my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson) for this vital urgent question, where she has highlighted the current problems clearly.

On behalf of colleagues, let me say that this is a shocking, tragic and complex case. Three children have been left without a mother. Women should be able to get access to safe, legal abortion. We are worried that this judgment will deter women from seeking urgent medical and healthcare support that they need—that is paramount. Of course, there need to be safeguards and time limits in place, to prevent late-term abortion, which does mean there needs to be some kind of legal framework. However, we do not want to see vulnerable women serving prison sentences or being prosecuted when it is not in the public interest to do so.

I ask the Government to work with us to look at options to prevent an awful case such as this from happening again. More immediately, I ask that the Sentencing Council looks at this case to stop this sort of circumstance, with this sort of sentence. It needs to do that because no guidelines are in place for this section of the 1861 Act and it needs to produce up-to-date guidance. We should not have vulnerable women sent to prison like this.

The Director of Public Prosecutions must also review the guidance on public interest prosecutions. Will the Government review the legal framework to see how best to ensure that women are not deterred from seeking medical and healthcare advice, while keeping proper safeguards in place? We will, of course, work with the Government, on a bipartisan basis.

The Minister has said that this a matter of conscience and for a free vote in the House, so I know that there will be Ministers who have been absent or opposed action to improve access to abortion. 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. We ask them to note that the legal framework currently has two legal frameworks: one for Northern Ireland and one for the rest of the UK. [Interruption.] And I thank the Speaker for his indulgence. [Laughter.]

May I say that that was dextrously done by the shadow Leader of the House? She makes valid points in her typically reasonable and measured tone. She is right to highlight that this was an extremely complex and emotive case. Again, I hope she will forgive me for not straying into commenting on the judgment or the decision taken in this case. There is a legal framework for safe abortions, which is set out in the Abortion Act 1967. It set out the conditions under which abortion is legal and is available.

On the hon. Lady’s comments about the CPS, I gently say that in considering any decision it has to look at both the evidential test and the public interest test. However, the CPS is independent and it makes those decisions; again, it would not be appropriate for a Minister to comment on CPS charging decisions. Similarly, the Sentencing Council is independent, and it determines what to review and how to review it. I suspect that it will have heard her comments, but, again, it would be inappropriate for me to seek to direct the Sentencing Council, given its independent function.

Like the right hon. Member for Kingston upon Hull North, the hon. Lady mentioned that there is a difference in the frameworks in Northern Ireland and in England and Wales. The House was cognisant of that difference when it chose to make that decision, and that decision must be respected. As for any future decisions made by this House, I simply reiterate that were the House to seek to change the law and come up with a different framework, the Government would of course work to implement the will of the House.

When the House debated whether it should be possible to receive an abortion pill through the post, we warned that there might be a tragic case such as this. Some people in the abortion industry are now using this tragic case to argue for some sort of legal right to abortion up to birth. Given that many babies are surviving at 24 weeks, that is an obscene and cruel proposal. Surely the solution, given that it is difficult to determine gestation without an in-person appointment, is to return to the system of in-person appointments, so that women can receive safe, legal abortions if they wish.

I am grateful to my right hon. Friend; his remarks highlight that there are strongly and sincerely held views on both sides of this debate, and it is right that those views are respected and able to be aired in Parliament. In noting that, all I would say on his final point is that although I respect his view, the House did debate that matter, and it expressed its view and voted accordingly.

The Royal College of Obstetricians and Gynaecologists has stated its belief

“that prosecuting a woman for ending their pregnancy will never be in the public interest.”

Even though the Offences Against the Person Act 1861 is England and Wales legislation, constituents of mine, and I know of other MPs in Scotland, have been in touch concerned about this shocking case and the precedent that it sets in a worldwide context of erosion of women’s bodily autonomy. Abortion is a devolved matter and the SNP remains committed to protecting the legal right to essential healthcare, which is what abortion services are, safely and free from stigma. I hope to see more progress in Scotland on this area. I welcome that today sees the lodging of the final proposal for MSP Gillian Mackay’s private Member’s Bill on buffer zones in Scotland and I wish her all the best with that.

Is the Minister concerned that this judgment may create a chilling effect on women accessing healthcare services and, given the outrage that the judgment has caused, would he support decriminalisation to prevent this from ever happening again?

The hon. Lady highlighted a number of points there. As she rightly highlighted, this matter is devolved in Scotland. I know the Holyrood Parliament will be considering it in due course and that is, of course, a matter for that Parliament.

On the hon. Lady’s comments about the public interest, that is one of the tests that the Criminal Prosecution Service applies in making a charging decision—whether there is sufficient evidence and whether it is in the public interest. It would be inappropriate for me as a Minister to second guess or comment on the decisions that it reaches in individual cases.

On the hon. Lady’s final two points, again, whether the law in this area should be changed is a matter for this House, not for the Government. This is a matter of conscience for Members of this House. This House is not shy about expressing its will, as we have seen on various matters, and I suspect that this may well be debated again.

