Abortion Regulations: Northern Ireland

(Urgent Question): To ask the Secretary of State for Northern Ireland if he will make a statement on the abortion regulations for Northern Ireland.

As the Minister responsible for this policy area, I shall answer the question.

The Government originally laid the Abortion (Northern Ireland) Regulations 2020 in Parliament on 25 March on the provision of abortion services in Northern Ireland. The regulations came into force on 31 March 2020 and became law on access to abortion services in Northern Ireland. The regulations were originally required to be debated by 17 May to remain in force as law. However, the unprecedented situation created by covid-19 has impacted on parliamentary processes, and virtual voting systems were not yet fully implemented in time for the regulations to be debated in both Houses. Therefore the Abortion (Northern Ireland) (No. 2) Regulations 2020 were laid and came into force on 14 May, revoking the earlier regulations. That gives Parliament an extra 28 days to consider and scrutinise the regulations properly, given the nature of this policy.

This approach has ensured that the law on abortion in Northern Ireland itself, a requirement specified by the House in the Northern Ireland (Executive Formation etc) Act 2019, continues to apply with no risk, gap or legal uncertainty, and services can continue on the same basis in Northern Ireland as they are currently operating. The regulations are due to be debated in the House in a Delegated Legislation Committee on Monday 8 June and in the Lords after that. I understand that a committee has been empanelled to consider the regulations. I welcome the fact that the right hon. Gentleman’s party will be represented on that committee so that its voice can be heard. That will be the appropriate time for a full debate on the regulations.

I thank the Minister for his response. When this House voted for section 9 of the Northern Ireland (Executive Formation etc) Act, it was argued that Parliament had the right to legislate on abortion in Northern Ireland in the absence of a functioning Assembly. However, that Assembly has now been restored for almost five months, so it is absolutely not the right way forward for Parliament to vote on the regulations. That point is greatly strengthened by the fact that not only has the Assembly been restored, but on Tuesday this week it voted in a motion by an absolute majority to reject these unamendable regulations. An absolute majority of the Assembly of 90 Members voted to reject them. The will of the people of Northern Ireland has spoken.

The Government have said that their hands are tied because the law is clear: they must bring the regulations forward for a vote in Northern Ireland. However, having taken legal advice at the highest level, I discovered that the law is not at all clear on that. There is actually as good a legal argument that the Government are under no such obligation. In that regard, I note the submissions of huge importance to the Secondary Legislation Scrutiny Committee from two QCs who also argue that the Secretary of State is under no obligation to press the regulations to a vote. To do so will fundamentally breach the devolution settlement and cause a constitutional predicament of the Government’s own making.

The Secretary of State would also be well advised not to bring the regulations to a vote because they sanction abortion for non-fatal disability up to birth, something that around 75 Members of the Assembly this week voted against. It is unthinkable that the Government should present such a discriminatory provision, which was not even required by CEDAW.

As Heidi Crowter, the very powerful disability rights campaigner with Down’s syndrome has said:

I recognise that this is an issue on which the right hon. Gentleman and his party, as well as many others in Northern Ireland, have deeply held views, and I know that it is an extremely sensitive issue that many across the House have a deep interest in. I do not intend to rehearse matters of detail that we will rightly address in the Committee that has been convened to scrutinise the legislation.

The Government were placed under a statutory duty to deliver abortion law for Northern Ireland by implementing the recommendations of the CEDAW report. That duty came into effect, given that the Executive was not restored by 21 October 2019. That followed many months, if not years, of the issues receiving ongoing attention at Westminster on human rights grounds, including parliamentary questions, Committee inquiries, amendments to other legislation requiring the Government to report, and so on, leading to this particular amendment being voted through with a significant majority.

The statutory duty in section 9 of the EF Act did not fall away with the restoration of the Executive, nor with the making of the initial regulations that came into force on 31 March 2020. That is why we have had to re-lay the new regulations. Even if the regulations had not been approved by Parliament in time, or the deadline had not been met, the Government would still be under a statutory duty to introduce new regulations.

We have always been clear, when we consulted on this, that the consultation was about how we would deliver an abortion framework for Northern Ireland in line with the statutory duty that Parliament placed the Government under. It was not on whether the Secretary of State should be exercising this duty in the first place. That matter was decided by this sovereign Parliament. We think that, following the consultation and the publication of the Government’s response to that consultation, we have struck the appropriate balance in providing a framework that can be effectively commissioned in Northern Ireland and meet the needs of women and girls, as well as providing certainty and clarity for the medical professionals providing the service. We have always been clear that, in doing so, we would be respectful of the restored devolved institutions.

