That the Regulations laid before the House on 23 March be approved.
Relevant documents: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument) and 23rd Report from the Constitution Committee
My Lords, these regulations will provide the Secretary of State with the power to direct a Northern Ireland Minister, a Northern Ireland department, and the Health and Social Care Board of the Public Health Agency to take action necessary to implement all the recommendations in paragraphs 85 and 86 of the 2018 United Nations Committee on the Elimination of Discrimination Against Women, known as the CEDAW report.
We recognise that this is an unprecedented step, but such is the nature of the statutory duties on the Secretary of State for Northern Ireland that we have to act. While the regulations themselves are short, they are necessary to ensure that abortion services are available as a healthcare service in Northern Ireland, which will provide safe and local access for women and girls. We have made the most appropriate step in terms of the scope of any direction being limited to only what is needed to ensure that the CEDAW recommendations are implemented. This power, if exercised by the Secretary of State for Northern Ireland, can be used only for those purposes and will go no further.
I remind the House of the background to this. The House will recall that in 2019, during an ongoing absence of devolved government in Northern Ireland, Parliament decided that it was time to step in on this matter on the basis of human rights. These statutory duties did not fall away with the restoration of devolved government. We have always sought to deliver in a way that respects the devolution settlement, by putting in place the legal framework, but recognising that healthcare is devolved and therefore service provision should be delivered and overseen locally by the Department of Health and relevant health bodies with the relevant legal powers, policy and operational expertise to do so.
Noble Lords will also recall the previous debates that we have had on the 2020 regulations and the strongly held views across the Chamber on a range of finely balanced policy issues. This debate today is not about re-opening that; it is about ensuring that the duties under Section 9 of the NIEF Act can be implemented in full at the earliest opportunity. It is our firm view that the regulations that we made in 2020 established a new legislative framework that is operationally sound, works best for Northern Ireland, and delivers on the Government’s statutory duty. That is why we do not intend to amend the regulations.
So why are we here today? We are here today to do everything we can to demonstrate how committed we are to fulfilling the Government’s statutory obligations, and to ensure that women and girls in Northern Ireland have access to high-quality abortion and post-abortion care, consistent with the conditions set out in the 2020 regulations. As I have said, I recognise the emotive nature of these issues, but what is the issue at hand? As many noble Lords will be aware, over a year after the 2020 regulations came into force, women and girls in Northern Ireland are still unable to access high-quality abortion and post-abortion care in Northern Ireland, and the commissioning of full abortion services, consistent with the conditions set out in the 2020 regulations, has still not happened. In 2019, 1,014 abortions were provided in England and Wales for women from Northern Ireland, and women and girls still have to travel to access these services.
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because (1) the Northern Ireland Assembly is now sitting and the matter is devolved to that legislature; (2) the Regulations raise “complex legal and constitutional questions” in the view of the Secondary Legislation Scrutiny Committee; (3) the Regulations go beyond the Abortion (Northern Ireland) (No. 2) Regulations 2020 in that they undermine the devolution settlement in respect of education as well as abortion policy; (4) there has been no public consultation on the Regulations; and (5) the Regulations were laid shortly before the parliamentary Easter recess, which prevented the House considering them before they took effect.”
My Lords, I give notice that I intend to press my amendment to a vote. These regulations give the Secretary of State for Northern Ireland a power to direct a Northern Ireland Minister or department, the Health and Social Care Board and the Public Health Agency to take any action for the purpose of implementing the recommendations in paragraphs 85 and 86 of CEDAW. The powers conferred in these regulations are therefore extremely wide.
The Government have asserted that they have a duty to bring these regulations, but there is no time limit. This is work in progress for the Assembly and there can be no justification for intervening in the work of the Northern Ireland Assembly on this sensitive issue, disregarding the devolution settlement. The regulations will be implemented through directions from the Secretary of State. It is said that a direction will look like a statutory instrument, but we have procedures for statutory instruments. There are no procedures to scrutinise what is done by the NIO.
I ask your Lordships to vote against these regulations because the Assembly is sitting and the matter is devolved to that legislature. The regulations raise
“complex legal and constitutional questions”;
they go beyond the Abortion (Northern Ireland) (No. 2) Regulations; they undermine the devolution settlement in respect not only of abortion policy but of education; there has been no public consultation; and the regulations were laid just before Easter, preventing the House from considering them before they came into effect.