In respect of the hon. Lady’s concerns about the impact the judgment may have, again, I will be cautious in not commenting on the judgment itself, save to say that I believe that, under all the provisions that impact in this space, there have been only two convictions in five years.

I always find it distressing, when these issues are debated, that so little concern is expressed for the welfare of the unborn child. Surely that should be an equal priority, alongside the mother’s health. Does the Minister agree that the least the Government could do in view of this case is review the regulation of the providers who send out these pills?

Again, my hon. Friend’s contribution highlights to the House that there are genuine and sincerely held views on both sides of the debate, with colleagues concerned about the unborn child’s rights and, equally, colleagues concerned about the mother’s right to choose and the mother’s health. It is right that those points are aired. On his specific question, that would be a matter for colleagues at the Department of Health and Social Care and I will ensure that they are aware of his question.

Following this shocking case, a constituent contacted me about her experience of seeking an abortion. Her partner is on medication, one side effect of which is that it can cause serious foetal abnormalities. For that reason, she was advised to seek an abortion, only to be told that it was not a legally valid reason, which seems ludicrous, and that she should make up another reason. Will the Minister commit to reviewing and updating the legally valid reasons for having an abortion?

I hope the hon. Lady will appreciate that I cannot comment on a specific case. She may wish to write to me and I will see, depending on circumstances, whether there is anything I can write back to her with, but I do not want to set expectations because I will have to judge that when I receive the correspondence. However, she is welcome to do that. Again, her question is essentially relating to changes to the legal framework around abortion. As I have set out, that is a matter for this House—the will of the House—and individual parliamentarians in a free vote.

This tragedy would not have occurred had there been a requirement for a face-to-face consultation and clinical administration of the drugs, would it?

My right hon. Friend will appreciate that I am not going to comment directly on this case and the judgment involved, but I refer him to the answer I gave some moments ago in respect of that decision: this was debated and the House expressed its view.

I start by joining the Minister in expressing our condolences to the people of Nottingham. I had the honour of meeting Grace O’Malley-Kumar when she and her father were part of the vaccination effort in my local community. She was a wonderful young woman who clearly had a very bright future ahead of her.

The 67 prosecutions in the last 10 years under this legislation and the conviction that we have seen in England and Wales show that it is not a theoretical issue to consider whether women in England and Wales have a legal right to an abortion. They do not have a situation where they are exempted from prosecution. The situation is completely different in Northern Ireland, where this House voted to implement a human rights approach and give women in Northern Ireland a human right—something the Minister himself did not oppose when it came before this House. Has he had any legal advice on the inequality in the ability of women within the UK to exercise their human right to choose what happens to their bodies?

I am pleased the hon. Lady’s voice held up through her question. I suspect she possibly still knows some of those who are friends with Grace, so I hope that through her I can pass on my condolences to them.

The hon. Lady is a passionate campaigner on these issues and dexterous in her use of amendments and the procedures of this House to make progress on the campaigns that she cares about. On her point about Northern Ireland, I have not received legal advice on any impacts of the differential regimes, but I gently reiterate that the House made that decision knowing that it would create a different regime in Northern Ireland, and I respect the will of the House.

Regardless of one’s views on abortion, surely it must be that those women seeking an abortion get proper medical advice so that their health and the health of the unborn child are protected?

I am grateful to my hon. Friend, who makes an entirely sensible point. It is important that, when women make what is a very difficult decision, they have access to appropriate advice to assist them in making that decision. That advice is perhaps more a matter for colleagues in the Department of Health and Social Care, but I will ensure that they are aware of this urgent question.

Not only has a great deal of concern been expressed in this place about the case, but I am sure we have all received representations from constituents who are concerned and alarmed that this could happen. It has created uncertainty among women. What is the law? What are their rights? That is another reason why I ask the Minister to press for a debate in this place, so that we can address the law and reassure women about the situation.

This House has debated these issues on a number of occasions, certainly during my time in the House and during the hon. Lady’s time in the House. The Leader of the House is not in her place at the moment, but she will have heard the point that has been made. Any such decision on a debate would of course be a matter for the usual channels and the Leader of the House, but I will again ensure that she is aware of that request.

It appears to me that every time anyone comes to this place and speaks openly about the rights of the unborn baby, they tend to get shouted down and jeered at. I am pretty sure that this subject will come to this House again in the not-too-distant future, and I am pretty sure it will vote to relax these rules. But before it does that, I want this House and this country to think of those unborn babies. They are lives—after 6 weeks old, those babies are fully formed and it is just a case of them growing, as we continue to do when we are outside the womb. We should also do all we can to help people to have as few unwanted pregnancies as possible. I am sure no woman goes to an abortion clinic and has an abortion and does not hate that experience. I am sure it is something that no woman ever wants to do. Can we just think of those unborn babies and of the women having those abortions? Maybe, if they had used contraception or had looked at things in a different way, these babies would not have happened.

My hon. Friend highlights again that there are sincere and genuinely held views on both sides of this debate. Respect for those divergent views must characterise how we debate what is an extremely sensitive issue. This place, the heart of our democracy, is the right place for such views to be debated and discussed.

