Amendments made: 45, in clause 78, page 69, line 18, after “sections” insert

“(Testing of persons outside of police detention for presence of controlled drugs),”.

This amendment makes provision to bring NC13 into force on Royal Assent for the purpose of making regulations and issuing codes of practice.

Amendment 131, in clause 78, page 69, line 18, leave out “, 21 and 34” and insert “and 21”.

This amendment and amendment 132 provide for the clauses about serious crime prevention orders to be brought into force by regulations.

Amendment 46, in clause 78, page 69, line 18, after “regulations” insert

“or issuing codes of practice”.—(Chris Philp.)

See the statement for amendment 45.

I beg to move amendment 1, in clause 78, page 69, line 21, at end insert—

“( ) section ([Removal of women from the criminal law related to abortion]).”

This is an amendment conditional on the introduction of NC1. It would bring the new law into force on the day the Act is passed.

With this it will be convenient to discuss the following:

New clause 1—Removal of women from the criminal law related to abortion—

“For the purposes of the law related to abortion, including sections 58 and 59 of the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, no offence is committed by a woman acting in relation to her own pregnancy.”

This new clause would disapply existing criminal law related to the accessing or provision of abortion care from women acting in relation to their own pregnancy at any gestation, ensuring no woman would be liable for a prison sentence as a result of seeking to end her own pregnancy. It would not change any law regarding the provision of abortion services within a healthcare setting, including but not limited to the time limit, the grounds for abortion, or the requirement for two doctors’ approval.

New clause 2—Abortion: Decriminalisation—

“(1) The Secretary of State must by regulations make whatever changes appear to the Secretary of State to be necessary or appropriate for the decriminalisation of abortion, in line with the recommendation in Paragraph 31 of the CEDAW General Recommendation No. 24: Article 12 of the Convention that “When possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion”.

(2) Regulations under subsection (1) must—

(a) provide for the repeal of sections 58, 59 and 60 of the Offences Against the Person Act 1861,

(b) provide that no offence under these regulations or any other legislation is committed by a person complying with the requirements of subsection 1 of the Abortion Act 1967,

(c) provide that no offence under these regulations or any other legislation is committed by a person acting in relation to their own pregnancy where they have been coerced into taking that action,

(d) provide that no person acting in relation to their own pregnancy may be sentenced to a custodial sentence, and

(e) provide for alternative offences in relation to acts of abortion where the woman has not, or is suspected to have not, consented to the abortion.

(3) The Secretary of State may by regulations make any provision that appears to the Secretary of State to be appropriate in view of subsection (1), or (2).

(4) If regulations under subsection (1) are not approved by both Houses of Parliament within three months of this Act receiving Royal Assent, then sections 58, 59 and 60 of the Offences Against the Person Act 1861 are repealed.

(5) A statutory instrument made under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

I want to speak specifically to new clause 1, which was tabled by my right hon. Friend the Member for Kingston upon Hull North and concerns a matter close to my own heart: the removal of women from the criminal law relating to abortion. The Minister just made a compelling argument for ending the use of language from the Offences against the Person Act. Abortion remains a criminal act in England and Wales because of a piece of legislation from before any of us in this building were even born.

If a woman undergoes an abortion at any gestation without the permission of two doctors, whether she takes abortion medication bought online or a uses sharp object to end her pregnancy in desperation, she commits a crime that carries a maximum life sentence. Although the Abortion Act 1967 legalised abortion in certain fixed circumstances, the Offences against the Person Act 1861 and Infant Life (Preservation) Act 1929 maintain the criminal framework. In the 50 years following the passing of the Abortion Act, only three women in the UK have been convicted of an illegal abortion, but in the last 18 months, six women have appeared in court charged with allegedly ending their own pregnancy outside the law. Meanwhile, abortion providers have reported receiving escalating numbers of requests for women’s medical records from the police in relation to suspected abortion offences. The catalyst for this uptick in police investigations is unclear, but we need only look at what is happening in countries such as the USA, where citizens have lost their constitutional right to an abortion in recent years, and Poland, where a near-total ban on the procedure has taken effect.

Our laws in England and Wales are punishing women who are in the most desperate situations, and some are investigated when there is no evidence at all that they have had an abortion, and when they instead suffered premature labour, a late miscarriage or a stillbirth. Newspapers have reported harrowing stories of the impact on women in the most desperate circumstances. In one example, seven police officers arrived at the home of a woman who had called an ambulance when her baby was born prematurely. They searched her bins and provided no assistance while she performed mouth-to-mouth on her unconscious child, who was still attached to her placenta by the umbilical cord. The mother and baby survived.