Your Lordships will recall that this started in July 2019 when a group of MPs, none of whom represented Northern Ireland, urged upon the other place a duty to give effect to the CEDAW recommendations. There was no obligation on Parliament to give effect to them. All the Northern Ireland MPs voted against them, but their votes and the votes of the Northern Ireland Assembly were ignored. The Government did not question what was said in the other place and proceeded to make an unworkable House of Commons clause into Section 9 of the executive formation Act. There were no international legal obligations, something that the Government have now recognised.
It is important that your Lordships’ House respects the attempts being made in Northern Ireland to deliver effective devolved government. I ask noble Lords to vote for my amendment and reject this further attempt to undermine the Northern Ireland Assembly. Help us. Have courage. I beg to move.
My Lords, the United Kingdom is a relationship between three nations and a Province, a relationship in which together we are more than the sum of our component parts. The union has worked hitherto because Parliament has recognised that it cannot be used to impose a uniformity that undermines the key distinctiveness of the component parts. Parliament could, at any point since 1707, have voted to impose an English legal system on Scotland, but it has not because that would be to fatally disrespect Scotland and render the union unsustainable.
One of Northern Ireland’s distinctions pertains to its approach to the unborn. As the then Secretary of State said in 2018,
“Abortion has been a devolved matter in Northern Ireland since it was created in 1921, and it would not be appropriate for Westminster to seek to impose its will, or to be the arbiter of an issue that has long been devolved to the people of Northern Ireland.”—[Official Report, Commons, 5/6/18; col. 220.]
In the last 50 years in particular, we have developed a distinctive approach that affirms the importance of both lives, the life of the mother and that of the unborn. That may not matter to people in other parts of the union, but it matters very much to the people in Northern Ireland. We are proud of the report that demonstrated in 2017 that 100,000 people are alive in Northern Ireland today who would not have been had we embraced the Abortion Act in 1967 along with the other jurisdictions in GB. Moreover, after a complaint and a five-month investigation, the Advertising Standards Authority ruled that this was a reasonable claim.
What makes the regulations before us today deeply problematic is that they rest on the regulation-making power in Section 9, which was developed on the back of a vote that took place on 9 July 2019 in which 100% of the Northern Ireland MPs who took their seats in Northern Ireland voted no, yet this radical Northern Ireland-only law change was imposed on us by MPs, none of whom has a mandate to represent Northern Ireland. The strength and reality of the union is not confirmed by the ability of the sovereignty of Parliament to impose legislation that pertains only to a component unit of the union against the wishes of its representatives. Rather, it is confirmed by the fact that even though Parliament could impose in these instances, it does not and instead respects the different priorities of the different components of the union in order that the union can continue.
—of dispensing with the Northern Ireland tradition because doing so was a greater priority to Members of Parliament than the continuation of the union.
My Lords, I shall speak to the amendment in my name and give notice that I intend to test the opinion of the House.
I am a severely disabled parliamentarian who believes that I have as much right to exist as anyone else. The regulations may not apply to me directly, but they still threaten me because they challenge that right by devaluing my existence. The narrative of the regulations is that I should not really exist. Indeed, I would be better off dead. The Minister cites CEDAW, but I wonder how that narrative does not perpetuate a negative stereotype against disabled people, which CEDAW expressly prohibits. If we pass the regulations today, not only are we endorsing lethal disability discrimination right up to birth but we are in practice saying to anyone who is born with a disability that they somehow escaped the net.
To his credit, the Prime Minister has committed to publishing in the near future the most ambitious and transformative disability plan in a generation, so it is somewhat odd that Her Majesty’s Government should none the less think it appropriate to publish regulations whose ambition is not to transform the lives of human beings with disabilities but, rather, to ensure that they never see the light of day.
