Contribution
My Lords, my Amendment 456 has the support of the noble Baronesses, Lady Wolf and Lady Falkner, and the noble Viscount, Lord Hailsham. I am especially grateful to the noble Baroness, Lady Wolf, who unfortunately cannot be here due to a prior commitment overseas.
This is a simple amendment: it would reinstate the offences that Clause 191 would otherwise decriminalise for women acting in relation to their pregnancies. The amendment also provides that criminal proceedings against any woman acting in relation to her pregnancy could not be instituted without the consent of the Attorney-General. Under the current law, a woman may avoid criminal liability if defences such as duress apply. The effect of Clause 191 would be that, regardless of circumstances, it would never be a criminal offence for a pregnant woman to do any act with the intention of procuring her own miscarriage at any stage of the pregnancy. It would, however, remain an offence for any other person to administer drugs or use instruments to cause an abortion. If Clause 191 is adopted, we would end up with a law that simultaneously denies criminal responsibility to the principal—again, regardless of individual intent or circumstances—while maintaining it for others.
I am grateful to the noble Baroness, Lady Hayman, for the very useful meeting that she arranged before Christmas for some of us and the proponents of Clause 191, in particular Ms Antoniazzi MP. As the proponents explained to us, what has prompted Clause 191 is a rise in completely unmeritorious investigations against women. Some of these cases are genuinely appalling. For example, we know of the case of a woman who went into spontaneous premature labour, called for help and instead of being met by medical support was met by the police. While she was still trying to resuscitate her prematurely born baby, even before the paramedics arrived, the police were in the house searching the bins. She was separated from her critically ill baby and investigated for a year for abortion offences, despite medical tests confirming she had not taken any medication.
There are other cases where women have been forced to take abortion pills by an abusive or violent partner, and they were put under criminal investigation while the partner was not. These investigations seldom result in prosecutions and the very few prosecutions hardly ever result in a conviction.
Under our amendment, the consent of the Attorney-General would be required to institute criminal proceedings, not to open an investigation, but there are reasons to believe that this procedural requirement would have a restraining impact on the investigation phase too. The Attorney-General cannot give consent retrospectively. The CPS’s guidance for offences that require AG consent makes it very clear that prosecutors should seek consent before charge.
The current policy for these offences also requires the involvement of senior officials. Before a case is submitted to the Attorney General’s Office for consent, a deputy chief crown prosecutor or deputy head of a central casework division must check that the case has been prepared to an appropriate standard. Following on from that, a lawyer at the Attorney General’s Office will review the application before placing it before the Attorney-General. That lawyer may seek further information or clarification from the relevant prosecutor and their line manager. It is also necessary to ensure that the Attorney-General is allowed sufficient time to consider the case, so that he can make his own assessment.
Finally, for all these offences, the role of the Attorney-General does not end with the consent to prosecution. The Attorney-General will have to maintain an interest in the progress of the case and be kept up to date.
The amendment cannot rule out the risk of an inappropriate or unmeritorious investigation. That risk cannot be ruled out for any offence on our statute book. The amendment seeks to balance competing legal and moral principles, while taking into account the reality of the situation.
The requirement for Attorney-General consent should discourage the police from investigating cases that will not pass muster not only with the CPS at a senior level but with the Attorney-General. The requirement would also offer an opportunity for a tightening of the policy in respect of these offences so that the risk of unmeritorious investigations and prosecutions is further reduced. The amendment does not specify a requirement for the Attorney-General to introduce guidance on the circumstances in which consent would be given, but it is to be expected that such guidance will be published and could make it clear that the bar is, indeed, high.
This is a probing amendment. There are other amendments in this group that I am interested in and inclined to support to mitigate what seems a rather radical approach in Clause 191. It would be of assistance in this debate if the Government could help us understand a bit more about what is really happening with these investigations.
To conclude, I have three brief questions for the Minister. First, what is the latest available data on these investigations, and do the data confirm an increase in criminal investigations against women since 2020? Secondly, how do the Government explain this rise in investigations? Finally, other than Clause 191—which, of course, was not part of the Bill originally—what policy steps have the Government been considering to remedy this problem?