Relevant document: 59th Report from the Delegated Powers Committee
Amendment 1 not moved.
Clause 3: Progress reports
2: Clause 3, page 2, line 19, at end insert “, which shall be considered by each House of Parliament in accordance with subsection (2A).”
My Lords, I shall speak to Amendments 2 and 3 but I do not intend to press Amendment 2, which on reflection adds nothing of substance to Amendment 3. These amendments, which are identical to those moved with cross-party support in Committee, provide that Parliament is to sit at specified intervals between September and, at the latest, December to consider the progress reports already provided for by Clause 3.
Amendment 3 serves a useful purpose in the context of this important Bill. As pressure is exerted to reconvene the Executive, there is every reason for both Houses of this Parliament to review and interrogate such progress as is made. The strong interest of this House in the content of those reports is demonstrated by the amendments agreed on Monday and by those which are yet to be considered today. But the greater significance of Amendment 3 lies less in the subject matter of the debates for which it provides than in the more fundamental fact that Parliament must be in session for such debates to take place.
If enacted, these amendments will express Parliament’s expectation of being consulted on not just these reports but an even more pressing political issue: the future of our relationship with the European Union. If Parliament were to endorse a no-deal Brexit, as it has not done to date, then from my point of view there could be no democratic argument against it. But for that decision to be left to our next Prime Minister, elevated to that office by members of his own party and freed of any requirement to obtain the consent of Parliament, would be another matter altogether. Before the beginning of the current leadership campaign, the notion that Prorogation might be used for the express purpose of silencing Parliament on Brexit could safely have been dismissed as fantasy but, extraordinary though it may seem, that prospect has not been disavowed by the leading candidate and, if reports are to be believed, cannot even now be ruled out.
The situation is uniquely grave because if we are driven over the cliff on 31 October, there is no way back up. An event that occurs while Parliament is prorogued cannot simply be reversed once Parliament is sitting again. So even a short Prorogation, if suitably timed, would permanently deprive Parliament of its voice on this most significant of political issues. Advice to Her Majesty to prorogue Parliament in such circumstances would subvert the principle that the Government are accountable to Parliament and present the monarchy with a highly unwelcome dilemma: no one could safely predict the possible consequences. It is not surprising, therefore, that the Attorney-General is reported to have told Cabinet last month that Prorogation would be unconstitutional and improper. My noble friend Lord Pannick, who cannot be in his place today, described it on Monday as “unlawful” and “a constitutional outrage”.
The legal effects of Amendment 3 will no doubt depend on the circumstances. It would be a matter for any court that may be called on to consider the matter. Others of your Lordships are better placed to judge their political force, but that too would surely be substantial. The Minister helpfully accepted on Monday that it was right and proper for this House to find a means to hold the future leader of this country to account, but when challenged on his statement that,
“there are other means by which it can be done”,—[Official Report, 15/7/19; col. 38.]
explanation came there none. That put me in mind of Iris Murdoch, who wrote, in a rather different context, that we can pass,
“in a second from the time when it was too early to struggle to the time when it was too late to struggle”.
Your Lordships now have an opportunity to assert the necessary role of Parliament in these strange and alarming times. I invite your Lordships to do so by supporting Amendment 3.
I shall speak very briefly to Amendment 3A in this group, which is in my name. It might be for the convenience of the House if I say that it is not my intention to move this amendment, largely because it does not add substantially to the amendment in the name of the noble Lord who just spoke with great eloquence. Suffice it to say that I very much support his amendment and if he is minded to test the opinion of the House, I shall vote in favour of it.
My Lords, I think everybody agrees that this is a very curious device and in many ways a very curious amendment. I am sure that the House of Commons and your Lordships’ House will look forward to receiving regular reports about the situation in respect of Northern Ireland; it might help move things forward very marginally. However, as the noble Lord, Lord Anderson, said, that is not why this amendment is being proposed. The amendment is considered necessary by him and me only because we face the constitutional outrage of a potential Prime Minister refusing to rule out proroguing Parliament to get through the most major public policy decision of our lifetimes without debate, because he knows he cannot win a vote in a debate. This is the activity of a banana republic, not the mother of parliaments; we should do whatever we can, however strange, to stop it. This is a clever, ingenious device with that in mind, and it has our full support.
My Lords, I too support this amendment, in the context of the European dimension, which has been mentioned. It would indeed be outrageous if Parliament were not sitting when the clock is running down to 31 October. Whichever side of the referendum debate we were on, we well remember the arguments about bringing power back to this place. If this device of not allowing Parliament to sit at a crucial time is used, it would fly in the face of the assurances and pleas made at that time. We face an extremely difficult time: surely, we should be sorting this issue out within Parliament and not leaving it to others to seek remedy in the courts.
My Lords, it seems to me that it does not matter whether one supports leaving the European Union permanently or remaining in the European Union. That is not the issue before the House. The issue is whether Parliament should be allowed a say on whether we leave by crashing out, leave with a deal or do not leave. It does not, in a sense, matter which of those three situations it is. What matters is that Parliament has a voice. For that reason, I support this amendment.
My Lords, they say that Brexit drives people crazy and I think there is something in this. It certainly makes people cerebral. May I put forward a few general points? First, it has been said that Her Majesty might be embarrassed by such a request. Her Majesty has been on the Throne for 70 years or so and faced many a constitutional crisis. I think she would survive.
Secondly, be careful what you wish for. Suppose we pass this amendment requiring Parliament to meet in October. It is not for the benefit of Northern Ireland. I feel rather sorry for the people of Northern Ireland, who are being used as a sort of wedge in a door—not for their benefit. Suppose there is a general election in the meantime. Suppose there is a vote of no confidence in the Commons. Is it seriously considered that requiring Parliament to meet in October would take precedence over these other events, which may very well occur in the next few weeks? If there is a general election before October, what will happen to the will of some that Parliament should meet in the run-up to the possible leaving of the European Union? If there is a vote of no confidence, the same thing might well happen.
It seems to me that the constitution is not clear on what motives have to lie behind the call for a general election, the call for a vote of no confidence or the Prorogation of Parliament. It is a somewhat ambiguous area. The speculation about this has led people to believe that it is better placed in the hands of the judges than of politicians. That may well be. I am not disputing for a moment that the rule of law is upheld by judicial review and allowing judges to decide. However, where an issue is as ambiguous as this, noble Lords should realise what they are doing in putting these decisions in the hands of judges, who might very well be summoned to meet in a great hurry; the issue would then be rushed all the way through the courts. We would be leaving it to judicial wisdom.
A great deal may happen between now and the end of October. It worries me that we should be using parliamentary procedure in this way. It would be an unfortunate precedent. As I said, think about Motions of no confidence; think about a general election and the assumption, so readily made, that the notion of Prorogation would be a terrible breach with everything that has ever happened in the 1,000-year constitution of this country.
Moreover, the action of judicial review, which is already being talked about in this House—somewhat prematurely—will depend on one wealthy individual bringing that action. Suppose there is a vote of no confidence and by some method the Queen is advised that Mr Corbyn should be summoned to form a Government. Unfortunately, I cannot afford the services of my noble friend Lord Pannick, but I am sure there are those among us and in the country who would say that the possibility of a Prime Minister widely regarded as an anti-Semite was a constitutional outrage and must be judicially reviewed.
I beg noble Lords to consider what sort of precedent might be set by using the people of Northern Ireland, speculating on what might happen with judicial review and not allowing the normal course of events to continue. To support this amendment will have repercussions way beyond what we might expect this afternoon.
My Lords, the noble Baroness, Lady Deech, reads far too much into this simple amendment, which is unambiguous and makes the point that power should rest not with the Executive but with Parliament. It would require Ministers to report on a Bill’s progress where progress is essential, such as with this Bill. Of course, most importantly, we should not give the Prime Minister of a minority Government, whoever he may be—let us all, particularly those of us on this side of the House, recognise that we are talking about the Prime Minister of a minority Government—the opportunity to suspend our constitutional proprieties.
I should like to make another point. I deplore the fact that the rules of my party have allowed this decision to be protracted over almost five weeks and to be taken by 0.3% of the electorate, a number of whom are 15 years of age; they are entirely eligible to vote, as I established earlier today. Many people do not realise that; I did not realise it myself until two or three days ago. The party in the country has had great power—way beyond what any party should have, particularly when it represents such a tiny percentage of the electorate. I believe that the real constitutional impropriety that the noble Lord, Lord Anderson, seeks to deal with is that of conferring on the Prime Minister of a minority Government—I repeat: a minority Government—the powers to dispense with the services of Parliament and to absolve himself of being answerable to it. As I said on Monday, the Government are answerable to Parliament, which must never be the creature or subject of government. This is a safeguard. We should support it.
My noble friend Lady Deech would have made a marvellous Permanent Secretary. We heard about a dangerous precedent, unripe time and the risk of judicial review. I cannot see that risk; the amendment moved by the noble Lord, Lord Anderson, seems designed to reduce the risk of a situation that might go to judicial review arising.
I support the noble Lord’s amendment. As he said, it is strange and alarming that we should find ourselves in this situation, having to resort to a device to prevent a constitutional outrage—which it would be if Parliament were sent away so that the Prime Minister of the day could follow a course that both Houses of Parliament have consistently and regularly rejected.
To add one more point, I hope that the noble Baroness the Leader—I am sorry she is not in her place—is pursuing with the other place the proposal that we in this House put forward a fortnight ago for a Joint Committee to examine the costs and implications of a no-deal crash-out. In this House, the Leader represents not just the Government but all of us. We put forward the proposal but, to my knowledge, the other place has not yet done us the courtesy of even considering it. I hope that the noble Baroness is advancing our proposal and urging the other place to respond positively to it. I support the amendment.
My Lords, I spoke against these amendments in Committee, and will not repeat all my arguments. But there are four strands in why I believe that these amendments are unwise and unwanted. Before proceeding, I say to the noble Lord, Lord Anderson —who, again, introduced his amendment with great courtesy, charm and skill—that, on a point of fact, 16 out of 23 Prime Ministers of this country have first come to office without a general election, as a result of actions within their own party and within Parliament, including, I say for the benefit of the Liberals, David Lloyd George.
The idea, therefore, that the next Prime Minister would somehow be constitutionally dubious—a proposition that has been advanced by the noble Lord, Lord Cormack—is, frankly, absurd.
The noble Lord also said other things, which the Hansard writers will record, including his saying that somehow a power was being conferred on Mr Johnson to do something that Mr Johnson has never said he would do, which is to advise the monarch to prorogue. That has been an inherent right of the Prime Minister and of the Crown for generations. It is an absurd statement, I am afraid, by my noble friend.
The first reason that these amendments should be resisted is, of course, one that I share but most of your Lordships will not: they are clearly designed to frustrate one route to Brexit on 31 October. That is freely admitted by all concerned. I can see that that is not a clinching argument with many of your Lordships, and, if we have learned anything in this House, it is that there is a dialogue of the deaf in this place between the remainer majority who wish to stop at nothing to prevent Brexit and those of us in the minority who believe that the vote of the public should be respected.
I fear that your Lordships’ House is getting itself into a worse and worse place in resisting Brexit. The very future of your Lordships’ House is now in play. That was made clear, not by me, but in the recent campaign for the European elections. I think these amendments take us to the outer fringe of where an unelected House should go.
The second strand of why I think they should be rejected is this canard of “constitutional outrage”, et cetera. This is an Aunt Sally. Mr Johnson—its target—has never said that he would use Prorogation to secure Brexit on 31 October. This danger, this threat, this crisis, this calamity, this catastrophe, this outrage—it is all got up by the remainers.
What the noble Lord says is clearly true, and I do not dispute it. However, Mr Johnson has been invited on a number of occasions to say specifically, in terms, that he would not use that device, and he has declined to do so. Would the noble Lord agree that that is the case?
Outrageous? Let us be grown-up here. Everybody understands the purport of the remark. Mr Johnson does not wish to prorogue Parliament. He has not said so, and he does not need to, because, following the Gina Miller case, there has been an Act of Parliament, passed by this Parliament, in this Session, requiring the UK by statute to leave the EU, as requested by the British people, on 31 October. It is simply rubbish to say that there might be an attempt stop Parliament legislating on Brexit. Parliament has already legislated, and talk about a so-called unlawful shutdown of Parliament or hyperbole about a ban on Parliament sitting reflects nothing Mr Johnson has ever said. It is so much chaff thrown up by the ditchers among the more extreme referendum deniers.
If Parliament wishes to stop Brexit, the route is open: a vote of no confidence in the Government, and the installation of a new Government. That new Government can turn to the British people and say, as I often hear people say in this House, “Sorry, 17.4 million, you are stupid, you did not know what you were voting for, you do not understand the facts as we clever people do, so, sorry, Brexit is off”. If you want to change the policy and say that and do that to the British people, change the Government. That is the proper way to proceed.
It is indicative of the state of the Labour Party—the consistent deliverer, as I said the other day, of 220 votes in Division after Division in the other place—that instead of taking that open and honest course, challenging the Government in a vote of no confidence, it footles around in the small print of a Northern Ireland Bill, shuffling courageously sideways under the genial cloak provided by the noble Lord, Lord Anderson, and into the arms of the Liberal Democrats, who, given half a chance, would snuff Labour out.
I would like to make two points. First, I voted for Brexit, not for a no-deal Brexit, and that must be true for a lot of other people. Can the noble Lord please stop dividing us into these two camps? Secondly—I am sure that this is unparliamentary—I cannot see the point of what the noble Lord is saying. He is ranging so far across this debate that he is losing sight of the very simple amendment before us, and he is not taking the House with him. I can think only that he is doing this for the newspapers or for—I do not know; do we have constituents?
My Lords, I admitted at the outset that I am unlikely to take this House with me. However, there are certain things that someone who has the privilege, right and duty to be in Parliament and come to this place has the right and duty to say. While I may be saying things that are not congenial to many in this House, they are not disagreed with by some people in this country.
It is germane to point out certain facts about the Labour Party—a party that will campaign to remain in any election or referendum provoked by a Conservative Government, but which will campaign to leave in the unlikely event that it ever forms a Government. Brexit on Monday, remain on Tuesday, Brexit on Wednesday, will not say on Thursday, does not have a clue on Friday—that is the official policy of that apology of an Opposition on this great question of our times.
The third strand of my argument against this amendment is that by floating claims that only use of the royal prerogative could secure Brexit and that Mr Johnson wants to do that, it is not him but the peddlers of that canard who risk dragging the monarchy into political controversy. Prorogation is perfectly normal after a Session so long, a new gracious Speech is normal, with the formation of a new ministry, and, heaven knows, we can surely do better than the ragbag of legislation and off home before dinner that has been the staple of both Houses lately. At some point, a new Prime Minister must be able to seek a Prorogation and a gracious Speech. That is the right and proper routine of our parliamentary life, and why should Mr Johnson be asked to deny himself that right? It does no service to that incontestable fact to besmirch the act of Prorogation as if it was some kind of shabby and little-known political manoeuvre. All of us, on every side of the argument, have a duty to show restraint in relation to the role of the Crown. As I said in Committee, I cannot conceive how the courts could, or wisely should, construe the motive for the advice given by a Prime Minister to a Sovereign in a private audience. I would rather we did not go there. We have the right to do many things in life, but we have the duty to ask ourselves sometimes, “Is it wise?”.