I have to say that there seems to be a slight disconnect in the Government’s messaging. Perhaps the Minister could explain to the House, to me and to Harry Cahoon from Belfast, whose mother, Grace, emailed me yesterday, how it makes sense for the Government to tell human beings born disabled, “We want to support you but only if we haven’t found and killed you first.” My bones break easily. Harry, who is a happy 17 month-old baby, has an extra chromosome. Brittle bones and Down’s syndrome respectively are our medical conditions. We both, therefore, meet the criteria in the regulations that we have a physical or mental impairment that deems us to be severely or seriously disabled, so under these regulations we would qualify for death right up to birth.
My Lords, I preface my remarks by making the observation that it is against the law, throughout the whole of the United Kingdom, to compel or coerce a woman to have an abortion against her will. This House is talking today about the legal provision of services that are locally accessible to women and girls who need them. It is part of an ongoing debate between those of us who believe that women and girls are capable of making—and have the right to make—informed choices about their reproductive health, informed by health practitioners who wish to guarantee their safety, and those who do not. There was much that I took exception to in the speech of the noble Lord, Lord Shinkwin. I do not have time to address those issues today, but I hope that the House will return to some of the very serious allegations that he made.
When noble Lords listen to the arguments today, they will hear many deeply held views, but they are not views about the devolution settlement; they are about Members’ opposition to abortion. Those Members not only oppose the reform of Northern Ireland abortion law by Westminster but also support the restriction of abortion rights across Great Britain. They have worked to enable nurses and doctors to block women accessing the care to which they are legally entitled and have sought to stop essential clinical developments in abortion care, such as telemedicine.
We know that when it is difficult for women to access abortion care, maternal health suffers across the board. We know that, before the change in the law in 2018, over 1,000 women a year travelled to England and Wales from Northern Ireland for a termination of a pregnancy —and, during the dangerous time of the pandemic, they have continued, in their desperation, to do so. We really must not return to that because, as ever, it is women who are poor, and women in coercive relationships who cannot escape, who will suffer the most.
This measure is, unfortunately, necessary because the Northern Ireland Assembly has, over 15 months, frustrated every attempt to make sure that women have access to the services that they need. This is a limited measure simply to enable women to access the healthcare that they need. What timetable does the Minister envisage for women to be able to access services across all four health and social care boards in Northern Ireland? When will we see the reintroduction of telemedicine, a service that has proved so effective in England?
My Lords, as noble Lords have said, at the very heart of this debate are the women, unborn children and their families who are affected by this issue. We must almost have them at the forefront of our consideration. I found what the noble Lord, Lord Shinkwin, said very powerful and moving. As the father of a child born with severe disability myself, I entirely understand what he said. I have spoken to, and been friendly with, many families with children with disabilities. They have found their family lives richly rewarding and speak powerfully to the value of every life. That must always be central when we discuss the issues of constitutionality, devolution settlements, the Sewel convention, parliamentary rights and so on.
On this side of the argument we simply ask that all lives matter. In consultation after consultation in Northern Ireland—and this is a devolved matter—the people of Northern Ireland have responded by saying that they value all lives and that they do not want the sweeping laws that have been introduced there to apply to them, especially when no one has voted for that. We now have the most liberal abortion laws anywhere in the United Kingdom and, even if you believe in abortion, you cannot say that that is a correct and proper process for Northern Ireland.
The Northern Ireland Assembly voted to reject these regulations on 2 June 2020. This is not some theoretical matter which the Assembly has not considered; it did consider it and, because of the sweeping nature of the laws, rejected the regulations. The Secretary of State for Northern Ireland was quoted by the BBC as saying that he was, nevertheless, committed to the regulations because they must comply with a UN convention. However, as has been pointed out, there are no such convention obligations. Paragraph 7.7 of the Explanatory Memorandum says that
“paragraphs 85 and 86 of the CEDAW Report”,
3:17 pm
The Lord Bishop of Carlisle
My Lords, we are all aware of the sensitivities surrounding abortion, as the noble Viscount, Lord Younger, has observed, and also of the wide range of deeply held views that it provokes. However, whatever our own particular standpoint on abortion per se, which is, as the House has been reminded, now legal in Northern Ireland, there are two specific aspects of these regulations which must be of general concern. One has to do with devolution, as we have already been reminded. To quote from a recent statement issued by the Archbishop of Armagh:
“It is a matter of regret that the Secretary of State for Northern Ireland intends to seek powers from Parliament to give direction to the Department of Health in Northern Ireland around what is clearly a devolved matter.”