In another example, a vulnerable 17-year-old girl presented to abortion services in the early days of the pandemic. She was unable to travel to a clinic on two occasions owing to covid restrictions, so passed the legal abortion limit and was referred to children’s services and antenatal care. Soon after, she delivered a stillborn baby at home, and was then investigated by the police on suspicion of abortion law offences. Another woman was taken from her hospital bed after undergoing surgery and was forced to spend 36 hours in a police cell while still suffering from the after-effects of birth. Women whose names are reported by the police to journalists have had threats posted through their doors, have had to leave their house, and have had social services remove children from their care.

The example that perhaps sticks in all our minds is from last summer, when a mother of three from Staffordshire was sentenced to 28 months in prison for using abortion pills to end her pregnancy. Although her appeal was successful, and she was released from prison the following month on a suspended sentence, the impact has been long-lasting and catastrophic. Overnight, she went from a mother living a quiet life to having her photograph and the ins and outs of her private life splashed across the nation’s papers. Even now, journalists try to doorstep her whenever another case is reported in the media. This supposed crime will, for her, as for those who have “only” raped their wife, forever remain on her record and show up on any Disclosure and Barring Service check for the rest of her life. That is despite Dame Victoria Sharp, the Court of Appeal judge who overturned the conviction, saying that the case

“calls for compassion, not punishment”.

Mr Justice Pepperall, in the initial sentencing, stated that this is

“a matter for Parliament and not for the courts”.

Those statements are why I propose an amendment to remove women from the criminal law, when it comes to abortion.

This amendment would ensure that vulnerable women in England and Wales were no longer subject to years-long investigations, criminal charges, or custodial sentences for ending their own pregnancies. That is all it would do. It would have no impact on the provision of abortion care. There would be no change to the time limit or the requirement for two doctors’ signatures. Women would still have to meet one of the grounds for abortion laid out in the Abortion Act 1967. Indeed, non-consensual abortion would remain a crime for any gestation and anybody, including a medical professional, who assisted a woman in obtaining an abortion outside the law would still be liable for prosecution.

The change is supported by more than 30 leading women’s rights groups and medical bodies including the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, Refuge, and the End Violence Against Women coalition. It is a tightly-drafted amendment that will ensure that now, in the 21st century, no more women in England and Wales will face jail for decisions made at the most difficult time of their life.

I thank the hon. Member for Birmingham, Yardley, for her passion on this subject, and for her very moving speech. She and I sat together on the Women and Equalities Committee, which took incredibly harrowing evidence from women in Northern Ireland about their circumstances. I have a very long track record—15 years —of voting on the issue of abortion, because it comes up for a vote nearly every month in the European Parliament. I always vote for the woman’s right to choose. However, I completely understand that not every parliamentarian holds the same view. It is a very sensitive and incredibly important issue.

It would not be right for the small handful of us here —there are not even the full 17 Committee members here—to have a vote that would change the law when the other 633 have not had the chance to give their view. They would consider that a constitutional outrage. I would not want those who have a view different from mine to say that we had done this incorrectly, under the cover of Committee, and not out in the open. This issue needs to be debated and discussed. A decision is needed on whether the change should be in this Bill, or whether we need a whole new Bill on abortion—we need to think about whether any of our abortion laws are fit for purpose in today’s age. However, we should not vote on this today and try to bind the other 633 Members of Parliament to what we decide in this room. I respect the manner in which this amendment was tabled, but gently request that we do not vote on it today, and ensure that it is debated properly by all our colleagues from across the House.

It is a pleasure to serve under your chairmanship, Sir Robert. My hon. Friend the Member for Birmingham, Yardley, made a detailed speech on new clauses 1, in particular, and 2, which were tabled by my right hon. Friend the Member for Kingston upon Hull North and my hon. Friend Stella Creasy respectively. We all recognise how sensitive and controversial the issue of abortion is. It is important that we get the law exactly right and ensure that any changes do not have unintended consequences. I am grateful to my colleagues for ensuring that the debate on the law around abortion remains very much a focus for us in this place as we strive to make the right changes. I commend the work of all colleagues across the House on this issue.

New clause 1 would disapply criminal law on accessing or providing abortion care from women acting in relation to their own pregnancy at any gestation, ensuring that no woman would be liable for a prison sentence as a result of seeking to end her own pregnancy. New clause 2 seeks to repeal sections 58 to 60 of the Offences against the Person Act 1861 and

“provide that no offence under these regulations or any other legislation is committed by a person complying with the requirements of subsection 1 of the Abortion Act 1967”.