Here is the fourth and final strand of why I object to these amendments—the noble Lord, Lord Kilclooney, put his finger on it on Monday. What on earth are we doing here, discussing all this on a Bill that relates narrowly to the future of the Northern Ireland Executive? Only last week Your Lordships’ Constitution Committee, to which I have the honour to belong, restated our concern—we all assented to the report, including the noble Lord, Lord Pannick, who is not in his place—about the persistent fast-tracking of legislation on Northern Ireland. Yet here we are, not only fast-tracking a Northern Ireland Bill but trying to festoon it like a Christmas tree with barely related measures which have never properly been considered. That is a bad way to treat Parliament—
May I put to my noble friend some alternatives to his four points? This amendment is not about stopping Brexit but about preventing the use of Parliament to force through a means of Brexit which has been expressly rejected by this House and which has no democratic mandate. If our future leaders have refused to rule out doing that, this is something which we in this House are faced with having to do, reluctantly. Prorogation is normal in Parliament, but will my noble friend recognise the difference between Prorogation in order to force through something that has been expressly rejected by Parliament rather than the normal means?
I did not count how many words there were in her conditional thing about “expressly used to force through something that has been rejected by Parliament, blah blah blah”, if I may say so, with respect. That is a construct that was created, and we have heard it from the noble Lord, Lord Pannick. It is not possible to construe what the motive of a Prime Minister in a private audience might be for seeking a Prorogation. I do not think we should ask the courts to do that, although we have the right to do so. On her other point, we have statute. This is not about stopping Parliament legislating. I tried to make this point earlier: after the Gina Miller case, Parliament legislated. We are leaving the European Union, and in law we are leaving on 31 October. I am afraid her arguments do not stand up.
I want to finish, and that will please noble Lords. I believe it is a bad way to treat Parliament to festoon a fast-tracked Bill with extraneous matters such as this. In my submission, it is a particularly insulting way, in this case, to treat the good people of Northern Ireland. They deserve far better than having their future provision made the plaything of others with other axes to grind. This is a Bill about the formation of a Northern Ireland Executive, which we all very much wish to see. We should return to that.
Amendments such as those before us were rejected in the House of Commons. Elected Members have had their say on this matter. Are your Lordships really going to reopen all this and slug it out on this Bill—this Northern Ireland Bill—day after day on a fast track in an undignified ping-pong to provide a battlefield for hardline remainers and devoted respecters of the people’s choice? Surely we can do better than that. Let us dispense with this parliamentary chicanery, reject these amendments and deal with the important business relating to Northern Ireland. The Commons rejected the amendments. Let us do the same and move on to the business in the Long Title of the Bill.
My Lords, as I said on Monday, I reject the idea that this amendment does not have an important impact on Northern Ireland too, not only because it ensures that the supervision and reporting provisions that are now in the Bill can be considered constructively by Parliament, but because—and who has forgotten this?—Northern Ireland has been at the centre of all the debates that we have had in this House about Brexit. The possibility that we should be forced to leave without a deal, I would have thought we would all agree, is one that deeply affects the people of Northern Ireland.
I had thought that on this issue we were approaching something like unanimity that it would be constitutionally improper and wrong in principle to suspend Parliament in order to push through the final stages of the Brexit arrangements without Parliament being in a position to oversee, comment on or effectively have any role in that. Those who have said that this would be wrong are not only Cross-Benchers—the noble Lord, Lord Anderson of Ipswich, made it very clear, in an extremely good speech, why that was so—but others on this side of the House, such as the Liberal Democrats, as well as many distinguished Members of the Conservative Party. We all know about Sir John Major’s statement that he would judicially review an attempt to push through Brexit without a deal, and the noble Lord, Lord Howard, has been reported as saying that it would be wrong and a “very bad idea” to suspend Parliament, and I respectfully and fully agree with him.
As I said in the debate on Monday, none of this means that the amendment would stop Brexit taking place. There is, as others continually remind us, existing legislation. What is more, we cannot unilaterally stop our departure on 31 October because, as a matter of international law, unless that is extended by agreement between the EU and ourselves we will leave on that date. But that does not mean that Parliament should not have a role in what takes place. It can change its mind. It can do many things, including change the law. It would be grossly wrong—a perversion of our constitutional traditions—and irresponsible, in my view, to prevent Parliament being able to present, comment, oversee, supervise and, if it so chooses, take other action. That, and nothing else, is what this amendment is about.
Of course, the incoming Prime Minister—let us assume it is Mr Johnson—may wish to proceed without further inconvenience from Parliament. Let him persuade Parliament of that. Let him persuade Parliament that the route he has chosen will succeed. That is what parliamentarians should do and what we should do in a democracy. He cannot and should not adopt a royalist approach, as King Charles did. That is what we are trying to prevent, and so many Members of this House are concerned about that. It is Parliament that safeguards our freedoms and ensures that we remain a free land; that is how we do our democracy. To allow that to be set aside would be wrong.
It is said that Mr Johnson has not said he wants to do this, but he was given a clear invitation from this House on Monday to say clearly that he would not. He was invited to telephone the Minister. I look forward to hearing in his speech, which he will make in a few moments, whether he received such a phone call. I suspect he did not—otherwise we would not still be debating this amendment—but that is the way to deal with that; it could be done. Obviously, I hope Mr Johnson does not intend to suspend Parliament. He has many other ways of making clear to the EU what our future should be, but let us not lock the mother of parliaments out of debate by a procedural device.
I have listened carefully to those who have spoken against this. The noble Lord, Lord True, spoke at length on Monday; I have not heard anything new in his arguments. I listened intently to the noble Baroness, Lady Deech, whom I respect, but I did not hear any argument there that carried the day, as far as I was concerned. Ultimately, she was concerned that there would be an abuse by passing this amendment. I respectfully say to her that the abuse would be if we allowed a situation in which Prorogation could be used for a wrong purpose simply to push through something that Parliament is opposed to.
I therefore hope that noble Lords will support the amendment if the noble Lord, Lord Anderson, decides to divide the House. I hope he will, and if he does we will follow him.
My Lords, we have begun a debate today on the extension of Executive formation opportunities in Northern Ireland. I take the opportunity to return our focus to Northern Ireland for a brief moment. I do so recognising that precious few of the noble Lords who have thus far spoken chose to focus on Northern Ireland today. There have recently become a remarkable number of experts on Northern Ireland, but it appears they are not here during this part of the discussion.
It is no surprise that this is a challenging time for Northern Ireland. It had been our hope that by the coming August we would have secured a resolution and brought the parties together in such a way that an Executive could have been formed. I believe we are moving in the right direction; I now genuinely believe that there are real prospects of doing so.
This Bill has a very simple purpose. As it began its journey, it was simple and in very few paragraphs. We need a little more time, and the ambition is to extend that to 21 October, with a possible extension thereafter into January to allow for that Executive to re-form.
The request for updates on the talks in Northern Ireland is important; I do not doubt that for a moment. The noble and learned Lord, Lord Goldsmith, rightly says that Northern Ireland has been at the centre of so much of Brexit, but I must draw a distinction between Northern Ireland at the centre of Brexit as the border question has played through and the talks themselves. They need to be recognised as being in two different categories, and it is important to do so.
A number of noble Lords—not least the noble Lord, Lord Anderson, who opened the debate—said that this is really not just about the reports. The debate that followed expressly shows that it is not just about those reports. He quoted Iris Murdoch. I am a big fan of Iris Murdoch. I was reading her book not long ago. Thinking about these reports coming in in small doses, there is a quote from The Sea, The Sea:
“One of the secrets of a happy life is continuous small treats”.
Whether these reports will be continuous small treats remains to be seen. My fear is that those reports will not show a great deal because the discussions within that room are not particularly useful for wider debate at this time. But I dearly hope that we do not need this extension and that we will return to normal government in Northern Ireland. But I fear right now that it would be remiss of us as a Government if we did not seek to extend.
The amendments touch on much deeper issues than I am normally called on to talk about. It will not come as a surprise to the noble and learned Lord, Lord Goldsmith, that I have not received a call from Mr Johnson. Who knows? I might receive one next week. Who knows what is going on at this particular moment.
The important thing for me to stress today—and I do not think it is labouring the point—is that we need to be sure that when we speak of Northern Ireland we are clear in the message that we are sending to the people of that Province. The message that we send today with this particular suite of amendments is a simple one, which is that we can use Northern Ireland for different purposes when we choose to do so. I know that the rest of the debate will focus very significantly on the serious issues of Northern Ireland, but we have not started that part yet. This part is about a constitutional question and, as a number of noble Lords have said, it is about Brexit. So be it. I cannot change the motion in which we have moved in this particular direction. But a number of noble Lords have expressed their views on different sides. For me, the key thing is to keep us focused on the important aspect, which is the delivery of an Executive in Northern Ireland. That must be our principal aim. On that basis, I ask the noble Lord to withdraw his amendment.
We all hope that the Minister receives a call next week, whether from Mr Johnson or Mr Hunt. We want to see him back in that place. But does he not agree that for the people of Northern Ireland, whom I know—although maybe not as much as the Minister—because I was Attorney-General for Northern Ireland for six years, the consequences of a no-deal Brexit, which have been widely described as so damaging, would be just as bad for them as for the rest of the United Kingdom?
The aspect of a no-deal Brexit that has been discussed here is an important one and has been discussed on a number of occasions in your Lordships’ House and in the other place. It is important to Northern Ireland: I do not doubt that because I have seen it myself. I recognise and have said on more than one occasion how important it is and how different it would have been had an Executive been in place during this period, when those voices could have been part of a wider debate. There is not a single person who does not regret the fact that those voices have been silent for far too long when we could have had them contributing, not least on the question of the Irish border. But we are talking today about a simple and focused aspect, which is extending the window during which there shall be no elections in order to secure a newly formed Executive. That is the key to the discussions today and should be the focus. I am also very happy to get a call from Mr Hunt.
The important thing to stress now is that at this point, I do not believe that the amendment takes us in the right direction. On that basis, I ask the noble Lord, Lord Anderson, to withdraw his amendment.
I am most grateful to all noble Lords who have spoken and in particular to the Minister for his courteous response, I do not think that we should prolong things by hearing any more from me. The issues are clear. I do not propose to press Amendment 2, but I want to test the opinion of the House on Amendment 3.
Amendment 2 withdrawn.
3: Clause 3, page 2, line 20, leave out subsection (2) and insert—
“(2A) The Secretary of State must make arrangements for—(a) a copy of each report published under subsection (1) to be laid before each House of Parliament by the end of the day on which it is published,(b) a motion in neutral terms, to the effect that the House of Commons has considered the report, to be moved in the House of Commons by a Minister of the Crown, and(c) a motion for the House of Lords to take note of the report to be tabled in the House of Lords and moved by a Minister of the Crown.(2B) The motions required under subsections (2A)(b) and (c) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament.”
Amendment 3A (to Amendment 3) not moved.
4: Clause 3, page 3, line 32, at end insert—
“( ) The report under subsection (1) must include a report to be published on or before 4 September 2019 on progress on the arrangements for appointing independent guardians under section 21 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. The report must cover—(a) the number of children for whom an independent guardian has been appointed—(i) for whom a reference has been made to a competent authority for a determination as to whether the child is a victim of trafficking in human beings; and(ii) who have been determined to be a separated child by the Regional Health and Social Care Board;(b) the immigration status of the children for whom an independent guardian has been appointed;(c) the length of time for which an independent guardian assists, represents and supports a child; (d) the number of persons for whom an independent guardian has continued to act in relation to a person after that person attains the age of 18 but is under the age of 21, with the consent of that person, according to section 21(10) of that Act;(e) the processes established to ensure relevant persons or bodies recognise and pay due regard to the functions of the independent guardian and provide the independent guardian with access to relevant information in accordance with section 21(8) of that Act and the effectiveness of those processes.”
My Lords, in moving Amendment 4 I will speak also to Amendment 10, which is consequential upon it. I declare my interests as in the register, which include my position as co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery.
There is a good Northern Ireland Act on modern slavery, human trafficking and exploitation, but it does not include one aspect of the Modern Slavery Act 2015: that is, the child trafficking advocate, popularly called the independent guardian. It seems an odd omission because, following the research done by Bedfordshire University, the Government accepted that the independent child trafficking advocates are doing a good job. A number of pilot schemes are out across England and Wales—there is a similar system in Scotland —and the Government are committed to putting this right across the country in due course. So it is highly desirable and seems entirely uncontroversial that there should be similar independent guardians to look after those children brought into Northern Ireland from abroad, who have been slaves and who need the support of a mentor as they go through a process equivalent to the NRM and through the general process of coping with having been a slave and having emerged from that.
Having had a discussion with the Minister, I understand that there are some practical difficulties in Northern Ireland with a lack of guardians. The short answer to that, it seems to me, is that more guardians should be appointed. I do not wish to embarrass either the Northern Ireland or the United Kingdom Government by pressing this amendment to a vote, but I do ask the Minister to keep this under review and see that, as soon as the Executive and Assembly are up and running—which I am sure we in this House all hope will be relatively soon after this very long gap—we will have more guardians, who should become part of the system in Northern Ireland. I beg to move.
My Lords, I would like to make some brief comments on this modest amendment. It provides an excellent companion report to that already required by the Bill regarding the support offered to victims of human trafficking in Northern Ireland, after they have been confirmed to be a victim by the national referral mechanism known as the NRM. I look forward to the report that will be produced on the progress made to implement the provision enabling extended support, and the debate that will, of course, follow as a result.
Similarly, I support Amendments 4 and 10 because here also there is much that could be learned for England and Wales from examining the independent guardian service in Northern Ireland. This service is designed to provide separated migrant children and children who have been trafficked with someone who will support, advocate for, represent and accompany them as they try to find their place in our communities while dealing with complex immigration processes, unfamiliar schooling and child protection systems, as well as, sometimes, police investigations.
Northern Ireland is ahead of England and Wales here, in that Section 21 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 that provides independent guardians is in force, with a duty for such support to be provided across the whole of Northern Ireland. Regrettably, in England and Wales, the equivalent section of the Modern Slavery Act 2015 regarding the similarly named independent child trafficking advocates has not yet commenced, and support is available thus far in only one-third of local authorities.
However, at present there is no published assessment on the implementation of the legislation on independent guardians in Northern Ireland, or on whether all the necessary powers or resources are in place for the role to be effective. I believe that that would be very useful for professionals in Northern Ireland, and for what can be learned in the rest of the UK, especially with regard to those aspects which go beyond what is provided in England and Wales, such as support beyond the age of 18.
I hope that the Minister shares my perspective and will join me and the noble and learned Baroness, Lady Butler-Sloss, in supporting these amendments. They will provide information that will have a positive impact on the support provided to child victims of trafficking in Northern Ireland and in England and Wales.
My Lords, I will comment briefly on this issue. It is a very important one, but there are some difficulties. Before I get on to those, I hope that the noble Lord will support my amendment later this evening about unaccompanied child refugees in Northern Ireland. At the moment, because Stormont is not in action, it is impossible for unaccompanied child refugees to be referred to Northern Ireland, although I know the very hospitable people there would like to see this happen. There is a blockage at the moment because of the impasse at Stormont.
Having said that, I will turn to the substance of the argument about guardians. I talk not only about young people who have been trafficked and exploited but about child refugees generally. The idea of a guardian is a good one, because these people face a whole range of issues, having gone through appalling experiences, and nobody is there to pull everything together. Social workers may do some of this, but the range of issues is wider than might be susceptible to social worker intervention. That is where guardians come in, who take a holistic approach to the needs of the individual young person and can then intervene, help and mobilise other agencies. So I think it is a good idea.