Many others, including 250 clergy from several denominations in Northern Ireland, have made a similar point about these regulations undermining the devolution of the Northern Ireland Assembly, now that it is functioning again. There is a strong and widespread sense of democratic deficit in this regard.
The other issue which demands urgent consideration is the recommendation in paragraph 85(b)(iii) of the CEDAW report that abortion should be legalised in cases of “severe foetal impairment”; that is, disability, including Down syndrome. We have debated that before in your Lordships’ House and it has been raised already in this debate. Members of the Assembly have also already strongly indicated their support for a Private Member’s Bill which rejects the inclusion of abortion on the grounds of non-fatal disabilities. The regulations now before us seem to disregard that entirely. Indeed, they would replace one of the most conservative abortion regimes in the United Kingdom with one of the most liberal and discriminatory. That accords neither with the wishes of a majority of Assembly Members nor with the views of a significant majority—79%—of those who responded to a recent public consultation on this subject.
For these two reasons in particular, I cannot support the regulations as they currently stand. In the event that they are approved, I note that the Secretary of State is not mandated to use draconian powers to ensure their full implementation. I hope that, in that instance, it might be possible for him to work closely with the devolved Administration to bring about an outcome that is rather closer to their position on this contentious topic.
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It has always been our expectation and preference that the Department of Health drives forward the commissioning of abortion services and ensures that these services become embedded in the health and social care system in Northern Ireland as an accepted and recognised healthcare service. While some abortion services have been provided since April 2020, and over 1,100 abortions have been provided in Northern Ireland, I am disappointed that services have not been formally commissioned, supported or funded by the Northern Ireland Department of Health, and that no guidance has been issued nor any official support measures put in place.
I hope that noble Lords will agree that at the very heart of this matter is the health of women and girls who have been, and continue to be, denied the same reproductive rights as women in the rest of the UK. Women and girls are entitled to safe, local healthcare. Indeed, during the pandemic this is even more crucial. We understand that managing the Covid-19 response has been an immense challenge and has placed the health and social care system in Northern Ireland under considerable pressure. However, the fact is that the law changed over a year ago. This is not a new issue that is a surprise to the Executive. Following the Northern Ireland (Executive Formation etc) Act 2019 receiving Royal Assent, and the Section 9 duties coming into effect, we engaged with all the Northern Ireland parties on this matter, and we continued to engage, being clear that Parliament had stepped in, and we would be delivering on those legal duties accordingly.
We are disappointed with the continuing failure of the Department of Health and the Northern Ireland Executive to commission abortion services consistent with the regulations that we have made, despite having extensively engaged with the Minister for Health, his department and wider members of the Executive on this issue for over a year. However, I put on record my thanks to the medical professionals who have ensured that women and girls have had some access to abortion services in Northern Ireland to date, and the organisations that have supported this work. I pay particular tribute to the late Professor Jim Dornan, a leader in his field and a passionate advocate for health issues such as cancer, but also women’s reproductive rights.
Looking ahead, our strong preference remains for the Minister of Health and his department to take responsibility for upholding these rights, for commissioning services and for delivering on what the law now clearly allows. Let me make an important point. As abortion remains a devolved issue, the Assembly is able to legislate or indeed amend the regulations, should it so wish, but only if it can agree a way forward that is convention-compliant. However, the Secretary of State has an ongoing statutory obligation to ensure that the CEDAW recommendations are implemented in Northern Ireland.
It remains our preference that the Department of Health moves forward with full commissioning of abortion services in line with the regulations. That is why we are giving it every opportunity to act on this matter. I look forward to the debate and will seek to address as many questions as I can in my closing remarks. I hope that these regulations will be supported today and I beg to move.
Amendment to the Motion
This is a matter that should be dealt with by the Assembly. Work has been ongoing. There is a very firm belief in Northern Ireland that every life matters, that both mother and baby matter. There is provision, such as that suggested in CEDAW recommendations 85 and 86, for support for mothers and for those who make the choice, sometimes with great difficulty, to have an abortion. Undoubtedly, more resources are required. Registered medical professionals in Northern Ireland now terminate pregnancies lawfully at no cost to the mother. Such terminations must, under the terms of the regulations passed here, be carried out in health and social care premises. Some 1,345 abortions were carried out in the past reporting year. Abortion is available in Northern Ireland, and safely.