The Abortion Act 1967 renders lawful activities that would otherwise constitute a crime under the Offences against the Person Act 1861. It provides criteria under which abortions or terminations can legally take place. Labour believes that abortion is an essential part of healthcare that is highly regulated. Let me make it perfectly clear today that we do not believe that women should be jailed for getting an abortion when they are doubtless at their most vulnerable. For that reason, a Labour Government will provide parliamentary time for free votes on modernising abortion law to ensure that Members of Parliament can deal with this issue once and for all.

Many cases and reasons over the years have led us to this point, but I will highlight again the custodial sentence in the case mentioned by my hon. Friend the Member for Birmingham, Yardley. It was deeply sad, and something that we do not want repeated. This mother was jailed for illegally taking abortion tablets to end her pregnancy during lockdown. The Court of Appeal reduced her sentence, and she has since been released. The original judge decided that she should serve half her 28-month term in custody and the remainder on licence, but the Court of Appeal reduced the term to 14 months suspended. Dame Victoria Sharp KC, who heard the appeal, rightly noted that—we have heard this already this afternoon, but I make no apologies for repeating it—this was a case that called for “compassion, not punishment”. Carla Foster pleaded guilty to a charge under section 58 of the Offences against the Person Act 1861—administering drugs or using instruments to procure abortion—a plea accepted by the prosecution. As we have heard, she will carry that record throughout her life. Dame Victoria told the court that “no useful purpose” was served by detaining Ms Foster in custody and added that her case had “exceptionally strong mitigation.”

The Government have put forward an amendment to the 1861 Act in relation to the administering of harmful substances. We have just debated that and can all welcome that amendment, but it gives rise to the question: why have the Government not proposed any modernisation of the abortion offences, including the sentencing range? We are talking about a very similar provision of the same Act. Can the Minister say why the Government are not taking this opportunity, while the matter is under the spotlight and the subject of important debate, to remove custodial sentences?

We know that there are strongly held views on abortion—I have said that already—but it is rightly a matter of conscience for Members. The threat of prosecution is a real fear for women, and very sadly it is a fear that deters doctors from wanting to enter this fundamental area of women’s healthcare. It may help the Committee to know that health professionals, in the shape of the British Medical Association, support action, too. The BMA’s brief said that abortion should be regulated in the same way as other clinical procedures that are subject to an extensive range of professional standards, regulations and criminal and civil laws, but it stresses that it does not support criminal sanctions for women who procure and administer their own abortion, or for health professionals administering abortions in the context of their clinical practice.

I await with interest the Minister’s response to Committee members’ comments and those of the BMA. Specifically, I would like to know what action the Government plan to take to stop women being jailed for this offence. I am well aware that Members from across the House have been working together in an attempt to get this right and may well table a different amendment on Report. What discussions has the Minister had with Members? Is she open to further discussions? Is there any prospect of the Government bringing forward their own clause to right this wrong? She knows, as I do, that we must take action. There is a clear consensus on this.

I am grateful to everybody who has spoken on this matter. Both new clause 1 and new clause 2 seek to decriminalise abortion. The Government maintain a neutral stance on these issues, but there are strongly held views across the House on this highly sensitive matter. They engage considerations of women’s rights and health, the rights of the unborn child, the viability of a foetus and the involvement of the criminal justice system. None of this is straightforward. It is an issue that, quite properly, Members will decide on according to their consciences, and I agree that it should be determined on the Floor of the House.

Let me begin by emphasising that the Government are committed to ensuring that all women in England and Wales have access to safe, regulated abortion services on the NHS under our laws. That includes telemedical abortions—sorry, I should probably refer to taking abortion pills at home when eligible, because “telemedical” is a confusing word.

As hon. Members know, in England and Wales the criminal offences relating to abortion must be read in conjunction with the provisions of the Abortion Act 1967, which provides exemptions to the criminal offences. The new clauses tabled by the right hon. Member for Kingston upon Hull North and the hon. Member for Walthamstow seek, in different ways, to decriminalise abortion for women acting in relation to their own pregnancies. If the will of the House is that the criminal law on abortion should change, whether by exempting pregnant women from the offences or otherwise, the Government would not stand in the way of such change, but we must of course be concerned with the fitness for purpose of any legislation proposed. With that in mind, I turn to the detail of the amendments, but it may be helpful if I first set out the relevant offences.

Under section 58 of the Offences against the Person Act, it is an offence for a pregnant woman, with the intent to procure her own miscarriage unlawfully, to take drugs or use instruments, and for another person, with the intent to procure the miscarriage of a woman unlawfully, to administer drugs or use instruments. Section 59 makes it an offence to supply or procure drugs, poison or an instrument intended to be used to procure a miscarriage.

