My Lords, noble Lords may be aware that these represent the second version of the regulations. Given the unprecedented changes created by Covid-19, we had no choice but to remake them and give Parliament an additional 28 days to consider them. I am pleased that we can now debate the regulations today. In particular, I look forward to the remarks of the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, who will speak to their amendments.
The regulations provide the new legal framework for access to abortion services in Northern Ireland and ensure ongoing legal certainty from service provision starting with effect from 31 March 2020. As many noble Lords will be aware, prior to these changes, starting with decriminalisation in October 2019, abortion in Northern Ireland was accessible only where a woman’s life was at risk, or the pregnancy would adversely affect her physical or mental health in a manner that was “real and serious” and “permanent or long term”. This meant that women and girls were forced to travel to England to access services—1,014 in 2019 alone—or look to unsafe alternatives outside the healthcare system, thus potentially putting themselves at risk, and feeling scared to receive proper aftercare health treatment given the criminality. I can only start to imagine the distress that this has caused.
I recognise that this is an emotive issue and that views on all sides of the debate are strongly held. I am sure that this afternoon will be no exception. These are extremely difficult and often distressing decisions for women and girls and, where involved, partners and families. However, the essence of these regulations is to provide women and girls with the opportunity to be able to make individual informed decisions based on their own health and wider circumstances. As a result of the absence of the Assembly and a functioning Executive, Parliament placed this duty on the Government to act to protect the human rights of women and girls.
The Government have to provide lawful access to abortion services in Northern Ireland in a way that implements the recommendations of the CEDAW report on Northern Ireland, the underlying important premise of which is to ensure that abortions are delivered as part of safe sexual and reproductive healthcare services. Parliament voted through Section 9 of the NIEF Act with a two-thirds majority in support of decriminalisation of access to abortions, except for late-term abortions where the offence of destroying a child capable of being born alive would still apply.
The regulations set out the specific parameters within which abortions could legally take place. They first properly protect and promote the health and safety of women and girls and, secondly, provide clarity and certainty for the medical profession. We consulted on this: there was a six-week period, including briefings with the Northern Ireland parties and engagement with a range of representative groups and individuals with lived experience, followed by careful analysis of the submissions received. I acknowledge that there was a vote in the Northern Ireland Assembly on 2 June, but it was on one issue—severe foetal impairment—and was not a motion to vote down these regulations. As abortion remains a devolved issue, the Assembly is now able to legislate, or indeed amend the regulations, should it so wish, but only if it can agree a way forward that remains CEDAW and convention-compliant.
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because they (1) have been rejected by the Northern Ireland Assembly, (2) are legally flawed by being in breach of section 6 of the Northern Ireland Act 1998, (3) do not prohibit abortion on the grounds of non-fatal disability, (4) perpetuate stereotypes towards persons with disabilities, including Down’s syndrome, and (5) do not prohibit abortion on the grounds of sex selection during the first twelve weeks of gestation, as is the case in Great Britain, and therefore perpetuate negative stereotypes and prejudices towards women.”
My Lords, these regulations apply only in Northern Ireland; we now have a functioning Northern Ireland Assembly. Abortion is a devolved matter; the Assembly voted to reject these regulations on 2 June. The wording of the Motion was to “reject” these regulations. Of our 90 MLAs, 75 voted against the provisions for grounds of disability. When the NIO carried out its short consultation, 79% of respondents rejected these proposals. In the past few days, over 18,000 people have signed an open letter to Peers and MPs—I sent it to all noble Lords on Friday. They ask that you listen to them, and to the Northern Ireland Assembly, and do not approve these regulations. The Government have said that the vote is of no consequence: Northern Ireland must comply with its international human rights obligations. The CEDAW convention does not mention abortion. Article 29 is clear that nobody has the power to read in rights and none has been read in.
The report to the unelected, non-judicial UN CEDAW committee is not international law. There is no international legal obligation to pass these regulations. Parliament voted last July to require compliance with Articles 85 and 86 of CEDAW. The obligation makes it one of national, not international, law. What Parliament makes, Parliament can unmake; we could repeal Section 9. No international human rights obligations derive from the CEDAW report. The Government say they have to table these regulations; that is not right. Section 9 says that, having tabled a set of amendments, the Secretary of State has a discretion, not a duty, to make further regulations.