The difficulty is this. As I understand it, there are some guardians in Northern Ireland and some in Scotland. They tend to be social workers with at least five years’ professional experience. These people are pretty hard to come by. I have talked to local authority leaders in London, who say they would love to do this, but they do not have enough qualified social workers with the right experience to take on that responsibility. I am aware of the difficulty. It is a good idea. If we can find a way of dealing with resourcing difficulties, fine. We could start with young people about whom there is evidence that they have been trafficked or exploited more than most child refugees. I would like the Minister to be positive about child refugees in Northern Ireland generally later on.
My Lords, this is an example of the fact that a number of things which would normally be dealt with by the Executive have become sufficiently urgent to be considered. This seems to be a sensible idea—and, as I understand it, the Minister is going to produce appropriate warm words.
My Lords, I thank the noble and learned Baroness, Lady Butler-Sloss, for her brief introduction, and other noble Lords for their remarks, particularly the noble Lord, Lord Dubs.
Ensuring that victims of human trafficking receive the support and care they require is an important issue, which this Government take seriously. It is important that the right safeguards and checks are in place to protect this group of people. This is also true in Northern Ireland, where independent guardians must be qualified social workers with at least five years’ post-qualifying experience of working with children and families, as the noble Lord, Lord Dubs, said. Our approach in this space needs to be guided by the principle of ensuring that we do not expose these vulnerable people, or the excellent individuals who care for them, to harm.
As I said in Committee, noble Lords will be aware that these are matters for which responsibility in Northern Ireland has been devolved, therefore falling outside the responsibilities and scope of the Secretary of State for Northern Ireland. In line with the principles of devolution, it is the Government’s view that those Northern Ireland departments charged with responsibility for these matters should be accountable not to Westminster but to the Northern Ireland Assembly. However, the Government acknowledge that if it is the will of Parliament that the Secretary of State should report on these issues, the Northern Ireland Office will engage with relevant Northern Ireland departments to ensure that she is able to do so, as far as possible, in a meaningful way, where information is available. I hope this provides a degree of reassurance for the noble and learned Baroness.
I also wish to advise on the limitations of the Secretary of State’s capacity to report comprehensively on matters of devolved competence, and to emphasise that it may not always be possible to make available the required information. We must approach these issues carefully, and with heightened sensitivity. Releasing information in relation to the number of children supported by an independent guardian could, given the very small number of individuals involved, compromise their identities. Clearly, this is not the intention of this amendment, but it is a risk we must be aware of and mitigate.
We can accept Amendment 4, on the introduction of a requirement to report on the work of independent guardians in Northern Ireland for victims of human trafficking, noting, as I said, the need to approach sensitively. We should not cut across devolved powers but, given the importance of this issue, it is reasonable for the Secretary of State to provide a report to Parliament. However, I ask the noble Lord not to press Amendment 10, on debating the report. I am happy to meet the noble and learned Baroness or the noble Lord to discuss the report when it is published. It would be most unusual for obligations to debate reports to be placed on the Government by primary legislation. As this is a devolved matter, I am happy to facilitate a meeting between the noble and learned Baroness and Northern Ireland’s Department of Health for a detailed discussion of its work in this area, as its staff are the experts in this devolved work. Based on that explanation and commitment, I hope the noble Lord and the noble and learned Baroness will feel unable to put this to a vote.
I am very grateful to those who have spoken in this short debate, and to the Minister, who I spoke to briefly before we started. I entirely understand the issues he has raised. As I said in opening, I do not intend to divide the House on this issue. I am, however, concerned that a system of child trafficking advocates in this country is working well and will eventually come straight across the country, and the Government are committed to that. Consequently, it would be highly desirable for there to be enough guardians in Northern Ireland for this to be provided for those children who are as vulnerable in Northern Ireland as they are in this country. However, having had assurances, together with the generous offer to discuss this with the Minister and the Minister for Health, which I and the noble Lord, Lord McColl, will be glad to take up, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
5: Clause 3, page 4, line 2, at end insert—
“( ) The Secretary of State must, on or before 21 October 2019, publish a report on progress on the establishment of a Renewable Heat Incentive Hardship Unit in the Department for the Economy (unless an Executive has already been formed).”
My Lords, I have tabled Amendments 5, 6, 7, 8 and 9. They may not be in the same order as they were in Committee, but they cover the same areas of substance. I draw the attention of the House to one change. Members may recall that in a discussion on these amendments in Committee, the noble Lord, Lord Hain, who is not in his place, indicated that children’s health had been omitted from this list. It was after a discussion involving him that the Minister was happy to include a reference to the waiting times for children, as well as on other matters.
I have drawn to the attention of this House on a number of occasions the serious delays in the Northern Ireland health service. It has reached a stage where, last week, the Nuffield Trust produced a damning report on the length of time for which people had to wait. Their health, welfare and quality of life have been dramatically affected by this, and I have no doubt whatever that life expectancy, and life itself, have suffered and been extinguished while people have been waiting on these lists. There are enough noble Lords in this place, particularly those from the medical profession, who know the dangers of delay in cancer diagnosis. The breast cancer waiting times for one of the trusts last year were absolutely outrageous. Noble Lords should think of the anxiety and suffering in a family when that situation arises. I hardly need to draw any clearer a picture.
I shall deal with other matters, such as the renewable heat incentive hardship unit; the Minister, the noble Lord, Lord Duncan, gave an undertaking in March that it would be established. While some steps have been taken, they have been faltering and insufficient, and rely purely on a European Union ruling that it is able to offer loans for only six months at commercial rates, which is absolutely pointless and of no value whatever to the people on this scheme who have found themselves, through no fault of their own, in dire financial straits.
I also point out that the purpose of this scheme was to encourage people to move from the use of fossil fuels to the use of renewables. That was the objective, but what do we have today? I was speaking to a boiler operator the week before last and he has gone back to oil. This is happening in other areas, so what has happened? We have taken a sum of public money and put it into a scheme, the objective of which was to provide renewable energy to reduce our carbon footprint. So, what have we done? We have got many of the people who took up that scheme into serious financial trouble and just left them sitting there. We are now back to the stage where fossil fuels are their only option and they are back to using them. The money has been completely wasted and people have been put into dire straits in the meantime.
I know it is difficult for Ministers here to have their will in Northern Ireland departments over which they have no direct control—that point was made in the debate—but this issue will not go away. There are quite a number of noble Lords in this House who will persist with this until we get justice for the people who have, through no fault of their own, found themselves in dire financial straits. I hope that the amendment will focus attention as we go through.
On Amendment 6, the noble Lord, Lord Black of Brentwood, made a very impressive contribution in Committee on Monday, but the Government did not feel able to accept his amendment. However, we know that the law on libel in Northern Ireland is outdated and poses a threat to a number of areas of activity. I firmly believe that it has to be addressed.
Turning to Amendment 7, Northern Ireland has the highest suicide rate in the United Kingdom. A strategy, Protect Life 2, has been prepared and is sitting on a shelf, unable to be implemented because of the present crisis. Many noble Lords here, from Northern Ireland and other places, know what I am referring to. Because of our recent past, we have a higher level of mental health issues plus a lower level of mental health provision. The combination of those things compounds the fact that we have a strategy that is perfectly sound but cannot be implemented. It is just sitting there because no Minister is in place. That is not the fault of the Front Bench in the House today. I understand that, but the facts are the facts. I hope that the parties will yet surprise us and come up with an arrangement—sooner rather than later. But in the event that that does not happen, even on humanitarian grounds we owe it to people to ensure that the strategy at least begins to be implemented, so that the departments can take steps to alleviate a serious problem.
Amendment 9 deals with something that is not immediately upon us, which is why it would insert a date of 1 December this year for a report. This is because certain mitigations on welfare support measures are covered financially until the end of March next year, but difficulties would be created in the absence of their renewal. Perhaps I may deal with what we call the bedroom tax. I am totally of the view that it is right to try as best one can to match the size of a property to the occupants, so that we do not have vast numbers of empty, half-used properties. However, you cannot ensure that people will move into single-room accommodation if it is not there. That is the problem we are confronted by. If people are in the later years of their lives, you cannot simply uproot somebody in their 70s or 80s and try to force them into the private rented sector if there just is not the public sector accommodation available.
We need to look closely at this because, in the absence of a local Minister combining housing policy with welfare policy, which is what should be done, in our system that is just not working. I hope that those matters will come forward by December and that, in the absence of an Executive, we do not do the usual thing and leave it until the middle of March—a fortnight from the end of the financial year—so that a whole crisis and another piece of rushed legislation are coming through. The date of 1 December 2019 is in Amendment 9, which gives time for the Government to discuss with the Northern Ireland departments. It also gives time for us to plan ahead and means that if legislation is required, there will be at least three months in which to insert it and get it done, rather than having last-minute—or five-minutes-to-midnight—legislation coming through. That is the purpose of my amendments and I beg to move Amendment 5.
My Lords, I welcome Amendment 7, as tabled by my friend, the noble Lord, Lord Empey, as a trustee of the mental health service for adolescents which is the Brent Centre for Young People in north London, as noted in my entry in the register of interests. That centre’s work has been in progress for 50 years; originally, it dealt principally with young people at risk of taking their own lives. The clinicians there tell me that they have never had a young person take their life while under treatment in that centre. They have described to me how when a young person meets a clinician who immediately understands where they are coming from and their concerns, it is immediately effective in assuaging the fears of the young person.
What I am trying to say is that where appropriate services are available, they can be very effective. It troubles me very much to hear that this strategy, developed in Northern Ireland, has been on the shelf for two and a half years because of the vacuum of power. I warmly welcome my noble friend’s efforts to highlight these points today. I hope that the Minister may have something comforting to say on the matter of young men, in particular, taking their lives in Northern Ireland because there has been insufficient action to address their needs.
My Lords, not for the first time the noble Lord, Lord Empey, has put his finger on urgent issues to do with Northern Ireland. I congratulate him on his persistence in that approach. Today he has once more alerted the Committee to an urgent need that can be traced back to the fact that we have no local administration. The extra strain of business and of making decisions passed on to our Civil Service has been a consequence.
I want to speak particularly about the amendment to address the rising suicide rate in Northern Ireland. This is one more example of the legacy of our past, of what we have been through; it has cast its shadow not on that generation but on the new generation. I have had personal, recent experience of the rector of a parish coming to me, even in my retirement, to seek advice for the son of one of those involved in our Troubles. The son had only recently learned of some of the actions and involvement of his father, and this preyed on his mind so much, even in middle age, that he saw no alternative but to end his life. That is an exceptional case, I accept, but it does something to illustrate that this issue is not just for now: it is a legacy reaching back to us from the past.
The report to which the noble Lord referred is gathering dust. Lives are being threatened. Thank God that in some cases prevention intervenes, but if this Bill produces nothing other than a new recognition of human need—nothing to do with politics, nothing to do with “us and them” and all the usual phrases we have in Northern Ireland—then the opportunity could be seized to put pressure on those avenues that can directly relate to the human need, which is a legacy issue and an overlap. There is a crying need at the moment in Northern Ireland to address prevention of the taking of human life and I urge the Committee to remember that.
My Lords, I support these amendments, which I hope the Government will be able to accept—I think they have indicated that they will, as they are asking for reports. This is valuable work that the noble Lord, Lord Empey, is recommending, covering what I regard as the people’s priorities in Northern Ireland. The reality right now is that these issues are adversely affecting people in a whole range of services across the Province, as he rightly says. I respectfully and slightly diffidently suggest that these are probably the issues that exercise people day to day, more than some of the issues that apparently divide the parties in the talks. Those who are in talks should look at these issues and the consequences of their not being able to establish an Assembly to address them, because I think that is what the majority of people in Northern Ireland want their Assembly to do.
As I said on Monday, in one sense it is easy to ask for reports and easy, perhaps, for the Government to agree to reports, but I underwrite what I said on Monday: if those reports are going to happen, can they be considered and produced with a view to being the basis of policy action, rather than just a statement of events? That at least will have made use of the time that has been lost, so that if, as I hope, we have an Executive and Assembly in place, they will have some meat that they can start to action sooner rather than later. If the worst happened—even direct rule—there would not be a hiatus before we got to grips with things. The situation has gone on for so long that the consequences are becoming more serious every day. As the noble Lord, Lord Empey, says, we are talking about lives being lost. The longer it goes on, the harder and more costly it will be and the longer it will take for Northern Ireland to catch up.
My plea to the Minister, which I hope he will take positively, is that this not be just a gesture of good will —that there is a real, practical determination to ensure that, if reports are produced, they are valuable and help to implement policy decisions sooner rather than later in the event of the Assembly being established, or of Parliament or the Government recognising that action needs to be taken even in the absence of an Assembly.
My Lords, in the debate on Monday evening I joined many noble Lords in supporting the issues that the noble Lord, Lord Empey, has brought before the House. These amendments certainly focus our minds on issues that in many ways cross every boundary in Northern Ireland and are not divisive. If your Lordships were to speak to practically every party in Northern Ireland, they would find that they came together on these issues. As we have suggested before, is it not possible that the Assembly could come together and an Executive could be formed, that they could function and take forward these priorities which unite us, and that in the talks process they could continue on the other contentious issues that divide us? Until now, that has gone unheeded. I believe that most parties agree with that manner of taking things forward, but unfortunately that has been hindered.
The noble Lord, Lord Empey, rightly says that the Front Bench is not currently responsible for many of these issues. I could accept that, but it does not have the responsibility for two major social issues on which it is legislating in the Bill. It feels that it can take those issues forward, but it leaves this behind. What is more important? People are left dying while waiting for operations or cancer treatment—left lying on trolleys, waiting for their operations or even appointments to take place. There is a long waiting list for appointments to see a medical practitioner. The elderly are left without community care. These are life and death issues.
I agree with each and every one of the amendments. In the previous debate, my noble friend Lord Morrow, and the noble and learned Lord, Lord Brown, gave a list of other things which are certainly sitting there. The noble Lord, Lord Empey, is right to give the example of suicide. The strategy is there, but it has not been operated. The Government feel that they can get involved and have agreed to take forward in legislation the issues of same-sex marriage and abortion, but they will not get involved in something which is indeed life and death.
The House may not have realised that, before this debate, we debated the wild animals in circuses Bill. I know there are plenty of clowns in circuses, but nobody is laughing in Northern Ireland over the issues that the noble Lord, Lord Empey, has raised. They bring great concern to the people of Northern Ireland. We could debate each one, but I will not take the time of the House, because I have spoken on them before. It is right that we should have a report on suicide. Amendment 7 says that:
“The Secretary of State must, on or before 21 October 2019, publish a report on progress of the implementation of the Protect Life 2—Strategy for Suicide Prevention in Northern Ireland”.
It is sitting on a shelf. We certainly want to see progress. I therefore believe that the debate has allowed us to raise issues that are very relevant to life and death in our Province at this time.
My Lords, I want to make two points in support of what the noble Lord, Lord Empey, has done. He has been consistent over quite a period of time, particularly in raising issues regarding the health service.