How is it possible that Roman Catholic Spain and Italy—home to the Vatican —have decriminalised abortion but we have not?

The right hon. Gentleman will know that different approaches are taken across Europe—for example, the UK has a 24-week limit; in most European countries that is much lower, at 12, 13 or 14 weeks. There are differences of approach across European countries such as France. We are roughly in line with the Netherlands in terms of the time limit. I take his point, but there is genuinely a wide range of approaches across European countries on some of the specifics in this space.

In 2020, this House amended the law in Northern Ireland to remove the threat of criminal sanctions for any woman who attempted to end their own pregnancy. There is cross-party agreement in this place that more must be done to protect a woman’s right to abortion. I have great respect for the Minister, I have heard what he has said, and I understand that Parliament knew this would be the case when we established the different framework, but may I implore him to extend the same protections elsewhere in the UK so that no more women in desperate circumstances are ever threatened with prison again?

The hon. Lady knows that, as well as having a huge amount of respect for her, I consider her a friend. I listen very carefully to what she says. I reiterate that Parliament was cognisant of the divergence when it made this decision. Of course, it is open to Parliament—if it so wishes at some point in the future—to change in the usual manner the framework in England and Wales. But that is not a matter for the Government; it is a matter for this House and a matter of conscience.

The Minister says that abortion is “a matter of conscience” for the House, but it is also a matter of women’s mental and physical health. Surely Parliament has a duty to ensure that there is a consistent, humane and modern legislative framework that supports women’s wellbeing. On that point, could he confirm whether women’s personal data in relation to that medical treatment remains private and under their control?

The hon. Lady makes a clear point about the divergence between the regimes of the two jurisdictions, and she rightly highlights the physical and mental health aspects of what is always going to be an incredibly difficult decision for any woman to take. It is, as I say, open to Parliament to make further changes through the usual routes—private Members’ Bills and similar—if it so wishes. On her latter, technical question, I understand that to be the case, but will she allow me to write to her? I do not want to unwittingly mislead her in any way.

I am hopeful that the Minister will soon bring forward something so that we can discuss this. As colleagues on all sides of the House have said, there is a need for a modern, fact- based discussion. Will he ask his Conservative colleagues to ensure that, when we have those discussions, male colleagues are not speculating about what might be in a woman’s mind when she goes to seek treatment of that kind?

The hon. Lady makes a couple of important points. Any legislation or changes to the legislative framework will, of course, be a matter for the House via the usual mechanisms in this space—private Members’ Bills and so on. In respect of debating the matter in the House, I cannot prejudge that, but I know that the Leader of the House will have heard hon. Members’ requests, and I am sure that she will, as she always does, reflect carefully on their views. In respect of the hon. Lady’s final point, I go back to what I said a few moments ago: respect, and respect for different people’s views and perspectives, as well as for what different people are thinking and feeling, must characterise debate of what is clearly a highly emotive and sensitive issue.

The Minister seems to be saying that if something is deemed a matter of conscience and subject to a free vote, it is never a matter for Government legislation and bringing it forward is reliant on private Members’ Bills or Back-Bench amendments, as we saw with the Northern Ireland situation. Surely that is a total abdication of responsibility. We used to see that with LGBT rights, when free votes were allowed across the House. Is it not up to the Government to show leadership on this issue—which is primarily a healthcare issue for women, whether it is physical or mental health—and bring forward legislation that we can discuss?

The hon. Lady will know that on matters such as abortion and assisted dying, it has been a long-standing approach by Governments of both parties—hers as well—that those are matters for the House and not for Government. In respect of what would happen were the House to legislate, I have already made clear that if the House did express its will through legislation, Government would of course respect that and work to implement whatever the House decided efficiently and effectively.

I thank the Minister for his balanced answers. If the right hon. Member for Kingston upon Hull North (Dame Diana Johnson) thinks that section 58 should be replaced because it was made a long time ago, why is she not asking for repeal of the entire Offences against the Person Act? The whole Act is old. The age of legislation is irrelevant. What is important is what it does. Section 58 provides vital protection for not just the person but the most vulnerable person of all: the unborn child. Will the Minister commit to protecting the sanctity of life, as other developed European nations do, where the average limit is 14 weeks, and uphold section 58? Will he urgently review safeguards for the pills-by-post scheme, to ensure that such a case never happens again?

I know that the hon. Gentleman has strong and sincerely held views on this subject. In respect of the broader provisions in the 1861 Act, I have to be honest that I do not know whether the right hon. Member for Kingston upon Hull North would like to keep them, and I will not presume to know her mind. It is quite possible that she would like to see further changes, but the scope of this urgent question is this section 58 of the Act.

The hon. Gentleman is right to highlight that there are strong views on both sides of this debate. We have heard from other Members about the rights of the unborn child, but we have also rightly heard about the health rights of mothers and a woman’s right to choose. We have to recognise that this needs to be a balanced debate, with views listened to respectfully on both sides. On his final point, that will be a matter for colleagues in the Department of Health and Social Care, but I will ensure they are aware of the point he makes.