There are 41 speakers in this debate. Eight of us from Northern Ireland have just 13 minutes in which to speak while the other 77 minutes are for Members who are not from Northern Ireland. Ninety minutes are not enough, given that no Northern Ireland Members are on the JCSI or the SLSC. The SLSC drew the regulations to the special attention of the House because Parliament was denied an opportunity for scrutiny and this is the first occasion on which your Lordships have been able to consider this radical change. There is no opportunity for amendment.
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because (1) they are drafted in such a way as to promote the stereotype that those with non-fatal disabilities are worthy of less protection in law than those who are not disabled; (2) to that extent they do not comply with the recommendation in paragraph 85 of the United Nation’s Committee on the Elimination of Discrimination against Women’s report Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, published on 21 March 2018, in particular that legal grounds for abortion should be expanded ‘without perpetuating stereotypes towards persons with disabilities’; and (3) to that extent they are counter to the decision of the House on 17 July 2019 in amending the Northern Ireland (Executive Formation etc) Bill to implement the recommendations of paragraph 85 of that report.”
My Lords, I rise to speak to my amendment and in support of the amendment moved by the noble Baroness, Lady O’Loan, with specific reference to paragraphs (3) and (4). Many of us will have received an update from our party Whips about today’s business. My update stated unambiguously that, “Even though this is government policy, it will be a free vote.” There is no beating about the bush: this is official government policy which we are being asked to support. I think that that bears closer examination. In asking noble Lords to support the fatal amendment in the name of the noble Baroness, Lady O’Loan, I make it clear that while I will not be moving my amendment to a vote, I am asking them, in supporting the noble Baroness, to reject the official policy of the Government and therefore of the Conservative Party because it undeniably promotes and perpetuates disability discrimination.
As the youngest member of the National Disability Council, which was created some 25 years ago by the then Conservative Government to advise on the implementation of their ground-breaking Disability Discrimination Act, I helped to define in codes of practice what disability discrimination actually looked like. Central to the concept was the premise that there should be evidence of less favourable treatment on account of a human being’s disability. I would be interested to know how my noble friend the Minister thinks denying a human being who has been diagnosed before birth with a non-fatal disability such as mine the equal right to be born is somehow not less favourable treatment.
I have seen disability discrimination close up and I know what it looks like. That brings me to a report by the UN Committee on the Elimination of Discrimination Against Women. I am sure that my noble friend is familiar with Article 85 of Section VII, on page 21. But just in case he is not, let me remind him of what it says, and incidentally what the Government are deliberately choosing to go against. As the noble Baroness has explained, it states that abortion services should be expanded
My Lords, while I respect the views of others who disagree on this highly sensitive issue, as the referendum on abortion bringing radical change in the Republic of Ireland showed, there is now huge pressure on the island of Ireland for women’s rights. That was the impetus behind the change legislated for by this Parliament under the 2019 Act. I am sorry, but it is no good some local Assembly Members complaining. While they squabbled, refusing to do their jobs and instead maintaining Stormont in ignominious suspension for three years, the world moved on without them.
Women in Northern Ireland are now entitled to the same rights as in all other parts of the United Kingdom, and it is our statutory obligation to implement these regulations helping to set out the legal framework for services that will bring Northern Ireland into line with the rest of the UK and meet the requirements of Article 8 of the European Convention on Human Rights.
The procedure imposed by the Leader of the House is wholly inadequate, and proper scrutiny of government is failing.
For over a year Parliament has discussed how it will enable women and girls in Northern Ireland to access safely the healthcare they need. Consultation has been extensive and transparent, both here and in Northern Ireland. Abortion is now decriminalised but remains highly regulated, as it should be, and staff uphold legal and professional standards. Women who have been raped or abused can now obtain the treatment they need close to home; Northern Ireland no longer exports the problem. Women whose 20-week scan reveals that they have severe foetal abnormalities will now have access to the safe services they need. These regulations should be supported and fully implemented as soon as possible for the benefit of all women in Northern Ireland.
6:33 pm
The Lord Bishop of Carlisle [V]
My Lords, I support the amendment from the noble Baroness, Lady O’Loan, and will focus on the proposal in Regulation 7 that abortion for disabilities including Down’s syndrome should be available during the first 12 weeks without question or counselling and then potentially through to birth.
The General Synod of the Church of England has overwhelmingly approved a motion on valuing people with this syndrome. We have worked closely with people such as Heidi Crowter, who has Down’s syndrome and has already been widely quoted in the House of Commons calling on MPs and Peers not to vote for regulations that, in her words, “contain discriminatory provisions”.