For a long time, I worked as a doctor and psychiatrist in Northern Ireland; I am familiar with the situation there. I was asked to chair a Royal College of Psychiatrists commission for the whole UK on suicide, on which we produced a report. The noble Lord is absolutely right to keep asking this question and pressing the Government on a range of issues, particularly those regarding health- care. We want to see many other issues brought forward—the noble Lord mentioned RHI and libel law, for example —but he is right to point out that suicide and healthcare are matters of life and death and that the longer they are postponed, the more people’s lives will come to an inappropriate end. I welcome what he has done and support him in it. I ask the Government to support what he says.
There is another element that is very much the meat of the Bill. Effectively, the noble Lord points out that we are moving towards direct rule because, simply, there is no other way of getting any business done in Northern Ireland. There is no government there; that is an impossible position and it is simply not acceptable. I heard a lot of talk about what is democratic and what is not, but not having a Government is a very serious matter. There are a number of ways in which the Government can address this. The noble Lord, Lord McCrea, mentioned one that has been floated several times by a number of us: getting the Assembly to meet and debate these kinds of issues. We could have an election to an Assembly, although part of the point of this Bill is to postpone that; I accept that the summertime is not a good time to do that, but this situation cannot continue.
We will either have an election or move into direct rule. The Bill and the amendments to it take us in that direction. It is regrettable but inevitable that we move in that direction if there is no other option; we cannot continue not having a Government. I commend the noble Lord, Lord Empey, and point out the import of what he says about not just specific issues but the issues in this Bill. I plead with the Government to take serious action after the Summer Recess in respect of either an election or some other way of returning government to Northern Ireland.
To clarify, while I understand how the noble Lord has interpreted what I am doing, does he accept that I believe in devolution and want to see those departments there? My purpose has nothing to do with pushing us in the direction of direct rule; I want to push us in the direction of devolution.
I wholly accept what the noble Lord says: he does not intend to push things towards direct rule. However, the implication of him having to raise these matters through amendments here, rather than them being raised by colleagues back in Belfast—despite what all of us wish, which is to move towards devolution—is that we cannot continue with no Government in the medium term. That is what we have. I entirely accept his bona fide commitment to devolution but that is an inevitable consequence.
My Lords, I do not think that the noble Lord, Lord Alderdice, was here on Monday, for reasons that I am sure we all understand. The message then was exactly what he says: we are moving inexorably towards direct rule.
I want to make one point to the people of Northern Ireland. They are being served incredibly well in your Lordships’ House by the noble Lord, as well as by the noble Lord, Lord Empey, and my noble friend Lord Trimble, a winner of the Nobel Peace Prize. They are active in your Lordships’ House after all the distinguished service they have given, and continue to give, in Northern Ireland. I hope that that will send a reassuring message.
I hope, above all, that their unity on the subject of devolution will spur on our colleagues from the DUP and others to redouble their efforts to get the Assembly meeting and an Executive formed. If we have to wait a little time, as the noble Lord has said, and many of us have said, time and again, can we please have the Assembly meeting, its committees meeting? That, at least, is something. I very much hope that long before any of the dates in this Bill come, we will at least see that happen.
My Lords, I strongly support the view that what we need is a devolved Government in Northern Ireland. Paying attention to items that separate us is very detrimental to making progress. On the items that the noble Lord, Lord Empey, has cited, perhaps reliable legislation is not quite so important as the others, but all the others are vital for day-to-day life in Northern Ireland. I sincerely hope that the Northern Irish parties, all elected to the Assembly with the responsibility that they have, can come together on such items to get things done. Otherwise, if we have a progress report on implementation, what is it going to tell us? That nothing has happened. That is absolutely useless.
What we really need is to do our level best to get the Executive into action. I understand that there are some matters that divide the principal parties in Northern Ireland. In fact, there are things that divide people continually, but having a Government who can carry out the essential matters referred to in the amendment of the noble Lord, Lord Empey, is an urgent matter, and the responsibility primarily lies with those who have been elected to the Assembly. I hope that the Government will do the best they can on these items, but surely the main message is that those responsible, elected by the people to serve in the Assembly, should come together and form an Executive to carry these things out.
My Lords, I thank the noble Lord, Lord Empey, for bringing forward these amendments. There seems to be a consensus in the House on the importance of forming an Executive as soon as possible. The noble Lord serves that cause by illustrating the serious issues that have not been processed. We are 100% behind the re-forming of the Executive, and we hope that the people and the politicians of Northern Ireland see the wisdom of that. The amendments are interesting and useful, and I hope that the Government will be saying appropriate warm words.
My Lords, the noble Lord, Lord Empey, has raised important issues and made some very valid points, and I add my name to those who have expressed their gratitude to him for doing so. My noble friend Lord Duncan has been keen to update the House on progress in establishing the RHI hardship unit, and I am very happy to accept the requirement to publish this report by 21 October or earlier. The reports that the noble Lord requests are on libel and suicide strategy.
I note the points made by the noble Earl, Lord Listowel, and the noble and right Reverend Lord, Lord Eames, and I have taken note of the tragic anecdotes that have been told. The issues of NHS waiting times and welfare mitigations were also raised. All are matters of great importance, as my noble friend Lord Duncan set out in Committee earlier this week, and we fully understand the reason for raising them in this place. We are without a sitting Assembly in Northern Ireland to debate these matters and to consider ways forward that serve all of the people of Northern Ireland.
These are all devolved matters. It is this Government’s fervent hope that Northern Ireland’s political leaders can see their way to agreeing to restore the devolved institutions. We have had some passionate speeches to this effect during this short debate. As these are devolved matters, I do not purport to be able to significantly enlighten the House on the substance of the important issues the noble Lord has raised. But in light of the great value of these amendments, I am happy to accept them today and to commit to one-off reports on the issues specified.
In conclusion, I will answer a question that was raised by the noble Lord, Lord Bruce of Bennachie, on what might happen upon the production of the reports. I say on behalf of the Government that it is our sincere hope that the incoming Ministers in Northern Ireland will draw from these reports to make progress on these important issues. They will be published and will therefore be public documents.
My Lords, I am extremely grateful to all noble Lords who have participated in this debate, and for the consensus that has emerged. Like many noble Lords, particularly the noble and learned Lord, Lord Mackay of Clashfern, I would be much happier if we were not sitting here debating these matters. Clearly, we have a unique situation: yes, Stormont has been suspended before, but it was replaced by direct rule. This is the first occasion when Stormont has been suspended and has not been replaced by direct rule. Therefore, we have a most unique situation—a Civil Service that is working but which is not accountable to anybody. To use the vernacular, it is bonkers, and the question is how long we can put up with it. However, let us focus on the issues, which are worth looking at on their own merits. Perhaps, as the noble Lord, Lord Bruce of Bennachie, said, they could provide at least a basis upon which policies could be implemented when a suitable Government are established. In that spirit, I commend the amendments on the Marshalled List to your Lordships.
Amendment 5 agreed.
Amendments 6 to 9
6: Clause 3, page 4, line 2, at end insert—
“( ) The Secretary of State must, on or before 21 October 2019, publish a report on progress on libel legislation in Northern Ireland and any plans to align Northern Irish legislation with libel legislation in the rest of the United Kingdom (unless an Executive has already been formed).”
7: Clause 3, page 4, line 2, at end insert—
“( ) The Secretary of State must, on or before 21 October 2019, publish a report on progress of the implementation of the Protect Life 2 – Strategy for Suicide Prevention in Northern Ireland (unless an Executive has already been formed).”
8: Clause 3, page 4, line 2, at end insert—
“( ) The Secretary of State must, on or before 21 October 2019, publish a report on an assessment of how much demand there is for elective care services and how this is exceeding health service capacity for both new and existing patients across Northern Ireland, and detailing each of the current measures being taken to reduce health and social care waiting times, as well as those that are planned, and the impact of NHS waiting times on children (unless an Executive has already been formed).”
9: Clause 3, page 4, line 2, at end insert—
“( ) The Secretary of State must, on or before 1 December 2019, publish a report on the future welfare mitigation support measures that will be in place after March 2020 (unless an Executive is formed on or before 1 December 2019).”
Amendments 6 to 9 agreed.
Clause 5: Assistance and support for victims of human trafficking in Northern Ireland: debate
Amendment 10 not moved.
Clause 8: Marriage of same-sex couples in Northern Ireland
11: Clause 8, page 6, line 3, leave out subsections (1) to (4) and insert—
“(1) The Secretary of State must, by regulations, make provision so that—(a) two persons who are of the same sex are eligible to marry in Northern Ireland, and(b) two persons who are not of the same sex are eligible to form a civil partnership in Northern Ireland,provided that, apart from the question of sex, they would be eligible to marry or form a civil partnership (as the case may be).(2) Regulations under subsection (1) must be made so as to come into force on or before 13 January 2020 (but this does not in any way limit the re-exercise of the power).(3) The Secretary of State may, by regulations, make any other provision that appears to the Secretary of State to be appropriate in view of—(a) the extension of eligibility to marry in Northern Ireland to persons of the same sex, and(b) the extension of eligibility to form civil partnerships in Northern Ireland to persons who are not of the same sex.(4) Regulations under subsection (3) may, in particular, make provision about—(a) parenthood and parental responsibility of parties to a marriage or civil partnership;(b) the application by a party to a marriage or civil partnership for a gender recognition certificate under the Gender Recognition Act 2004, or the issuing of such a certificate, and the consequences of that application or issuing for the marriage or civil partnership;(c) the financial consequences of marriage or civil partnership (for example, in relation to pensions or social security);(d) the treatment under the law of Northern Ireland of marriages, civil partnerships or relationships similar to civil partnerships formed outside of Northern Ireland.(5) The Secretary of State may, by regulations, make provision for and in connection with a right to—(a) convert a marriage into a civil partnership;(b) convert a civil partnership into a marriage.Such regulations may, in particular, make provision equivalent or similar to that contained in or authorised by section 9 of the Marriage (Same Sex Couples) Act 2013.(6) The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious or other belief or opinion in relation to marriage or civil partnership (including the conversion of marriage into civil partnership and vice versa).(7) Regulations under this section—(a) may make provision for fees to be payable;(b) may make provision conferring a discretion on a person;(c) may make provision enabling a person to make regulations (and such regulations may make provision for fees to be payable);(d) may include provision amending, repealing or revoking any provision made by an Act of Parliament or Northern Ireland legislation;(e) may, in so far as made in reliance on section (Regulations: procedure and supplementary 1)(4), include provision amending or repealing provision made by an Act or Measure of the National Assembly for Wales or an Act of the Scottish Parliament.(8) In this section—(a) references to marriage in Northern Ireland (however expressed) include references to marriage outside of the United Kingdom by virtue of eligibility to marry in Northern Ireland (in accordance with Part 1 or Part 3 of Schedule 6 to the Marriage (Same Sex Couples) Act 2013);(b) references to forming a civil partnership in Northern Ireland include references to registering as civil partners outside the United Kingdom by virtue of eligibility to do so in Northern Ireland (in accordance with section 210(2)(b) or 211(2)(b) of the Civil Partnership Act 2004).”
My Lords, in moving Amendment 11, I will speak also to Amendments 15 and 22 in my name and, on a cross-party basis, the names of the noble Lord, Lord Bruce of Bennachie, and the noble Baroness, Lady Massey of Darwen. I will not go over a large amount of what we discussed both at Second Reading and in Committee, but will explain briefly my background and interest in this subject.
We have discussed on a number of occasions during the previous debates the history of the Northern Ireland Assembly and a number of votes on the question of same-sex marriage. I came to this relatively recently. In January last year, I hosted a party here at the House of Lords for members of the Kings Cross Steelers—whose tie I wear with pride this evening. It is the world’s first gay rugby club, based in London. When hosting this event I discovered how many members of my club were from Northern Ireland, and I realised that they did not have the same rights. One of those present was John Henry, a former head boy at Wallace, and his brother, Chris Henry, an Irish rugby international, who was showing support for his brother. The world has changed, and that was the indication—that a rugby international was willing to stand alongside his gay brother and say, “The world has changed”. Arising out of that, I started working with Conor McGinn in the other place to produce a Private Member’s Bill, which I submitted on 27 March last year and he submitted in the Commons the next day. I think the noble Baroness, Lady Smith, had a very enjoyable evening at that party alongside all the rugby players.
I will look in my diary and make sure that the noble Baroness has a free slot in her diary to come. Hopefully, it will be a celebration of the introduction of same-sex marriage. I said I would wear this club tie each time I spoke until we had changed this law, and I intend to continue to do so—but I hope I will not be bound by that for too long.
The purpose of the amendments I have tabled, with other Members of this House, is to improve and extend the drafting of Clause 8. This will enable the Secretary of State to deliver a comprehensive and effective regime for same-sex marriage in Northern Ireland. The amendments would also allow the Secretary of State to introduce opposite-sex civil partnerships in Northern Ireland. This will ensure that all couples in Northern Ireland, irrespective of their sexual orientation, will have equal rights to enter the form of relationship of their choice. At this stage I thank not only the Minister and Conor McGinn but the officials, who have been so helpful in drafting these amendments.
Amendment 11 would replace subsections (1) to (4) of Clause 8 with new subsections (1) to (8). New subsection (1) enables the Secretary of State, by regulations, to extend eligibility so that two people of the same sex may marry in Northern Ireland and two people not of the same sex may form a civil partnership. Noble Lords will recall that we debated extending civil partnerships to opposite-sex couples in England and Wales earlier this year; I contributed by tabling an amendment, which I ultimately withdrew. This was part of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. Last week the Government announced their plans to allow such couples to form civil partnerships, and last month the Scottish Government committed to introducing legislation enabling Scottish opposite-sex couples to form civil partnerships. It is only right that we now extend this entitlement to opposite-sex couples in Northern Ireland so that we ensure full equality of access to relationships across the United Kingdom.
New subsection (2) requires that the first regulations under new subsection (1) come into force on or before 13 January 2020. The combined effect of the amendments is that Clause 8 itself would come into force on 22 October, unless the Northern Ireland Executive is reformed on or before 21 October, and the regulations on same-sex marriage and civil partnerships would follow early next year. Pushing back the commencement date for these regulations would allow the Government and the Northern Ireland Civil Service more time to make the necessary changes to legislation, as well as the essential operational changes. I understand that any less time than this would jeopardise the Government’s ability to extend the full set of rights and entitlements to both same-sex married couples and opposite-sex civil partners.
Our amendments would also allow for other necessary amendments to be made by regulations. New subsection (4) outlines the areas about which the regulations may make particular provision. These include: matters relating to parenthood and parental responsibility; the financial consequences of marriage and civil partnership, which may include pensions and survivor benefits; and the recognition of equivalent same-sex marriages and opposite-sex civil partnerships entered into in Great Britain and overseas as marriage and civil partnerships in Northern Ireland. I stress that this list is not exhaustive but is intended to give a clear indication of how the powers in new subsection (3) are likely to be used and the numerous other changes that will be needed as a consequence of the extension of marriage and civil partnerships.
New subsection (5) enables the Secretary of State to make regulations governing conversion rights. The Marriage (Same Sex Couples) Act 2013 allows same-sex civil partners in England and Wales to convert their civil partnerships into marriage, without first having to dissolve the partnership. The Government are now consulting on whether opposite-sex married couples in England and Wales should similarly have the opportunity to convert to a civil partnership. New subsection (5) would allow for both eventualities in Northern Ireland.