We hope that the regulations provide a solid framework for abortion services to be provided within Northern Ireland, although I appreciate that this remains a devolved issue and the Assembly can amend the regulations in future, subject to the usual Assembly and other procedures, including compliance with the European convention on human rights. Repealing section 9, which I know some in the right hon. Gentleman’s party have asked for, has never been a viable solution. This would have required primary legislation before Westminster, which would have been subject to a free vote on grounds of conscience, but we would still have a legal obligation to propose an alternative human rights-compliant model by 31 March to ensure we complied with convention rights.

Progressing these regulations now that Stormont has returned and following Tuesday’s decision there would show a profound lack of respect for the people of Northern Ireland and their elected representatives, and the rushed manner in which they were proceeded with here has thrown up deep flaws. Sex-selective abortion is not lawful here. It has been described by the Government here as abhorrent, yet the Northern Ireland regulations allow abortion for any reason up to 12 weeks, with no prohibition on sex-selective abortions. It is now possible to tell the sex of an unborn child between seven and 10 weeks. Women could even travel here from Northern Ireland for a sex-selective abortion. Does the Minister think this Parliament really intended this, and does it not show why these rushed regulations should be scrapped and the issue properly returned to Stormont?

I respect the strength of feeling that my hon. Friend has always deployed on this issue. The UK Government take the issue of sex-selective abortions very seriously. They publish an annual analysis on the male to female birth ratio for England and Wales to see if there is any evidence for this. The most recent analysis was published in October 2019, and it found no evidence that sex-selective abortions are occurring in Great Britain. The regulations for Northern Ireland do not make any reference to sex-selective abortion and they follow the same approach as the UK on this issue.

This urgent question this morning is on an extremely sensitive subject—perhaps the most sensitive of subjects that we as legislators can debate—and I, as the Minister has done, acknowledge the strength of feeling already expressed today and earlier this week in Stormont. But the task now for Westminster is implementing a law that already stands. In 2019, this place passed the Northern Ireland (Executive Formation etc) Act, which has taken legal effect. Abortion is now legal in Northern Ireland, and women there are entitled to the same rights and services as women in all other parts of the United Kingdom. We are now tasked with implementing the regulations setting out the legal framework that will bring Northern Ireland into line with the rest of the UK.

Although abortion is legal in Northern Ireland today, there is limited provision available and more needs to be done to get a full service up and running, so will the Minister commit to working with the Department of Health in Northern Ireland to ensure the full implementation of services as set out in the legal framework and to fulfil the UK’s international human rights obligations? As he has said, that responsibility remains with the Secretary of State for Northern Ireland.

Labour supported the recommendations of the United Nations convention on the elimination of all forms of discrimination against women—CEDAW—and we are supportive of the regulations to be debated on Monday that provide safe, legal and accessible abortion services to women in Northern Ireland. We heard last year that the CEDAW report deemed that abortion law in Northern Ireland created a “grave and systematic” violation of rights, and in our own Supreme Court in 2018, the position was deemed untenable. It was seen to be treating women like vehicles and was found to be incompatible with article 8 of the European convention on human rights. We cannot pick and choose which parts of CEDAW or our international human rights obligations we do or do not like, and CEDAW explicitly recommended legislation on severe foetal impairment. That is not today’s debate, however.

I am grateful to the shadow Secretary of State for setting out the position so clearly from the perspective of the Labour party. I recognise that it is a responsibility of the United Kingdom Government to deliver on our international human rights obligations. She is absolutely right in that respect. With regard to implementation, clearly this is now a responsibility for the Department of Health in Northern Ireland, and it is something on which we have written to that Department. We have written to other Departments that have responsibilities in this regard to ensure that the full detail of what was recommended in the CEDAW report is addressed, and the details of that are set out in the Government’s response to the consultation.

In terms of timelines, we all recognise that there have been additional pressures placed on services, and health services in particular, by the covid situation, so while it is the case that the full range of services are not available in Northern Ireland, we will continue to fund and support the travel for those—hopefully very few—women who will need to travel to the rest of the UK for terminations. The hon. Lady is right to say that we have an ongoing responsibility on this, and we will engage with that. We will continue to engage with the Department of Health to ensure that the full provisions are delivered on.

I thank the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) for bringing this urgent question. Although I agree with him on most things, he will know that this is not one of them. My views have been founded on the experiences I had when meeting women in particular in Northern Ireland and the experiences that they had to go through in order for the law to be changed. We had to work very hard in this Chamber to get the law changed, but it has been changed. I would respectfully mention that it was not just a question of the Assembly and the Executive not being formed in Northern Ireland; it was also a question of treaty obligations not being followed, and it was the role of Parliament to ensure that they were followed. Regardless, I want to ask the Minister this question. I appreciate his saying that we will follow the law, but will he put more pressure than just written pressure on the Department of Health? There are women beyond the 10-week gestation period who are getting no service provision at all, and that means that the law that we in this place moved to an Act is not being followed. That surely cannot be right.