If we approve these regulations we will be in the contradictory position of declaring on the one hand that people living with disability are valued, respected and cherished, but on the other that any disability—which can be a very broad concept—in and of itself, and regardless of other considerations, constitutes an automatic ground for termination.
My Lords, be clear: CEDAW makes no mention of abortion. Moreover, the committee report—which is binding only because we have made it so—expressly condemns disability-discriminatory and sex-selective abortions, which these regulations do not. Instead, they fly in the face of devolution, ignoring the overwhelming and united views of Northern Ireland’s majority, manifested in polls and a recent vote of the Northern Ireland Assembly.
These regulations also fail the good governance test. Our Secondary Legislation Scrutiny Committee said the time provided for consultation—which generated 21,000 responses, with 79% opposed—was
“too short for so sensitive a topic.”
It concluded that Parliament was denied
“an opportunity for scrutiny before the instrument came into effect.”
Ignoring our own scrutiny committee, the devolved Assembly and the considered views of disability groups, charities and the Attorney-General for Northern Ireland will simply bring Parliament into disrepute. That is why, whatever your views about abortion, we should vote “Content” to my noble friend’s amendment.
6:36 pm
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I will now give a brief overview of the key elements of the regulations. They provide for access to abortions without conditionality up to 12 weeks’ gestation. This ensures a system that avoids any further trauma or a barrier to access for victims of sexual crime, as required by CEDAW. This provision is necessarily different from the law in the rest of the UK, given the decision by Parliament to decriminalise abortion in Northern Ireland, which creates a different starting point for the statutory framework. These different parameters do not result in unintended consequences, such as allowing sex-selective abortions, as some have suggested. The regulations also set out a further three circumstances in which an abortion is possible.
The first is: up to 24 weeks’ gestation in cases where continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman or girl, greater than the risk of terminating the pregnancy. The second is in cases of severe foetal impairment and fatal foetal abnormalities, with no gestational time limit. This is where there is a substantial risk that the condition of the foetus is such that the death of the foetus is likely before, during or shortly after birth; or, if the child were born, it would suffer from such physical or mental impairment as to be seriously disabled. We recognise these are very distressing circumstances, usually arising in cases of wanted pregnancies, and appropriate support and provision of information are key so that women can make informed decisions, based on what is right for their health and wider circumstances, including if they want to carry the pregnancy to term and have proper support going forward. The third is in cases where there is a risk to the life of the woman or girl, greater than if the pregnancy were terminated, or where necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or girl, with no gestational time limit. In such cases, the regulations require that two medical professionals certify in good faith that the ground for the abortion has been met. While CEDAW’s report is silent on the question of gestational limit in such circumstances, we consider the aforementioned grounds an appropriate way of delivering on our statutory duty and implementing the recommendations of the CEDAW report in a way that will work effectively in practice.
The regulations allow for abortions to be provided by a doctor, nurse or midwife. They may be carried out in general practitioners’ premises, clinics provided by a health and social care trust, and health and social care trust hospitals, operating under the overall Northern Ireland health and social care framework. The Department of Health in Northern Ireland has a power to approve other places. Medical professionals are required to notify the Northern Ireland CMO of the abortion, alongside other relevant data specified in the regulations, with subsequent annual publication of data.
Finally, the regulations impose a criminal sanction on anyone who intentionally terminates or procures the termination of the pregnancy of a woman otherwise than in accordance with the clear requirements and conditions set out in the regulations, including the certification and notification requirements. This is about where someone is acting dishonestly or negligently—not where a medical professional forms an opinion as to risk in good faith and certifies that an abortion can take place but makes a factual error—and requires the consent of the DPP before proceedings can be brought under the regulations. Other criminal laws also continue to apply, including Section 25 of the Criminal Justice Act 1945, which prohibits the destruction of a child otherwise capable of being born alive, but abortions provided in accordance with the grounds of the regulations are exempt from this and no woman or girl can be prosecuted with respect to ending her own pregnancy.
I know that many noble Lords have expressed concerns that this has resulted in a more liberal regime than Great Britain’s, but this is not the case. The regulations deliver equivalent outcomes in practice and access to services to those in the rest of the UK while still implementing what CEDAW requires. The Government stand ready to provide whatever support and guidance we can to the Northern Ireland Minister for Health and his department to assist with setting up abortion services in line with these regulations.
I look forward to the debate and will seek to address as many questions as I can in closing. I hope that the regulations will be supported. I beg to move.