New subsection (6) enables the Secretary of State to make regulations that protect the ability to act in accordance with religious belief in relation to same-sex marriage, opposite-sex civil partnerships and conversion between marriage and civil partnership and vice versa. I am conscious that this is a particularly sensitive issue in Northern Ireland. Noble Lords may be familiar with provisions of the 2013 Act, known as the quadruple lock, which we have debated in this House on many occasions. Essentially, the quad lock ensures that no religious organisation or individual minister can be compelled to marry same-sex couples or to permit that to happen on their premises. The 2013 Act also provides an opt-in system for religious organisations that wish to conduct marriages of same-sex couples and ensures that no discrimination claim can be brought against religious groups or individual ministers who refuse to marry couples because they are of the same sex. The Government have noted that they intend to extend similar protections to civil partnerships on religious premises in England and Wales.
The protections for Northern Ireland will need to be adapted to fit the specific circumstances there. That is because the system for religious marriage is different in Northern Ireland as it operates through approved celebrants, rather than approved premises, and marriages can be conducted by belief organisations, such as the humanists, as well as religious organisations.
Northern Ireland also has constitutional protection against discrimination on the grounds of political opinion. The power in subsection (6) is therefore drafted in a way that enables appropriate protections to be crafted to fit the particular conditions in Northern Ireland, although I understand that they are likely to be broadly the same as those applicable in England and Wales and in Scotland. 1 hope that that reassures noble Lords that no religious organisations nor individual ministers will be compelled to conduct same-sex marriages or opposite-sex civil partnerships in Northern Ireland against their will.
I notice that Amendment 11 often states that the Secretary of State “must” do something, but new subsection (6) states:
“The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious or other belief or opinion in relation to marriage or civil partnership”.
In the debate on Monday, I thought that the amendment of the noble Lord, Lord Hayward, was giving assent to or accepting something. This is certainly very far away from giving protection for those of religious belief.
During the debate on Monday I indicated my willingness and understanding and, I must say, determination to ensure that the protection in Northern Ireland was as it was in England and Wales. In fact, I checked my comments in Hansard earlier today; I could refer to the column but I will not do so. I checked with the lawyers and pressed them very hard—they have been enormously helpful—because I gave that commitment to the noble Lord and his colleagues on Monday. I am clear in my own mind, following serious and quite lengthy discussions, that the amendment as drafted will cover the protection to which I referred on Monday and broadly achieves the protections. I say “broadly” because of the difference between Northern Ireland and England and Wales in terms of certain practices. Because I gave that assurance to the noble Lords, I have checked it out and I am told that the protections, which I know noble Lords were seeking, are there. That is why I do not think the manuscript amendments that they have tabled are necessary.
I am sorry that this is a lengthy explanation, but this is quite complex and it is important that the House understands the objective of each of the individual subsections on the Amendment Paper.
Subsection (7) enables the regulations to provide for fees to be payable; for example, for registering civil partnerships and converting marriages to civil partnerships. It also enables the regulations to amend, repeal or revoke primary legislation, including consequential amendments to legislation made by the Scottish Parliament and the National Assembly for Wales. This is to allow the Secretary of State to make the necessary consequential changes to all relevant legislation, some of which may be cross-jurisdictional.
Subsection (8) ensures that the regulations can also provide for those who are eligible to enter a same-sex marriage or opposite-sex civil partnership in Northern Ireland to do so in a British consulate or on an overseas British Armed Forces base.
Amendment 15 introduces a new clause after current Clause 9. It provides that regulations made under Clause 8 are to be made by statutory instrument and subject to the negative resolution procedure. I appreciate that it is highly unusual for powers such as these to be subject to anything less than the affirmative resolution procedure and I note the concerns of the Delegated Powers and Regulatory Reform Committee, expressed in its 59th report of the Session. The other place, in accepting Conor McGinn’s amendments, strongly endorsed his approach to extending same-sex marriage to Northern Ireland, including use of the negative resolution procedure. I hope that our amendments have given noble Lords a clearer indication of how the regulation-making power will be used.
Finally, Amendment 22 makes consequential changes to the commencement provision in Clause 10. It replaces current subsection (2) and clarifies that Clause 8 will come into force on 22 October unless the Northern Ireland Executive are formed on or before 21 October, in which case Clause 8 will not come into force and it will be for the Executive to take forward these measures. That is to prevent the Secretary of State and a reformed Executive both having a power to introduce same-sex marriage and opposite-sex civil partnerships in Northern Ireland.
I started by saying that the world is changing. The Marriage (Same Sex Couples) Act in this country faced substantial opposition. A few years on, it is now accepted as a part of life: there is no question about that. I then referred to how society was changing in Northern Ireland and I referred to my club tie. We are not allowed to refer to what is seen or heard outside the Chamber, but some Members of the House may notice that there is a similar tie within vision. It is worn by a product of Rainey Endowed School, a school that both noble Lords, Lord Browne and Lord McCrea, will recognise. It identifies someone who is another member of my club, who in their community would benefit from the changes that I propose this evening. I beg to move.
My Lords, I should tell the House that if Amendment 11 is agreed, I cannot call Amendment 11B by reason of pre-emption.
Amendment 11A (to Amendment 11)
11A: Clause 8, leave out subsection (6) and insert—
“(6) The Secretary of State must, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious or other belief or opinion in relation to marriage or civil partnership (including the conversion of marriage into civil partnership and vice versa) and such regulations must, in particular, make provision equivalent or similar to that contained in or authorised by the Marriage (Same Sex Couples) Act 2013”
My Lords, I listened very carefully to what the noble Lord, Lord Hayward, said. He said that it was very clear in his mind, and I suspect that it is. But neither the noble Lord nor I—nor indeed any other noble Lord in this House—will be here forever, and that is the reason for my amendment.
I feel that the tweak to Amendment 11—because that basically is what it is—ought to be entirely acceptable to the noble Lord, Lord Hayward, to the Government and to your Lordships’ House. First, it makes it mandatory, rather than discretionary, for the Government to use their order-making power to protect religious liberty. I emphasise that the protection of religious liberty is what this is about. Secondly, it pegs those religious liberty protections to the Marriage (Same Sex Couples) Act 2013. That Act contains a series of strong protections, including the famous quad lock, which the noble Lord, Lord Hayward, referred to. I call it the gold standard. We must make sure that the religious liberties of the people of Northern Ireland are definitely protected, that there is no room for ambiguity and that it is not merely discretionary for the Government to act. We must make sure that those protections are not less than those enjoyed by the citizens of other regions of the United Kingdom.
Amendment 11 states:
“The Secretary of State must, by regulations, make provision”,
for same-sex marriage. However, subsection (6) begins:
“The Secretary of State may, by regulations, make … provision”,
to protect belief. There is no “shall” or “must” there; it is optional. Protection of religion or belief should not be left as a “maybe”, and nor should it be possible for some future Government, when none of us is around, to use the same order-making power to simply abolish such protections by saying that they no longer consider them necessary.
So my first tweak in Amendment 11A simply replaces “may” with “must”. In my book that seems rational and reasonable. I know that there are other “mays” in Amendment 11—I accept that—but it is for others to argue whether those, too, should become “must”. I am arguing that the word is essential in subsection (6) because we are talking about the protection of fundamental rights and freedoms. I ask your Lordships’ House to think on that for a moment.
When the 2013 same-sex marriage legislation was being debated, many people said that their support for it was conditional—this is on the record—on the comprehensive set of protections that guarantee religious freedom, including, crucially, that no place of worship would ever be forced to take part in a same-sex wedding. I hope that the same people who said that in 2013 will reaffirm today that their support for same-sex marriage in Northern Ireland is conditional on the same level of protection being put in place.
The 2013 Act gold standard brings me to my second tweak. I have borrowed phrasing from subsection (5), which requires that regulations made under that power may,
“make provision equivalent or similar to that contained in or authorised by”,
the relevant part,
“of the Marriage (Same Sex Couples) Act”.
Again, I made it a “must” rather than a “may” because it seems very obvious to me that whatever protections are introduced ought not to be less than those enjoyed by citizens on the mainland.
I could also have invoked the Scottish same-sex marriage legislation, since Scotland, like Northern Ireland, has a system where the emphasis is on the celebrants or officials being registered to conduct marriages, not on the premises. However, I wanted to keep it simple and to trust the good sense of the Government to uphold the same standard of protection while accounting for differences in the way that our marriage legislation is framed.
In conclusion, we are doing all this in an awful hurry. We have not had time to debate the details properly, but by tying the regulation-making power to the 2013 Act, so that the provisions must be equivalent or similar, we are simply being consistent. In all the debates that took place in 2013, we at least had the time to consider these matters. We must trust that we got the balance of rights more or less right. The same balance should be afforded to and apply in Northern Ireland.
I was to trying to comment on the speech of the noble Lord, Lord Morrow, and I thought I would be polite and wait for him to conclude. Just to clarify, in my earlier response I did not make it absolutely clear that the reason for the difference between “must” and “may”—although I am sure it will not affect his intention to pursue the debate—is that one is an enabling power and therefore “may” is standardly used in those circumstances.
My Lords, it is a fairly good general rule that, when we are faced with legislation that is the sort of dog’s dinner that no reasonable dog would look at—complex and everybody has misunderstandings, with comments that they cannot accept this bit or that bit—the legislation is fatally wrong. When Parliament gave devolved rule to the people of Northern Ireland, it was a clear act. Now we are saying, “If you are not using it, we are going to take it back and use it for you”. The only honest way to go about that is to repeal the Act that gave devolved government and take over in an honest manner. To do it like this is a mess—and I will oppose this mess because, in all my experience, when legislation is as complex and muddled as this, it is fatally flawed.
My Lords, I support Amendment 11 in the name of my noble friend Lord Hayward and other noble Lords, and the other amendments associated with it. The House will recall the skill with which my noble friend Lady Stowell of Beeston took through the equal marriage legislation in this House, and it is good to see her in her place as we debate this amendment.
Since 2013, I have, on several occasions, called for the extension of same-sex marriage to Northern Ireland, and I am delighted that my noble friend Lord Hayward has taken up the issue with such skill and determination, strongly supported by others across the House who share our particular interest in gay rights, including the noble Baroness, Lady Barker, who is in her place today.
I take a simple, unionist view. People in Northern Ireland ought not to be deprived of this human right, which is now firmly established in Great Britain. I do not think that the unfortunately named Sewel convention should, on this matter, deter this Parliament from exercising the right, which it undoubtedly possesses, to legislate in a devolved area. Before its collapse, the Northern Ireland Assembly had reached a majority view in favour of reform, and opinion polls in Northern Ireland show that public support for same-sex marriage is running at much the same level as in the rest of our country.
It should be remembered that it was this Parliament that decriminalised homosexuality in Northern Ireland, after a courageous Ulster Unionist, Jeffrey Dudgeon MBE, had brought a case at the European Court of Human Rights. That legislation in this Parliament came 15 years after gay consenting adults elsewhere in our country had ceased to be treated as criminals. Let not gay people in Northern Ireland have to wait so long for the right to marry if that is their wish.
My Lords, I support these amendments, to which I have added my name. I commend the eloquence of the noble Lord, Lord Hayward, who spoke about the issues clearly and in detail.
I have followed these debates for a number of years and, for me, this is a matter of human rights, on which we have clear laws. It is also a matter of respecting diversity. I have known several same-sex couples who have suffered from not being able to make a deeply felt commitment to each other through marriage. Many of these couples have deeply felt religious faiths. As I recall, at the most recent Assembly elections in Northern Ireland, a number of Members who support equal marriage were elected. I think that 55 out of 90 Assembly Members have declared that they would vote to introduce marriage equality.
Marriage equality has enjoyed clear and growing majority support among the Northern Ireland public over many years, as various surveys have shown. The recently published Northern Ireland Life and Times Survey shows that 68% of people—70% including don’t-knows—support legislation for same-sex marriage. Amnesty International has produced a well-thought-through document on this, saying that the UK Government and Parliament are in a weak position as long as the ban on same-sex marriage continues in part of the UK.
The timetable proposed will allow for a statutory public consultation in Northern Ireland and provide sufficient time for the Government to make the necessary changes to regulations. I do not accept that this is being done in a hurry. The amendment will allow for the law on civil partnerships for opposite-sex couples in Northern Ireland to be brought into line with other parts of the UK, thus addressing the Human Rights Act compliance concern raised by the noble Lord, Lord Duncan of Springbank. This is an issue that we should grasp firmly now and I firmly support these amendments.
My Lords, I had occasion to take part in the same-sex marriage legislation in this House with one objective at the time, which was to balance the opportunity for people of the same sex to marry with the liberty of those of religious belief who disagreed that their Church or belief should be compelled to perform a same-sex marriage within their religious context. This was an extremely important element of that legislation.
The religious liberty exception, which the amendments of the noble Lord, Lord Morrow, seek to introduce into this Bill, was embodied in the original legislation, which this House passed through a Conservative Government. It has worked in the sense that I know of only one case where somebody has alleged discrimination against a religious practitioner in relation to same-sex marriage, which did not succeed. Why has there been only one case in six years? It is because the Act, when finally passed here, struck a reasonable balance between the two different interests. The amendments in the name of the noble Lord, Lord Morrow, basically incorporate into this legislation and, by amendment, into the amendment of the noble Lord, Lord Hayward, the protective provisions of our existing statute.
There are three protective provisions. First, there is no compulsion for religious entities or religious servants to perform such a marriage. Secondly, there is no discrimination if people try to get such a marriage and are refused—it cannot be the basis of any claim against the Church involved. Lastly, the religions involved should have the right to educate reasonably, with balance, their young believers in relation to this topic. The House passed that particular section and I want to emphasise one point. The provision in the previous legislation was mandatory, not discretionary. First, why should it be discretionary for one part of the United Kingdom and not another? Secondly, the text concerning the protections in Amendment 11B includes a stern phrase. It says that regulations on these protections,
“must include provision … prohibiting any person or religious body being compelled by any means”,
to carry out things that they do not want to carry out. The phrase “by any means” is not a term of art; it is one of comprehensive definition and it was introduced by the Government.
At this stage, it borders on the difficult to believe for the nation to be told that what was good six years ago should now be discretionary, without any evidential foundation, when it appears to have worked. I strongly urge the noble Lord, Lord Hayward, from a sense of balance to accept the amendments of the noble Lord, Lord Morrow, and to delete proposed new subsection (6) in Amendment 11.
The noble Lord, Lord Lexden, referred to the involvement of the noble Baroness, Lady Stowell, in this legislation. I well remember—she might too—that after Third Reading, in the words of gratitude about the passage of the Bill, she emphasised that this very sensitive part of the new procedures had generally been accepted. Let it continue.
My Lords, concern has been expressed about the future of Northern Ireland. I have been very impressed by noble Lords’ concern about affairs there—it compares very favourably with the lack of interest shown by Members in another place. When these subjects were debated, there was only sparse attendance there, yet hundreds took part in the Divisions. It was quite to the contrary here in the House of Lords, which is a tribute to this upper House of our national Parliament. There has been interest on all sides.
I speak as a strong devolutionist, who feels that it is the only way forward for Northern Ireland. I live among a mixed community of nationalists and unionists, and I know exactly how they feel. I must warn that I am concerned about the deterioration of the situation on the ground in Northern Ireland at this moment. It is not getting much publicity, but I certainly sense it around the Province. Therefore, I ask all Members to treat with great caution the idea of our national Parliament imposing legislation on the people of Northern Ireland on a devolved issue that should be retained by the Assembly at Stormont.