I recognise the strength of feeling that my hon. Friend expresses, and his experience of meeting directly with some of the women affected by this. As part of the consultation process, I have also met some of those people, and their stories are in many cases harrowing, so he makes a powerful case. Absolutely, yes, we will continue not just to write to the Department of Health but to provide all the support that we can in getting it to implement this. It is important to recognise that this law is already in force and in effect, but this House will debate it in Committee in the coming week, and I hope that it will then be absolutely clear that the House fully supports these regulations and wants to see them observed. That in itself will send a message to the Executive.

Could the Minister of State further outline the reasoning behind the refusal to repeal the Act and instead allow the Northern Ireland Assembly to take the reins? Before the initial vote in this place, Ministers and Members underlined that this should be a devolved matter but that if the Assembly had not reconvened, Westminster would step in. Now that the Assembly is convened, this week the people of Northern Ireland have spoken through their elected representatives, and they have spoken in a largely ignored consultation process. Now we are speaking about this again in this House. Will the Minister revert to the democratically approved method? Let the Northern Ireland representatives and the people of Northern Ireland decide. That is really where it should be done—not here.

I have great sympathy for where the hon. Gentleman is coming from, in terms of the fact that the Assembly should have decided on this issue some time ago. It was a responsibility incumbent on the Assembly before it broke up to address this issue in a way that would satisfy our human rights obligations. Unfortunately, it did not, and to date it has still not agreed a way forward on this issue. As he will know, the legislation passed by this House set a deadline of 21 October for the Assembly to be back in place, beyond which the responsibility to legislate was placed on to this House, and that is the law by which we are bound.

With regard to the suggestion that the hon. Gentleman and others have made to simply repeal section 9 of the Act, that would not excise from the Government its wider human rights obligations or the responsibility of this House to deliver on our human rights commitments. We would still have a responsibility to deliver on this, unless the Northern Ireland Assembly had taken it upon itself to do so. I would point out that the Northern Ireland Assembly can reform and take forward these regulations, so long as it does so in a way that is compliant with our human rights obligations and CEDAW.

It is worth saying that these regulations do reflect the very sensitive situation in Northern Ireland on conscientious objection and the locations that abortions can be performed in. I support the Minister of State in saying that we did give an option, at every stage since the Act was passed last year, for politicians to get back into power and shape these reforms. I urge him to keep pushing forward and have the best interests of women and girls at the forefront of his mind.

My right hon. Friend is absolutely right that we have to keep the best interests of women and girls at the forefront of our minds throughout this process. He is also right about the sensitivity with which we have approached this process. I should perhaps thank him for the fact that I am here at the Dispatch Box, as he was the person who gave me responsibility for this. Throughout the process, he has shown extreme sensitivity to the concerns of women and girls in Northern Ireland and the deeply held views on both sides of the debate. It is absolutely right that we should do that.

The Northern Ireland Assembly has expressed a view, with a clear majority not supporting the proposed regulations on abortion. For another legislature to impose these abortion regulations cuts right across the Assembly and the principles set out in the Good Friday agreement and shows an imperialist contempt for devolution. It is time for real pragmatism. It is not beyond the wit of this House to be respectful of the devolution deal and to enable the Northern Ireland Assembly to move this legislation forward. Why will the Minister not do that?

As I made clear in my response to the hon. Member for Strangford (Jim Shannon), the Northern Ireland Assembly can take this issue forward, but it needs to do so on a basis that is CEDAW compliant and consistent with our human rights obligations. This House does have a standing in that respect, to ensure that we live up to those human rights obligations. Many of the hon. Lady’s colleagues have recognised that and supported the legislation, which required us to take further action. It is important that we move forward in a way that is respectful of the devolved settlement but also recognises our fundamental commitment to human rights, including the rights of women and girls.

I was under the impression that these regulations were no more liberal than those in the rest of Great Britain. I am a bit worried by some of the questioning, which might imply they are not. Can my hon. Friend reassure me that the regulations will simply be a reflection of what is happening in England, Scotland and Wales?

My hon. and gallant Friend makes a very important point. I direct him to the Government’s detailed response to the consultation, in which we set out the importance of using the legal basis that has been established in England, Scotland, Wales for this process and ensuring that we stick to it as closely as possible, particularly on issues such as conscientious objection. There is a fundamental difference in how the regulations have had to be built up because of the way the EF Act repealed the illegality of abortion before putting in place the new framework. Whereas the Abortion Act 1967 works on the basis that abortion is illegal unless carried out under that Act, in Northern Ireland we have had to build up a framework and then say that everything outside that framework is illegal. That is the reason for the main differences between this and the framework in England and Wales. However, our approach throughout the design of this framework is to ensure that the outcomes are as consistent as possible.