Some of these regulations do not even comply with CEDAW. Article 85 expressly stipulates that expanded access to abortion on the basis of disability must be made
“without perpetuating stereotypes towards people with disabilities”.
That is what these regulations do. They afford viable unborn babies from 24 weeks’ gestation protection from abortion, while saying that viable babies of exactly the same age can be terminated just because they have a non-fatal disability. Are the Government interested in achieving compliance not with Article 85 but with approving the 1990 discriminatory law in Great Britain which is now subject to legal challenge?
The regulations make sex-selective abortions lawful because there is no impediment to such abortions in them. The Minister has written to the noble Baroness, Lady Eaton, to say that the absence of an impediment does not mean that sex-selective abortion is permissible. In our legal system, anything is lawful unless it is unlawful. Canada introduced access to abortion without conditionality and the Canadian Medical Association Journal says that Canada is now regarded as a “haven” for sex-selective abortion. The identification of sex is available to pregnant mothers between seven weeks and 10 weeks of gestation. The Government have said that this is an abhorrent practice which is illegal in Great Britain because the grounds on which one can get an abortion do not include the sex of a child. In January of this year, the Government said that that is what English law states. These regulations will make abortion up to 12 weeks’ gestation lawful for any reason, which must include foetuses of the wrong sex. People think that we are being asked to vote for this measure to send a signal that sex-selective abortion should be accommodated throughout the UK. CEDAW has said that it
“aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
The regulations are silent on the matter of coercive abortion. The Istanbul convention requires protection against coercive abortion. I know that it has not been ratified, but we are supposed to be becoming more and not less compliant with it. In 2019 the Government said that Section 58 of the Offences Against the Person Act covers such behaviour, but it has been decriminalised and this House voted to remove it. Moreover, the regulations fail to provide the new, explicit offences that were promised by the Government. The only penalty for any offence is an inadequate fine of up to £5,000.
The Northern Ireland Attorney-General and many other eminent QCs have argued that Regulations 7, 12 and 13 are ultra vires. This resulted in a letter that was sent to all Members by a group of 38 Peers and MPs from across the UK and five different political groupings, highlighting that these regulations are not intra vires. Indeed, the repeal of part of the Criminal Justice Act is not even mentioned in the CEDAW report.
The Secondary Legislation Scrutiny Committee has expressed serious concerns about the inadequate nature of the consultation process. Be in no doubt: if you vote for these regulations, you will be giving discrimination a fresh mandate for GB, not just Northern Ireland. The regulations are not consistent with Section 9 and they have been rejected by the Northern Ireland Assembly. The proposals were rejected by 79% of respondents. Repeated demonstrations have occurred and an earlier letter to the Northern Ireland Minister was signed by 23,000 people. The regulations are not even compliant with CEDAW on disability discrimination and sex selection. This is not an international human rights obligation on the UK.
I ask noble Lords to listen to the people of Northern Ireland and listen to our Assembly. Do not approve these regulations. I will call a Division.
Amendment to the Motion
“without perpetuating stereotypes towards persons with disabilities”.
No doubt my noble friend will be able to quote back to me Article 62 of Section VI on page 16. If not, let me jog his memory. It states that
“the Committee aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
I will be intrigued to hear from my noble friend the Minister how what the Government are pushing through Parliament is compliant with the committee’s recommendations in Articles 85 and 62, which I have just read out. But perhaps I am being stupid; after all, I am only a disabled parliamentarian. Perhaps I am missing something, or perhaps I am not.
Perhaps the Government could not care less about flouting not only the committee’s instructions but your Lordships’ House’s clear instruction, given almost a year ago today on 17 July 2019, when it amended the Northern Ireland (Executive Formation etc) Act 2019 to implement the recommendations of paragraph 85 of the CEDAW report.
Why does my noble friend the Minister think CEDAW, your Lordships’ House and, more recently, the Northern Ireland Assembly have all focused on the danger of stereotyping? It is hardly rocket science. The answer lies in two words, which both begin with the letter D: disability discrimination. That is what the Conservative Party claimed to have outlawed when it passed the Disability Discrimination Act 1995, yet here we are a quarter of a century later, with the Conservative Party back in government, asking people to continue to believe that it is against disability discrimination while imposing it on the only part of the United Kingdom that is a safe haven for human beings diagnosed with a disability before birth.
In conclusion, I implore the Prime Minister to intervene and save the credibility of his promised national disability strategy, which I presume is to counter discrimination. As a proud Conservative, I reject this government policy of disability discrimination and urge all noble Lords to do the same.