I recognise what my noble friend Lord Empey has stated: many issues in Northern Ireland have been delayed for too long, in education, health and other areas. The noble Lord, Lord Alderdice, agreed with him. He is himself a great devolutionist, but he made the point, quite correctly, that we are drifting towards direct rule, which is a problem. This is a very dangerous political move for this Parliament to make, because I know exactly how the nationalist people in Northern Ireland will react. They will say, “This is the English politicians imposing English standards on the people of Northern Ireland”. That will be the reaction, and it is not a winning formula.
This form of à la carte direct rule is not the answer. We must remember that under the Belfast agreement, where an Executive and Assembly at Stormont fail, there is not just one alternative—namely, direct rule—but a second alternative of the Government calling for a new election to the Northern Ireland Assembly. That may be the way forward, and should that happen—should the Government make this decision—we should recognise that the amendments before this House have within them a conditional timescale. I hope the Minister can answer this question: if these amendments are subject to a timescale, and if—in consequence of the failure of the political parties in Northern Ireland to create a new Executive and Assembly—the Government call for new elections to the Stormont Assembly, how will that affect the timescale in these amendments?
My Lords, I was pleased to be a signatory to the amendment of the noble Lord, Lord Hayward, and I am grateful to him for introducing it in comprehensive detail. We have had to move at some speed, but considerable work has gone into trying to ensure that we have an amendment that is fit for purpose and delivers the intention: to bring Northern Ireland into line with the law passed for the rest of the United Kingdom.
I take note of what the noble Lord, Lord Kilclooney, says. Elections may be one way of resolving this deadlock and something we may have to resort to. I am not so sure that, on this issue, parties in Northern Ireland will necessarily regard this as something imposed on the people of Northern Ireland by English politicians against their will. The evidence is that opinion in Northern Ireland has moved into line with that in the rest of the United Kingdom. We are not just talking about opinion polls, but specific expression.
On that point, the noble Lord must recognise the political feeling within Northern Ireland. In one respect, he is right in his conclusion, but in another respect, he is totally wrong. Sinn Féin will certainly say that it is opposed to direct rule, and that it is opposed to matters being imposed on Northern Ireland.
I do not dispute that whatsoever. I am taking the specific issue of same-sex marriage, and on that, Sinn Féin politicians have said that they would welcome this Parliament passing a law to introduce same-sex marriage. Indeed, politicians, leaders and leading politicians of every party bar one have done so. Had the Assembly been sitting, possibly without the use of a petition of concern, it is clear that the law would have been changed. That is also a reason why in the talks, one hopes that the future of the petition of concern will be addressed so as not to block the will of the majority even within Northern Ireland, never mind externally. On this issue, parliamentarians in this House and the other place are perhaps on somewhat stronger ground than they are on the other issue—which we will come to later—in terms of the opinions within Northern Ireland.
As the noble Lord, Lord Hayward, says, the world is changing, and it is changing rapidly. We have not even begun to discuss the issues of gender and gender definition, which are causing considerable controversy right now. However, this issue has in many parts of the world almost become a settled, recognised fact. It is not just about gay rights and the decriminalisation of homosexuality. Although there are far too many countries, particularly developing countries, where the law is way behind the reality, otherwise, the reality is that it is now accepted; it is a custom. It has moved quickly, but acceptance is pretty widespread. It is a fact: people meet people who are married and who are gay. The noble Lord, Lord Trimble, said that it has happened in his own family. We have to recognise that the gay community in Northern Ireland—the noble Lord, Lord Hayward, gave personal examples of friends of his and people from his rugby club—are trapped in a situation where they can see that marriage is readily available elsewhere in the United Kingdom, in the Republic of Ireland, across Europe, but not in Northern Ireland.
While Lord Sumption in his Reith lectures made some questionable challenges to the European Convention on Human Rights, it is arguable—and likely to be a resolution of the Court, if it has not already done so—that the right to a civil partnership and, indeed, a marriage for same-sex couples is a human right. If that is the case, if such a ruling were to be made, the United Kingdom Parliament would have the responsibility to ensure that the people of Northern Ireland have their human rights. It would be better to do it before we had such a ruling, and on the basis that there is a clear will within Northern Ireland for this to happen; and many have said that they expect this Parliament to deliver it.
My Lords, I would draw to the noble Lord’s attention the fact that assertions by English politicians about the opinions of the Northern Irish are no substitute for actual knowledge asserted by vote. It is no good saying that the polls have changed and showing how big they are, because polls—particularly in elective and political matters—are often proved wrong. I hope he will not put more weight than he already has, and in fact, I hope he will put less, on asserting—other noble Lords have done the same—that we know what the Northern Irish think and we know what is good for them, so we will do it. I am very unhappy about all of this, and I shall shut up now, because I was not able to come in for the beginning of the debate, but I am deeply unhappy about what is going on.
I think the noble Lord is misinterpreting what I said. I was quoting what had been said by Northern Ireland politicians and talking about how the Northern Ireland Assembly had voted. I am not talking about opinion polls, but about votes and the expressed views of political leaders in Northern Ireland—not my opinions but their opinions. I am simply reporting them to the House, and I suggest, on that basis, that it is not about opinion polls; it is about the clearly expressed views of political leaders in Northern Ireland and votes in the Northern Ireland Assembly when it was sitting. In that context, in a sense, the people of Northern Ireland and their representatives are asking us to pass this law.
My Lords, given that the noble Lord, Lord Elton, has raised the question of whether people from this side of the water ought to be ruling on what happens in Northern Ireland, I will say something as somebody whose accent betrays them as coming from Northern Ireland.
First, it is absolutely clear from the voting record of Members of the Northern Ireland Assembly that attitudes on this question have changed definitively. When the Northern Ireland Assembly was meeting, it passed, in 2015, by a majority, its wish for same-sex marriage. But this was blocked by the procedural device of a petition of concern—a device not put in place for these kinds of issues, and which in fact has been so overused that it is now being questioned altogether. We must understand that, had that device not been used, we would not be debating the issue now because it would already have been passed by the Northern Ireland Assembly.
Secondly, as I listened to the debate in Committee, a number of noble Lords said—it has been repeated again this evening—that we have to be terribly careful that we are not seen as people from this side of the water imposing a view on people in Northern Ireland, particularly, the sentiment was, on nationalists and republicans; it is quite difficult for Unionists to complain terribly about it. We need to understand how much the situation in Ireland has changed, not over the last five or 20 years, but over the last two, three or four years. There have now been referenda in the Republic of Ireland on both the abortion and same-sex marriage questions. Both have been passed and the legislation has been changed. We now have a Taoiseach in the Republic of Ireland in a same-sex relationship. It is not an issue any more.
Sinn Féin’s response, after the referendum was passed, was to say that this should now happen in the north. So, while folk here might say, “We are talking about harmonisation with the rest of the United Kingdom”, Sinn Féin will say, “We are looking at harmonisation with the rest of the island”. It has been clear that that is what it wants to see. On lots of issues that the party does not agree with it will use a different analogy, but this is clearly party policy and something Sinn Féin wants to deliver. So, I think it highly unlikely that there will be the difficulty that Members suggest—particularly that it might in some way create a degree of instability for the peace process or attitudes to the Good Friday agreement. That might have been the case five, 10 or 20 years ago; I do not believe it is now, at all, because the situation in Ireland as a whole has changed dramatically. We could go into why it has changed. It has changed because the position of the Churches and religious establishments has dramatically collapsed, north and south of the border, for reasons not totally dissociated from this element of human behaviour.
Having said that, an important case has been put by the noble Lord, Lord Morrow: that, because there are anxieties, there has to be a degree of confidence that the position of those in religious organisations, whether celebrants or members, will be protected. Whatever the legalities of the permissive use of the word “may”, there is a case for ensuring that the word “must” is used to give a degree of confidence to those who are anxious about the changes that have taken place. So, I do not have any anxiety that passing this in this Parliament will somehow create a great problem in the relationship with nationalists and republicans; they were keen to vote for it in 2015 and even more so now, post-2018. But there is a case for addressing the anxieties of those who feel that a mere “may” is not a sufficient protection for their concerns; I acknowledge and support that.
My Lords, I also very much support that, as well as what the noble Lord, Lord Brennan, said. It is not so much a matter of particular legal qualification, but it is a fact that this is a very important aspect of how people feel about the legislation. As the noble Lord, Lord Brennan, said, it has worked well here, and I hope the noble Lord, Lord Hayward, will find it possible to overcome the difficulties of lawyers and do what is necessary to secure this.
I also believe it would be proper for this sort of regulation-making power to be subject to consultation in Northern Ireland. If, as we have just heard, the position is that people there wish for this, consultation will show that. It is extremely important that what is proposed has the merit of being supported by consultation in Northern Ireland itself.
My Lords, I have no doubt whatever of the sincerity of the noble Lord, Lord Hayward, or of anyone else who has spoken in support of his amendment. I trust he will acknowledge that there is no lack of sincerity among those who speak on behalf of the amendment tabled by my noble friend Lord Morrow. He said that the world is changing. A number of Members of your Lordships’ House have had a religious vocation in life. When it comes to my religious belief, while we say that the world is changing, the word of God on which I base my belief says that although,
“Heaven and earth will pass away … my words will never pass away”.
It does not change with the passing of time.
The point that my noble friend Lord Morrow has brought before the House is very serious. I see the clear wording in the amendment of the noble Lord, Lord Hayward, and I come back again to the word “may”. When I was in public life, as a councillor for 37 and a half years, and as an elected representative in the other House for 25 years, a lot of emphasis was placed on putting “shall” and “must” into legislation. When “may” was put in, it was drawn to the attention of the governing party in those years that this did not create certainty. The amendment says that the Secretary of State “may” make a provision that the Secretary of State considers “appropriate”; in other words, “may” at the whim of the Secretary of State. If the Secretary of State, irrespective of who it is, decides not to give that protection, there is no protection, according to this legislation, should it be passed by your Lordships’ House this evening.
That is a very serious matter with serious implications because it gives the idea that this is discretionary, not mandatory. I therefore honestly have to say that many of my colleagues would have no confidence in the manner in which this has been presented at this time. I have listened carefully to what other Members of this House have said and I believe they acknowledge that there is a problem here. Acknowledging the problem is one thing, but if it goes into legislation and the wording is not changed, that is what we are left with. Then, of course, it goes to a court. What did Members of the other House really mean when they put down the word “may”? Did they simply leave it to the discretion of the Secretary of State or did they say that it went deeper than that?
Protecting religious freedom and religious belief in the United Kingdom is vital. We cannot lose our religious freedom, our civil and religious liberty, which was fought for and which people died for. I do not believe we should hand it away. Therefore, I make a solemn appeal to Members of your Lordships’ House. Forget about who tabled the amendment; forget that it is my noble friend Lord Morrow. Think carefully about what it means. I appeal to the House to accept that what he says is a protection that must be given to people of religious belief in Northern Ireland.
My Lords, I thank the noble Lord, Lord Hayward, for the way he introduced this amendment and for addressing the comments made by the noble Lords from the DUP. I am sure the Minister will repeat the assurances he gave. All noble Lords are right; there has been a considerable shift over time in what society thinks about these issues. I do not think Northern Ireland is any different from any other part of the UK in that regard.
As a general point, in Monday’s debate, the noble Baroness, Lady Barker, spoke of her recent marriage. As Members of this House from all three political parties, and quite possibly the Cross Benches, have done, she took advantage of the same-sex marriages Act that this House passed under the superb guidance of the noble Baroness, Lady Stowell—who could forget her descriptions of her relationship with George Clooney? Members of this House have taken advantage of that legislation and we congratulate them on their marriages.
I struggle with the idea that something that has been fundamental to my life—a marriage of 40 years—should not be available to colleagues who choose to love somebody of the same gender as them. I also struggle to understand why somebody who lives in Northern Ireland should be treated any differently from somebody who lives in any other part of the UK on their ability to marry and share their life with the person they love.
The amendment from the House of Commons was deficient in some ways, but the fundamental principle was that there should be equality in the law across the UK on or before 21 October 2019. What we have before us today gives effect to that. It was taken on a free vote in the House of Commons and it is a free vote, a conscience issue, in this House as well. It passed in the other place by a majority of 310. That is bigger than most majorities we get even in this House. In time-honoured way, what has fallen to your Lordships’ House is to tidy up the amendment that came to us, dealing with any technical deficiencies and the details and definitions. I am grateful to the noble Lord, Lord Hayward, Conor McGinn in the other place, and others who have worked on this.
In the other place, the Minister’s colleague the Minister of State for Northern Ireland, John Penrose, confirmed that he sympathised with the amendment, but said it had deficiencies. I will come on to those. He voted in favour of it, with that statement that it was both politically and legally impractical. The changes required are those that bring it in line with current England and Wales legislation and deal with the practicalities of when it can be delivered.
Consequential policy issues arose. For example, the original amendment did not address issues such as pensions, the conversion of civil partnerships and gender recognition. The replacement clause picks up on those and prompts the Secretary of State to consider them when making regulations. As has been heard in your Lordships’ House tonight, the original clause did not address issues related to freedom of religion and religious expression, allowing religious institutions to opt in, rather than being compelled to perform same-sex marriage ceremonies.
The Government—I hope the Minister will confirm this; I expect him to—and the noble Lord, Lord Hayward, have been very clear that any legislation relating to Northern Ireland will mirror the legislation already in place in England and Wales and will address the very concerns raised by the noble Lords, Lord McCrea and Lord Morrow. Extending the period in the legislation will give Ministers and their officials time for a little breathing space to engage with relevant stakeholders and get to grips with those issues. That is the right way forward.
We often refer to amendments passed in this House as a victory for common sense. With the majority of MLAs and Members of Parliament having backed the extension of same-sex marriage to Northern Ireland, tidying up this amendment to address the points and concerns raised is not just a victory for common sense but a victory for love.
My Lords, this is a historic moment. I am struck. Let me begin in an unusual way, with a quote from Sara Canning, the partner of Lyra McKee. She made a statement to Theresa May, saying that:
“I wanted her to know that Lyra and I had a right to be treated as equal citizens in our own country. Surely that’s not too much to ask?”
I am grateful to my noble friend Lord Hayward for tabling Amendment 11, and doing so in a manner which addresses the technical deficiencies in the initial amendment from the other place.
I have heard comments on a number of issues tonight. I do not make a habit of quoting scripture, but I will tonight; I think it is important to do so. I quote 1 Corinthians, chapter 13, verse 7:
“Love never gives up, never loses faith, is always hopeful, and endures through every circumstance”.
The majority by which the other place made its decision was quite significant—a majority that my party can now only dream of. It is a reminder that, had the Executive re-formed in the past, this matter would have been taken forward in Northern Ireland. That is the important part to stress, but we cannot overlook what has arrived from the other place.
I will touch on a number of the issues raised, because it is important to do them justice, but I will do this slightly the wrong way around. The noble Lord, Lord Morrow, raised the issue of religious protection and religious freedom. He is right to do so, because there needs to be an understanding among all faith-based groups in Northern Ireland that they will not be compelled to act against their faith, their religion or even their opinion.
However, I come back to how we seek to move this forward. The question centred around the words “may” and “must”. I need to drill down into that to make sure this is fully understood. The words “may” and “must” are not about the protections or the fundamental realisation of them. Article 9 of the European Convention on Human Rights guarantees the right to freedom of religion and freedom of conscience. That is not in doubt, not debated and not disputed, and will not be in any way eroded by anything we do here today—full stop. It is important to remember that all the legislation will comply with that and ensure we move that forward. Absolutely at the heart of this must be a belief in Northern Ireland that faith-based groups will not experience some sort of prejudice because they express their faith in fashions which do not recognise the situation today.