Northern Ireland’s health service was described as broken pre Covid. Mid-Covid, in January 2021, almost one in five of our population was waiting for a first out-patient appointment; half them have been waiting for more than a year. In December 2019 and January 2020, just before Covid, the Royal College of Nursing called the first strike action in its 103-year history in Northern Ireland. With great respect, it is for the political representatives of Northern Ireland to devise a way forward on the provision of health services and abortion services.
Northern Ireland is in a parlous state. Our Assembly is functioning but our political situation is very fragile. Brexit brought civil unrest and the terrorists—ever present—have become more active. Last week a bomb was left in a car into which a young police officer was about to put her three year-old daughter. Noble Lords will have seen the rioting which was switched on on Good Friday and lasted over two weeks. Some 88 police officers were injured, civilians were injured, families were threatened and property was destroyed.
Northern Ireland has a devolved Government. Most recently the Secondary Legislation Scrutiny Committee said that these are politically and legally important issues and should have had more consideration. Our Assembly faces more significant problems than the rest of the UK because of our history, the instability of our current situation and the impact of the EU NI protocol. We are in a different place from the rest of the UK. There is no imperative to affirm these regulations today.
If affirmed they will further marginalise the Northern Ireland Assembly in its attempts to do business co-operatively—
The passage of Section 9 and these regulations has swept those normal conventions to one side. First, it was argued on 9 July 2019 that Parliament was duty-bound to pass the amendment that became Section 9 because Northern Ireland was in violation of international human rights convention obligations under CEDAW and the recommendations of the 2018 committee report on Northern Ireland. However, in paragraph 7.7 of the Explanatory Memorandum accompanying the regulations today, the Government now confirm that paragraphs 85 and 86 of the CEDAW committee report do not constitute legally binding international obligations. As such, they do not provide grounds for overruling devolution or, more fundamentally, the understandings that make it possible to argue for the relationship that exists between the UK’s four component parts.
Secondly, it has been argued that, quite apart from international legal obligations, the law change introduced by Section 9 was necessary because of domestic UK legal process through the Supreme Court judgment on abortion in Northern Ireland in 2018. However, that argument is plainly absurd. The Supreme Court made no binding judgment whatsoever on abortion law in Northern Ireland. It reviewed narrowly whether certain elements of the law in Northern Ireland were not human rights compliant, not whether there was a general right to abortion.
The two areas where the court considered there would be non-compliance under Article 8 of the ECHR were abortions on the grounds of a fatal foetal abnormality and in cases where a pregnancy was the result of sexual crime. The judgment was not binding but, had Stormont been sitting and the law been amended accordingly, it would have resulted in a tiny increase in the number of abortions and the life-affirming traditions of Northern Ireland would have largely continued.
In the context where the existence of life-affirming laws is a long-term distinctive Northern Ireland legal tradition backed by its representatives on 9 July 2019, and where there is no justification for sweeping that aside on the basis of either international obligations or the ruling of the Supreme Court, one has to confront the harsh reality that the only reason why we are here today is that Parliament decided to take the risk—
That is ultimately what the regulations are about: death for disability—in other words, state-sanctioned, state-sponsored lethal disability discrimination. It is tragic that, despite the immense sacrifices of my grandparents’ generation, who fought and died in the war, the eugenicist poison that informed Adolf Hitler’s Aktion T4 euthanasia programme against disabled human beings is now informing government policy and being imposed on the people of Northern Ireland.
We have a choice: do we effectively endorse lethal disability discrimination, or do we instead send a resounding message of affirmation to human beings born disabled, and to their families, that your Lordships’ House upholds their dignity and equality? I beg to move.
For decades, women and girls in Northern Ireland have been weighed down by the politics of the past. Today is another opportunity for this House to give them hope for the future.
on which the legislation was based, and which we were told was its justification,
“are not binding and do not constitute international obligations.”
We therefore need to be very clear, when we come to vote, exactly what we are voting on, and keep all those unborn children in mind.