The Infant Life (Preservation) Act 1929 deals with late-term abortions in England and Wales. Under section 1 of the Act, it is an offence for any person, with intent to kill a child that is capable of being born alive, to cause the death of that child before it is born, unless it is proved that the act was done in good faith and only to preserve the life of the woman. To illustrate how many criminal convictions there have been in last six years for which the MOJ holds data, it is one.

One too many.

Okay, but it is one, to give the Committee a sense of the scale of this issue in the criminal courts.

I turn first to amendment 1 and new clause 1, tabled by the right hon. Member for Kingston upon Hull North. The purpose of new clause 1 is to disapply existing criminal law relating to abortion from a woman acting in relation to her own pregnancy at any stage of gestation. Under section 6 of the Abortion Act 1967, “the law relating to abortion” means

“sections 58 and 59 of the Offences against the Person Act 1861, and any rule of law relating to the procurement of abortion”.

Section 5(1) of the 1967 Act provides:

“No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.”

New clause 1 refers to “the law related to abortion”. Unlike the Abortion Act, it is not limited to specific provisions, and it could therefore be interpreted as applying more widely. It could, for example, include other offences against the person that may apply in this context, such as maliciously administering a poison so as to endanger life or inflict grievous bodily harm. In that regard, it differs from the law as it applies in Northern Ireland.

The hon. Member for Walthamstow takes a different approach. Her new clause 2 would require the Secretary of State to decriminalise abortion through regulations. Among other things, the regulations would repeal sections 58 to 60 of the Offences against the Person Act and make provision for alternative offences in relation to non-consensual abortion.

I reiterate that, should Parliament wish to change the law, the Government will not stand in the way, but hon. Members may consider that there would be alternative ways to amend primary legislation. Leaving aside the way in which decriminalisation might be achieved, there is the question whether the repeal of section 60 of the Offences against the Person Act is appropriate. Section 60 makes it an offence for a person to conceal the birth of a child by disposing of the child’s body after its birth. There is a high-profile case in the papers today concerning exactly that issue. It is not generally considered to be an abortion offence and it is not limited to the abortion context. Repealing the offence could have unintended consequences.

On the point made by the right hon. Member for Chelmsford, I have to say that I have noted from prior conversations people’s level of fear that they might have to vote on this issue today. If I were on the other side of this debate, I would not stop and think for a second that the will of the House needed to be tested, or that there was not a sneaky way to change the legislation—but I am not. We have tested the will of this House a number of times in the nine years that I have been here, and on every single occasion Parliament has acted in a pro-choice manner and has had a pro-choice majority. I have no doubt that I would hold the majority should I press new clause 1 to a Division in this Committee.

I agree with the right hon. Member for Chelmsford that it is the will of the House that these issues need to be tested. As I have said, I have no doubt that we will win in that context. What I would say is that it is always women’s bodies that we say this about. There is a load of people who will never have the experiences that I have had personally, or that some of the other women in this room have had, but get to have an opinion about the way that I live my life and make my choices about my own body, and we are taught to sort of genuflect and respect that. It should be a women’s health issue. If this was the women’s health Bill, we would be more than happy to amend all sorts of things in this room, but we allow this issue to retain some sort of grandiosity, as if it is any more than having a prostate exam, which even the King is doing and talking about. It should not be a thing any more. We are doing line-by-line scrutiny; we should be amending small bits.

On the Minister’s point about the things that the Government have put in place, let me say on behalf of my right hon. Friend the Member for Kingston upon Hull North that she is welcome, because every single one of them came from an amendment that my right hon. Friend tabled. This is not her first rodeo; it is a long passion.

The thing I heard today that gave me solace was from my hon. Friend the Member for Stockton North, who said from the Opposition Front Bench that the Labour party will move to ensure that, under any Labour Government, Parliament has time to actually consider this issue, so that people do not have to tack things on to Bills that they might not quite fit in.

The Minister mentioned one person having been criminalised. I imagine that, if she goes away and gets the data on the number of incidents of domestic abuse where a miscarriage has been forced and the man has been charged with the same offence that she identified under the Infant Life (Preservation) Act, she will find that it is zero, yet that will have happened hundreds of times in the last few years.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 148, in clause 78, page 69, line 24, at end insert—

“(aa) section (Maximum term of imprisonment for certain offences on summary conviction);”—

This amendment provides that the new clause moved by NC47 comes into force two months after Royal Assent.

Amendment made: 132, in clause 78, page 69, leave out line 28.—(Chris Philp.)

See the explanatory statement to amendment 131.

Clause 78, as amended, ordered to stand part of the Bill.

Clause 79 ordered to stand part of the Bill.