As the noble Baroness, Lady Barker, said only the other day, she would not wish to get married somewhere where she did not experience that love. Marriage is not a confrontation with other religions or an attempt to undermine them. Marriage is not an attempt to do any of those things at heart. It is, at heart, about love; that is the important thing we need to stress.
I thank my noble friend Lord Hayward for moving forward in this fashion. I commend his speech to the House; he has done most of the heavy lifting that I would have had to do. He has done justice to the task of addressing a number of technical deficiencies. It will be important to recognise how these will play out in Northern Ireland. This is an issue where we need to be as careful as we can be.
I need to stress that I do not have any concerns with Amendment 11 as now drafted. The dates in there will be a challenge—I put that front and centre—but we will meet those deadlines, by hook or by crook. I apologise to the officials who we will look to for this, but I am making that commitment. The reason the timelines are as they are is to recognise that this is not straightforward. When we looked at some of the aspects of same-sex marriage and civil partnership elsewhere in these islands, we recognised that they carried challenges to other pieces of legislation, which needed to be addressed. That is why we need a timeframe of nine months post Royal Assent. The amendment necessitates that we move faster than that. However, this is the truth of it, as we recognise some of the stumbles and challenges which have been experienced elsewhere in this kingdom and learn from them. It is important to draw on the experiences in Scotland, England and Wales, which should help us. Addressing the point made by the noble Lord, Lord McCrea, I say that it is important to stress that we are looking at an opt-in process. One would not be compelled to act against one’s faith or strongly held beliefs.
I am aware that this provision will not be welcomed in every quarter of Northern Ireland, just as it was not welcomed in every quarter of Scotland, England or Wales, but, as other noble Lords have said, time has moved on. It is time to move this one on. A message is being sent to Northern Ireland. I wish this had been done in Stormont; it would have been stronger had it been done there. I would much rather not be standing here doing it, but it needs to be done. We are acting on a very clear instruction from the other place, having recognised that the instruction required certain adjustments, for which we are very grateful to the noble Lord, Lord Hayward. On this basis, I hope that the noble Lord, Lord Morrow, will recognise that we are not seeking to undermine in any way the religious freedom or the conscience of anyone in Northern Ireland who holds a faith dear. I hope that the noble Lord, Lord Morrow, will not press his amendments, and that we can move forward with Amendment 11 tabled by the noble Lord, Lord Hayward.
My Lords, I have listened very carefully to what has been said around the House this evening. I thank all noble Lords who have taken part in this debate. It was remiss of me at the beginning not to thank the staff of the Bill office for their assistance. They have been very busy of late—I suspect they are busy all the time, and this is just a normal day for them—but they were very gracious and helpful.
Some noble Lords, including the Minister, have quoted other people. I had intended to say more, but I am not going to. I am not going to say his name, because he does not come from the same side of the political spectrum as me, but I want to quote one of our well-known politicians, known to everybody in this House:
“In Northern Ireland, we have a tendency to look at who is saying something rather than what is being said”.
I trust and pray that, tonight, your Lordships’ House will not be guilty of the same. It is my intention to test the opinion of the House on this matter.
The Deputy Speaker decided on a show of voices that Amendment 11A (to Amendment 11) was disagreed.
Amendment 11 agreed.
Amendment 11B not moved.
12: Clause 9, page 6, line 16, leave out subsections (1) to (4) and insert—
“(1) The Secretary of State must ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented in respect of Northern Ireland.(2) Sections 58 and 59 of the Offences Against the Person Act 1861 (attempts to procure abortion) are repealed under the law of Northern Ireland.(3) No investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those sections under the law of Northern Ireland (whenever committed).(4) The Secretary of State must by regulations make whatever other changes to the law of Northern Ireland appear to the Secretary of State to be necessary or appropriate for the purpose of complying with subsection (1).(5) Regulations under subsection (4) must, in particular, make provision for the purposes of regulating abortions in Northern Ireland, including provision as to the circumstances in which an abortion may take place.(6) Regulations under subsection (4) must be made so as to come into force by 13 January 2020 (but this does not in any way limit the re-exercise of the power). (7) The Secretary of State must carry out the duties imposed by this section expeditiously, recognising the importance of doing so for protecting the human rights of women in Northern Ireland.(8) The Secretary of State may by regulations make any provision that appears to the Secretary of State to be appropriate in view of subsection (2) or (3).(9) Regulations under this section may make any provision that could be made by an Act of the Northern Ireland Assembly.(10) In this section “the CEDAW report” means the Report of the 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 (CEDAW/C/OP.8/GBR/1) published on 6 March 2018.”
My Lords, I hope we can continue in a similar vein on this next set of amendments. I rise to move Amendment 12, and to speak to Amendments 19, 21 and 24, which are in the same group. Noble Lords who have followed this Bill closely will know that in the House of Commons, Clause 9 was carried by a majority of 332 to 99. Its purpose is to ensure that the human rights of women in Northern Ireland are similar to those in the rest of the United Kingdom on the matter of abortion. There was an overwhelming majority in another place for the rights of those women to be respected.
The reason was quite clear. As the noble Lord, Lord Trimble, has often reminded us, abortion is legal in Northern Ireland—but it is legal in some of the most restrictive terms in the world. Consequently, the ways in which some of the laws have been interpreted have meant that, for example, in the last year only 12 women have been able to have an abortion in Northern Ireland, and, as noble Lords will know, up to 1,000 women a year have to resort to coming to other parts of the United Kingdom—if they can afford to—in order to receive the healthcare to which they are entitled.
Last year, the Supreme Court ruled on abortion law in Northern Ireland, stating that the present-day legislative position in Northern Ireland was untenable, intrinsically disproportionate and clearly in need of radical reconsideration. The court also stated that the existing law was incompatible with Article 8 of the European Convention on Human Rights: the right to private family life. It was against that background that, in another place, the Member for Walthamstow, Stella Creasy, sought to insert into this Bill an obligation on this Parliament to ensure that all parts of the United Kingdom, including Northern Ireland, are compliant with the UN Committee on the Elimination of Discrimination against Women, which told the Government in February 2018 that abortion law in Northern Ireland breached human rights.
An amendment was put forward, the substance of which was accepted by the Government—but it was said that the amendment was deficient. Since the addition to the Bill was made in the Commons, there has been a process of discussion between the Government and those who put forward that proposal about how the expressed will of the Commons should be carried forward—and, in particular, what regulation-making process should now being undertaken in Northern Ireland be to implement that Bill. That has resulted in the amendments before your Lordships this evening: Amendment 12 and the consequential amendment.
Amendment 12 requires the Secretary of State to,
“ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented in respect of Northern Ireland”.
and that, crucially:
“Sections 58 and 59 of the Offences Against the Person Act 1861 … are repealed”,
so that women are no longer criminalised in Northern Ireland for seeking to secure an abortion. The amendment also says:
“No investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those sections under the law of Northern Ireland”—
because it is still the case today that women are being taken to court under these ancient laws, which have existed since before women had the right to vote, for seeking to secure access to healthcare, which they would be entitled to were they to live in the other countries of the United Kingdom.
The amendment also states:
“The Secretary of State must by regulations make changes”,
to the law that are necessary for all of those purposes. This process of making regulations has been the subject of considerable discussion, because the Minister, in his discussions and in his speeches to the House, has made clear that the Government feel themselves to be under an obligation to undertake extensive consultation on these matters. The people who have fought so long and so hard for women to have these rights are fearful that that might be taken as an excuse to frustrate the will of another place.
Let us be fair. To date, the track record of enabling women to access their rights has been far from good. So the discussions which lie behind this set of amendments are an attempt to find a way in which the Government can take forward the expressed will of the House of Commons and do so in a way which is timely and which allows necessary consultation—for example, with people in the medical profession, because it is recognised that this will bring about considerable change from what exists now—but does not allow the proposals to be dragged out to the point at which the will of the House of the Commons is effectively denied.
I have had many conversations with the Minister. He understands, I think, what this amendment is trying to do. He does, I believe, have a problem with the issue of the timetable; we may return to that. In moving the amendment, perhaps I may ask the Minister whether he might address some of the fears expressed by people who wish to see this measure come to pass in a timely manner. Could he assure the House that, if there is consultation on these matters, the substance of the consultation will not be whether women in Northern Ireland should have access to abortion services, but how and when they will have access to them? Can he confirm that, explicit within any consultation, from the outset, there will be a commitment that the human rights of women will be respected? In particular, could he confirm that no woman will be forced to declare that they have been raped at any stage in order to secure an abortion? That is a concern which has arisen from people in Northern Ireland who are trying to envisage how this could be brought to pass very quickly, but practically.
I also draw to the attention of the House the fact that the Criminal Law Act (Northern Ireland) 1967 requires medical professionals to disclose serious crimes. That has been used to require medical professionals to disclose that women are seeking to access abortion services. That compromises clinical judgment, so can the Minister say in any process of consultation that there will be a need to ensure that medical practitioners are no longer subject to the criminal law in a way in which they would not be were they to be practising their profession in any other of the countries of the United Kingdom. There are professional standards and regulations which govern the provision of services, to which they as professionals must adhere. It is not as though there were no criminal laws at all.
Finally, I ask the Minister: within the plans to consult on regulations made under this Bill, is there any intent to publicly consult on measures that would restrict the ability of women in Northern Ireland to gain access to abortion services?
I realise that this is a very contentious subject; anybody who has followed our debates so far will know that. But it is reasonable for noble Lords to be aware that those of us who have brought forward this amendment have done so following extensive consultation with people in Northern Ireland who have, for many years, tried to ensure that women there have access to services that mean that their human rights are no less than those of women in other parts of the United Kingdom. I realise that this subject may be slightly more complicated than that which we have just left, but I hope that the Minister and other noble Lords will join with me in seeking to expedite this, because women in Northern Ireland are in very grave need of change.
My Lords, forgive me for rising at this particular juncture, which I would not normally do; I will return to the wider debate once it has completed. I think it is important that I respond to the noble Baroness, Lady Barker, and her important questions and provide some information to the House that may inform the debate as we progress.
The noble Baroness asked several questions that I wish to give some clear answers to. The first was on the consultation—that it should focus on provision, not on law, enabling women to access rights, rather than restricting them. A period of consultation is the right thing to do and would ensure people in Northern Ireland and all relevant organisations can provide input and views. However, I want to be clear: consultation would not be on the question of whether this should be done, but only on how CEDAW’s recommendations can be implemented in Northern Ireland. As to the question of human rights compliance in the regulations, let me absolutely clear: in setting up the new regulatory regime and relevant non-legislative matters, we will comply fully with our human rights obligations.
To answer the question of how we would meet our requirements if we publicly consult on measures that would restrict access to abortion, any consultation will not be about restricting abortion. It will be about how, in practical terms, to establish a new regulatory regime that fully delivers on the CEDAW recommendations. I confirm that the Northern Ireland Office is clear that human rights commitments mean that women will never be forced to disclose rape and that a consultation will not lead to this. That is a very important question. The CEDAW recommendations set out that abortion must be provided in cases of rape and incest, but not how this should be done. This will need to be considered carefully, given the sensitive and distressing nature of these circumstances. In doing so, the health and well-being of women will be first, foremost and paramount in these considerations.
Reference to the Criminal Law Act (Northern Ireland) 1967 and the obligations on the medical professions is an important consideration. That is why in developing proposals to meet the CEDAW recommendations, we will give the most careful consideration to issues such as rape and sexual assault; and why it is important that we make these proposals in discussion with medical and other organisations, which understand and support women who have endured these horrors.
On the question of why consultation itself has to be carried out under Section 75, the equality duty under that section requires designated public authorities in Northern Ireland, including the Northern Ireland Office, to,
“have due regard to the need to promote equality of opportunity”,
in relation to the nine equality categories, and to the desirability of promoting good relations,
“between persons of different religious beliefs, political opinion”,
and racial groups when carrying out their functions in Northern Ireland. The Northern Ireland equality scheme notes that consultation is usually undertaken over a 12-week period but that in exceptional circumstances, it can be reduced to a period of eight weeks or less. In any case, our equality scheme requires us to consult on the equality impact assessment at the appropriate stage, so consultation in one form or another will be required.
We also undertake to ensure that consultations will seek the views of those directly affected by the policy reform: the Equality Commission, representative groups of Section 75 categories, other public authorities, voluntary and community groups and other groups with a legitimate interest in the matter. It is our strong preference that, given the significant reform Clause 9 seeks to achieve—creating a decriminalised and, instead, a medical-model regime for the provision of abortion services in Northern Ireland—we undertake a consultation period of between eight and 12 weeks. We appreciate that there is existing evidence supporting the type of case for reform; that includes legal judgments, domestic inquiries and international reports. But these do not set out a clear path forward that can be directly translated into regulatory and other measures. That is why consultation is required.
Generally, there is a strong argument for consultation in terms of making good public law and a reduced risk of future legal challenge, which I cannot emphasise enough. I am sure that my colleagues on all sides would agree that we must ensure that the reform is correct, for the health, safety and well-being of the women affected, and that it is appropriate to provide clarity regarding the safeguards in place for the medical profession. That brings up the conscience concept.
I can confirm that the Government will work expeditiously between now and 21 October 2019 to ensure that we take all possible steps to be ready to implement changes if the Executive are not restored thereafter—let me get that right: restored before. The whole thing could hinge there, so let me reread that sentence to avoid any dubiety. I can confirm that the Government will work expeditiously between now and 21 October 2019 to ensure that we take all possible, necessary steps to be ready to implement changes if the Executive have not been restored by that time.
If it is accepted that a consultation has to be carried out under Section 75, can I confirm that the substantive point will be how women will obtain access to abortion and not whether they should be able to do so? I want to be absolutely clear: consultation would not be on the question of whether this should be done but only on how the recommendations of CEDAW can be implemented in Northern Ireland. How will this be reflected in a drafting process and consultation? The consultation will make it explicit that we are consulting on how to deliver CEDAW recommendations most effectively, not on whether we should be taking forward this reform. We will want to engage with the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission to ensure that our consultation is drafted in the most effective way, to ensure targeted engagement on how we propose to proceed. I hope that this information is helpful to the House.
My Lords, I speak in support of Amendments 12, 19, 21 and 24 but if I may address what the Minister has just said, it was helpful that he clarified the position. I suspect it may well have shortened the debate significantly as well. I draw much comfort from the way he said that the consultation will not be about whether to do it but only how to do it. As I understand it, it will be about the details for giving effect to the wish expressed in the amendment, not about going back to first principles on whether one should move ahead. That is very important and I welcome it.
I am slightly puzzled by one point. The Minister explained why he wants a longer period for the consultation process on this amendment than he urged on the same-sex amendment. It seems to me that if one can do it on the same-sex amendment in a certain timeframe, one could also do it on this amendment. I wonder whether the Minister might clarify that. Having said that, I welcome the assurances he gave us and repeat: we are not looking at whether but how to implement. That is crucial.
