Emily Thornberry: On 5 September, the Crown Prosecution Service issued a statement justifying its decision to take no further action regarding two doctors who had been caught in a Daily Telegraph sting allegedly assisting an undercover journalist to procure an abortion on the grounds of the gender of the fetus. The original statement started with a statement of the law:


“The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender.”

That, incidentally, is how I would read the law. The statement went on to say that although the case was not straightforward, on balance there is enough evidence to justify bringing proceedings for an attempt.”

The plain English reading of that is that there was enough evidence to prosecute for an offence of procuring an illegal abortion purely on the basis of not wanting a child of a specific gender. But the decision not to prosecute was taken on the grounds that it would not be in the public interest. The CPS said:

“Taking into account the need for professional judgement which deals firmly with wrongdoing, while not deterring other doctors from carrying out legitimate and medically justified abortions, we have concluded that these specific cases would be better dealt with by the GMC rather than by prosecution.”

The statement added that “when looking at the culpability of the doctors in this case, we must take into account the fact that doctors are required to interpret the law and apply it to range of sensitive and difficult circumstances which are not set out in the legislation.”

The statement concluded by attaching weight to the level of harm to the victim, which in this case was none as no abortion took place.

I found the statement very disturbing and that day wrote to the Director of Public Prosecutions to request him to review the decision not to prosecute. My first objection was that I could not understand how it could be in the public interest not to prosecute in respect of an abortion that was carried out on the basis of gender alone. Gender-based abortion is part of a complex of misogynistic beliefs and practices to which we cannot give an inch. Along with female infanticide, it is the purest expression of the belief that the male is more valuable than the female, for invariably gender-based abortion involves the destruction of female fetuses; we do not hear of male fetuses being aborted.

Women are not the weaker sex. We are not a curse. We are not a burden to be disposed of as a family sees fit. What is more, people have to be completely myopic not to see that if it becomes known that doctors are taking a no-questions-asked attitude to gender-selective abortions, women will be pressurised into having them. Gender-selective abortions are at root an exercise of patriarchal and communal coercion, not female choice.

Jim Shannon: I want to ask a question of the hon. Lady in her position as shadow Attorney-General. Is it her opinion that the decision not to prosecute should be reviewed, and could it be reviewed by the Attorney-General?

Emily Thornberry: If the hon. Gentleman will hold his breath, I will get there. In my view, it is not in the public interest for us to behave in this way. We must make it absolutely clear that, as a country, we have no truck with this. I am a staunch advocate of women’s right to choose, but I do not accept that that corners me into supporting something as plainly monstrous as gender-selective abortion.

I am also concerned that if the public see abortion as being used for gender selection, support for abortion will erode. In my view, there has been and remains a clear majority, albeit a silent one, in favour of abortion, and their views are reflected in the very thoughtful contributions made today by the hon. Member for Totnes (Dr Wollaston) and my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott). We must not play into the hands of the likes of those who claim that the most dangerous situation to be in in Britain today is to be in a womb and to be a female. We need to take a sensible view of this.

My second objection, which was echoed at the time by the former Director of Public Prosecutions, Lord Macdonald, was about the amount of deference that the CPS seemed to be showing the medical profession. The CPS seems to believe that doctors can have the discretion to disapply the law in their surgeries. It seems to me that when a roofer breaks the law, he is hauled into court and faces the prospect of prison. When a doctor does, he should also be hauled into court and should not simply be heard by a panel of his peers with no criminal powers. That is taking the idea of “Doctor knows best” far too far. The rule of law has to apply to all equally; otherwise, it is meaningless.

Following the outcry, the DPP, Keir Starmer, has issued a statement seeking to explain further the reasoning behind the decision. That statement, which comes a full month later, introduces a number of new lines of argument, while quietly dropping some of the old ones. Mr Starmer now tells us that the evidential threshold for the allegation that this was a gender-based abortion has not been met. He says that that was because other factors were alluded to during the discussion between patient and doctor. Instead, the matter hinged on whether the doctors fulfilled their duty under the Abortion Act to carry out a sufficiently robust assessment of the risk to the pregnant woman’s mental and physical health to reach a good-faith opinion that the continuation of the pregnancy would involve a risk, greater than if the pregnancy was terminated, to the woman’s mental and physical health. The director explains that there is no guidance on how a doctor should assess that and therefore no yardstick by which to measure whether the doctors’ assessments fell below a standard that any reasonable doctor would consider adequate. The director concludes that it would be of questionable public interest to prosecute amid such uncertainty.

That is a more elegant and persuasive way of hoofing the matter back to the GMC. Gone is any suggestion that we will not prosecute criminal attempts because the victim is unharmed. Gone is any impression given by the earlier statement that the very fact of the GMC’s involvement is sufficient and that the criminal courts need not be involved. Gone is any suggestion that it is somehow okay for doctors to abort fetuses merely because they are female.

I am reassured by the director’s statement that had the decision boiled down to one of whether to prosecute on the basis that the doctors attempted a gender-specific abortion, “there might be powerful reasons for a prosecution in the public interest”.

To my mind, the director’s statement illustrates the need to ensure that the DPP personally signs off all decisions about prosecutions under the Abortion Act 1967, whether those decisions are in favour of or against prosecution. I hope that the Attorney-General can assure the House that that is what will happen in future.

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