My Lords, I too support the amendment and the obvious corollary amendments later, which are designed to confine the conscience exemption to hands-on participation, as explained in the Supreme Court decision to which the noble Lord, Lord Steel of Aikwood, referred—the Doogan case, which came from Scotland. As amended in the proposed way, the Bill would precisely give effect to that unanimous decision of the Supreme Court. It was a single, convincing judgment from the noble and learned Baroness, Lady Hale, who is now, of course, the President of that court. That decision is the last and most authoritative word on the true interpretation of Section 4 of the 1967 Act, the conscientious objection clause, which has now stood for half a century.
Although an article by the noble Baroness, Lady O’Loan, in The House magazine published shortly before Second Reading suggested that the Doogan decision had in fact narrowed that statutory exemption and that therefore there should now be a wider interpretation in order to “re-establish” or “reaffirm” what Parliament enacted 50 years ago, that is not so. As I have no doubt the noble and learned Lord, Lord Mackay of Clashfern, would confirm, Doogan, on the law as it currently stands, was correctly decided and what this Bill now seeks to do, therefore, is to persuade Parliament to change the law and to give an altogether wider reach to the previous conscience clause than has hitherto been thought appropriate.
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In paragraph 11 of her judgment, the noble and learned Baroness, Lady Hale, referred to a House of Lords decision in 1989 which rejected the claim by a health centre secretary and receptionist who had argued
that the conscience clause entitled her to object to typing a letter from a GP referring a patient to a consultant with a view to a possible termination. Is it now suggested, one asks, that Parliament should overturn that decision? The House of Lords held in that earlier case that participating—that is the critical word that governs the 1967 Act and, of course, this Bill too—meant,
“actually taking part in that process”,
that process being the termination of pregnancy. The noble and learned Baroness added this sentence:
“It did not have the extended meaning given to participation by the criminal law”.
I respectfully suggest that that comment exposes the fallacy in an argument that certainly the noble Lord, Lord Elton, who, alas, is not in his place today, advanced at Second Reading. His argument was that we should approach the question of how closely associated with a pregnancy termination one must be in order to invoke the conscience clause in the same way as one decides who should be regarded as guilty of aiding and abetting a burglary. Plainly, anybody keeping a look-out during a burglary or anyone driving a getaway car is guilty, but I respectfully remind those who are attracted to this analogy that of course burglary is a crime: it is something we actually take steps to discourage. That is why we have wide secondary criminal liability for it and punish those who contribute in any way to its commission. Abortion, by contrast, is lawful, and those undergoing it are entitled to terminate their pregnancies.