I want to say one or two things briefly because the noble Baroness, Lady Barker, covered a lot of the points. Over the years, many of us have been lobbied and approached by women from Northern Ireland and, before its referendum, from the Republic who were desperate about the situation in which they found themselves. We heard the most painful stories of women who had to travel alone to Liverpool for an abortion, as they could not do it in the comfort of their own homes. We heard stories of doctors fearful of giving advice because of the criminal law, and the story of a mother who was subject to the law because she had produced abortion pills for her daughter. These are painful stories.
I should say that I am an active member of the British-Irish Parliamentary Assembly; indeed, I chair one of its committees. We have been looking at abortion and I wish I could give the House the full details of our report. We produced our committee’s report some time ago. It would normally go to the plenary before being adopted and going into the public domain. However, one DUP member of the committee did not like anything in the report, so we said to him, “Okay, produce an alternative version and we’ll publish it”. That took some time and the result is that although I have our report—in fact, I have his as well—I am not really at liberty to go through it in detail because it is not yet public property. It still has to go before the plenary of the British-Irish Parliamentary Assembly. That is proper, otherwise we would have an interesting report. Of course, that report may well be redundant by the time it is approved if all these measures go through.
However, we still discovered some useful things in producing the report. We talked about the human rights of women and the rights of healthcare professionals. We also talked about whether it should be illegal for doctors to give the advice that they can anywhere else in this country, and so on. I am afraid I am not at liberty to say more, except that we took a lot of evidence. We took evidence in Liverpool, London, Belfast and Dublin, so we got a broad range of opinions on both sides of the argument. I am bound to say that the majority of the committee were persuaded by the strength of the arguments, which are centred on this amendment. This is not something that has just come to me; it is based on a lot of the work that we put into the report, which will see the light of day before too long.
I repeat that I am grateful to the Minister for clarifying the position. I have one point to put to him. Ideally, I would like the timetable for this consultation to be the same as it is for the same-sex marriage consultation. If the Minister can clarify why one is longer than the other, I would be grateful. We look forward to a quick resolution of this terrible dilemma, which faces so many women in Northern Ireland.
My Lords, I think the House knows that I was the person who piloted the Abortion Act 1967 through the other place. I begin by thanking the Government, and this Minister in particular, for their readiness to respect the overwhelming vote in the House of Commons recently to bring the law in Northern Ireland into line. I was slightly puzzled by the fact that although the Government made the commitment to put right what they saw as deficiencies in the drafting in the Commons, that has not happened, and we have no government amendments before us today. Perhaps the Minister will explain why that is so. I am assuming that we will now go forward and that after the consultation there will be effective introduction of a statutory instrument. Presumably that is what the Government have in mind to change the law in Northern Ireland.
It is worth reminding the House that the 1967 legislation started in 1966, here in the House of Lords. I drew a place in the ballot for Private Members’ Bills and picked up the Bill that had already been passed in this House—it was this House that pioneered the legislation, not the House of Commons. Although we made substantial changes to the Bill, it started here and it is worth reminding ourselves of that. I shall quote something that I have quoted very often. Dr John Marks, when he retired as the secretary to the British Medical Association in 1992 after 40 years, said:
“Looking back over these forty years, it seems to me that the event which has had the most beneficial effect on public health during that period was the passage of the Abortion Act”.
That is a remarkable thing for a senior medic to say, but it is a tribute to this House that that happened.
Three things have changed substantially since the 1967 legislation, which I want to draw to the attention of the House. The first is that in 1967, in terms of the European Union, we were the pioneers in legislating for abortion. Other countries had not done it. One outcome was that, immediately after our law was passed, we started to get some traffic from other European countries. People were coming into Britain and Britain was being portrayed as the abortion capital of Europe. The press was full of stories about taxis at Heathrow Airport bringing women here. This was a great embarrassment to the Government at the time and, frankly, an embarrassment to me as the author of the legislation, but that is what happened. What has changed since 1967 is that the rest of Europe has changed its legislation and has in fact gone ahead of the 1967 legislation. Most European countries have based their law on it being a woman’s right to choose up to the 12th or 13th week of pregnancy. That is very different from the Abortion Act 1967.
I want to stress that a very important document that influenced me and a lot of people at the time was the Church of England report Abortion—an Ethical Discussion, by far the best treatise on the morality of abortion that I have ever read. It influenced my own church, the Church of Scotland and the Methodist Church and I think it influenced opinion in European countries as well. Most of their legislation is based on the belief or doctrine that the Roman Catholic Church put forward right up until the late 19th century, which said that the soul entered the body at the time of animation or quickening. That was the fundamental reason that the European countries introduced this law making a distinction between abortion up to the 12th or 13th week of pregnancy and thereafter. It is very different from the Abortion Act 1967, but it is a fundamental change. Now, of course, the latest country to join in is the Republic of Ireland, so Northern Ireland stands out quite distinctly as having no abortion at all compared not just to the rest of the UK but to the rest of Europe.
The second thing that has changed since 1967 is the composition of the House of Commons. It is very difficult for us to remember that back in 1966-67, when we were debating this legislation, there were only a couple of dozen women MPs in the Commons. One of them was the noble Baroness, Lady Boothroyd, who was in her place earlier today. She gave great support to the legislation, but there were only a couple of dozen women. Now there are a couple of hundred women, and that is why we have had this overwhelming vote in favour of changing the law in Northern Ireland. I pay tribute to the women MPs—Stella Creasy, Diana Johnson, Sarah Wollaston and Rupa Huq in particular—who have promoted this cause. It is a fundamental change since 1967.
The third change since 1967, perhaps the most significant, is the fact that in 1967 we were legislating on the only method of abortion, which was surgery. Now, of course, we have the two abortion pills and that has made fundamental difference to how abortion is treated. In Northern Ireland, because of the lack of law, we have had changes in the administration, first in Scotland and then in England and Wales, allowing women from Northern Ireland to come and use the NHS facilities on this side of the Irish Sea. More than 1,000 did so last year but, frankly, this is not satisfactory. We cannot expect every woman who requires or wants to consider an abortion to have the time and the money to travel across the Irish Sea to use facilities in Scotland or England and Wales, but 1,000 have done so. The fact that these pills are available on the internet but, as has been said, at some risk given the state of the law, has led to an appalling situation where people in Northern Ireland can buy the pills on the internet and run the risk of running counter to the law on abortion in Northern Ireland, which is the Offences against the Person Act 1861. That is why we are right to consider making this change now.
All the medical bodies support the change, including the Royal College of Obstetricians, the British Medical Association and the Royal College of Midwives. In recent weeks we have listened time and again to the fact that the people and politicians of Northern Ireland do not wish to see a statutory trade barrier down the middle of the Irish Sea, and they are surely right about that. However, what we have at the moment is a statutory social barrier down the middle of the Irish Sea, and that is why we are right to remove it.
My Lords, I have amendments in this group. I tabled a manuscript amendment, which I think, in light of the Minister’s comments, is probably not necessary. I did it because the sense from the Committee was that Northern Ireland should come into line with the rest of the UK and we should be dealing with a level playing field.
I did it also because the CEDAW recommendations go a little further than the current Abortion Act 1967, in which abortion is limited to up to 23 weeks and six days. After that, there is a requirement to report if an abortion has been undertaken for severe foetal abnormality, reported on the form HSA4, stating the grounds and the diagnosis, because that falls outside the remit of the current Act. I did it with the consultation listed, because I am aware that the medical workforce in Northern Ireland is already in a pretty critical state and anything that jeopardises doctors going into general practice and risks people not remaining in general practice further imperils the overall healthcare of the population there. I hope that people bear that in mind in terms of the time required for consultation.
I am grateful to the Minister and to the noble Baroness, Lady Barker, for having spent a lot of time discussing this with me. I also thank the noble Baroness, Lady Jolly, who is not in her place. There has been a lot of discussion about this. I am grateful to the noble Baroness, Lady O’Loan, with whom I have also had discussions. It is a credit to all of them that we have been able to have very open discussions about these complex issues.
I had a conversation with the president of the Royal College of Obstetricians and Gynaecologists, who said that I may quote her today. She has been involved in education programmes to help doctors and midwives understand. She pointed out that they need time, but that attitudes change when people understand how to implement and put the needs of the woman first. She would like the CEDAW changes to come in, because she and her college are in favour of them. However, the House needs to be aware that those changes go further than the current Act, to which the noble Lord, Lord Steel, spoke so elegantly just now and on many occasions over the years.
My request is to allow a longer time period. I looked up the data from 2018 for the number of abortions beyond 24 weeks in England and Wales. There were 289, but none proceeded to any prosecutions, as far as I could ascertain, so those regulations seem to be working well. I am aware, from having looked at the legislation and from conversations with other noble Lords, of the need to consult under Section 75 of the Northern Ireland Act, which the Minister has laid out so clearly. I hope that that may help to explain the background.
The other amendment that I have in this group is a simple requirement in line with the Northern Ireland (Executive Formation) Bill report from the Delegated Powers and Regulatory Reform Committee, which recommends that both clauses in the Bill should be subject to the affirmative procedure and that the use of the made affirmative procedure would ensure that the procedure did not undermine the requirement for the regulations to be in force by 21 October 2019.
I hope that the noble Baroness, Lady Barker, will accept this amendment to her amendment, which puts in the affirmative procedure. With that, I leave the debate to the rest of the House.
My Lords, this is a strange Bill, and it seems to get stranger as we go along. Clause 9, we were told, was not workable. As the noble Lord, Lord Steel, said, the Government indicated repeatedly that they were going to bring amendments which would remedy the defects in Clause 9. What we have now, I am afraid, is equally lacking in clarity, although it contains more subsections.
I will say at the beginning that this is not a Bill in a situation of grave emergency. There are no human rights judgments that require action by the Government in the absence of the Northern Ireland Assembly—and even if there were, there would be no obligation on us to act. We do not always act in accordance with the Supreme Court. I do not know how many of your Lordships have sat and read the CEDAW recommendations in this report. They are interesting, in part, because proposed new subsection (2) states that we will repeal Sections 58 and 59 of the Offences Against the Person Act, but it does not seem to deal with all the consequences of that. I will come back to that later. I look forward to hearing why there is no government amendment that would really put it right.
I will ask the Minister some questions about proposed new subsection (1) in Clause 9. Recommendation 85 requires the repeal of the Offences Against the Person Act. They require some form of legislation to enable abortion, and a moratorium on the application of criminal laws concerning abortion. What does this mean? Does anybody know what it means? It is obviously separate from the Offences Against the Person Act. What is the difference, and to which criminal laws does it refer? I wonder whether it refers to the Criminal Justice Act 1945, of which noble Lords will be aware, which prevents infanticide. Will the Minister tell me exactly what we are doing as we legislate to give effect to recommendation 85(c) on this moratorium on the application of criminal law.
There are many other issues in recommendations 85 and 86 which we are adopting wholesale. I am not sure whether all noble Lords are familiar with them. Some of them are a bit odd. One says that there must be access to contraception freely. In Northern Ireland we have something which possibly does not apply to the rest of the United Kingdom. We have free prescriptions for everyone. No mother, no matter her personal circumstances, is precluded from getting free any contraception that she requires.
I do not want to hold back your Lordships too much. Proposed new subsection (2) seeks to abolish the Offences Against the Person Act. Have noble Lords considered what this means and what they will vote for? It means the removal of all restrictions—as I understand it—on any abortion for any reason at any time up to 28 weeks. The most recent medical information which I have been able to find tells me that babies born at about 22 weeks of gestation had a 50% survival rate in 2008. Medical science has advanced considerably since then, so that even smaller babies are surviving. Will we have a situation in Northern Ireland, even for a few months, where abortion on any grounds, in any place, for any reason, without any protections is available? I suggest that that is not safe and I will come to the reasons why later.
It is not the law here, where abortion is available only up to 24 weeks. We know that about 30 babies a year aborted in that situation are born alive—presumably because some doctor failed to make sure that it did not happen—and they are left to die. I am not sure that Northern Ireland wants that situation, even for a matter of months. What will the regulations that give effect to proposed new subsection (2) actually do? We do not know. They may be very much wider than the laws which apply here. Is this what your Lordships want? The laws which apply here are now regarded by many as unsatisfactory because of the advances in medical science and the care of children.
There is no limitation at all on the scope of the regulations in Amendment 12. Although we do not know what the regulations will do, or how they will do it, we know that for months there will be no requirement for abortions to be performed in a safe place, and no legal protection for the freedom of conscience of practitioners—a huge issue for them.
I will not articulate all the defects, but perhaps I will give one more. In the situation which will result from Amendment 12, Northern Ireland will become a rather more perilous place, particularly for pregnant young women whose husbands or families want them to have an abortion for whatever reason when they do not have the time, space or capacity to say no.
Parliament is currently considering domestic violence legislation. Abortion is one of the major issues in the world today. It is a major issue here in the United Kingdom. Article 39 of the Istanbul convention—the convention on preventing and combating violence against women and domestic violence—requires us to have a criminal provision to prevent forced abortion and to deal with it as a criminal offence. The Offences Against the Person Act is used in that connection. For example, a man who wanted his wife to abort the baby that she was carrying was convicted under that Act of putting abortion pills into her drink to ensure that she would abort.
I am trying to say that I accept that noble Lords are well intentioned, but there are huge gaps in Amendment 12, which are dangerous for women in some ways. We have had 16 hours to look at the amendment; it should have taken much longer and we should have allowed proper consideration of these matters, in the normal manner. Even if your Lordships are still minded to ignore the Sewel convention and all the other issues relating to devolution, legislating for lacunae, as Amendment 12 does, is possibly irresponsible.
Brett Lockhart QC is a leading member of the Bar in Northern Ireland. He said that the absence of regulations between October and January would be legally chaotic and would have significant implications for quality assurance, et cetera. Moreover, the extent to which the current guidelines would have any impact on the new legal situation remains entirely unclear. Can the Minister assure us that there will not be legal chaos in Northern Ireland for months—and possibly longer if things go badly wrong in the process of trying to get this together? I ask noble Lords not to rush into legislating in this way. It cannot be said to be fit for purpose.
My Lords, in speaking to the suite of amendments in the names of the noble Baroness, Lady Barker, and her co-signatories, I want to engage with two points. The first relates to due process and how we must understand these amendments in terms of the broader approach adopted by Westminster to the Bill. The second relates to the impact of the amendments themselves. In approaching the amendments, we must remember that the Bill has become distorted as a result of our dispensing with constitutional due process. That was seen in the dispensing of scope and the insertion into a Bill of matters that should have been the subject of Bills in their own right—a Bill that was subjected to fast-tracking and without regard to the recent vote of the Northern Ireland Assembly.
The issue of scope is raised in the amendments but, to understand its significance, we need some context. It is noticeable that, in the other place, two amendments were laid that sought to change the law on abortion. Proposed new Clause 5 sought to create a new regulation-making power for the Minister with respect to changing abortion law in Northern Ireland. Proposed new Clause 10 required the Secretary of State to use powers already invested in her through Section 26 of the Northern Ireland Act 1998 to make regulations on abortion with special regard to our international obligations. The clerks ruled that both amendments were outside the scope of the Bill and should not be selected because they sought to change the law on abortion. The Speaker, however, caused great shock by dispensing with this advice and selecting proposed new Clause 10, although he did not select proposed new Clause 5. Although proposed new Clause 10 was not in scope, proposed new Clause 5 was more seriously out of scope in that it would have created a new, independent, free-standing regulation-making power with respect to abortion.
Proposed new Clause 10—now Clause 9—is actually more out of scope than it need be on account of its flawed drafting. Properly drafted, it should require the Secretary of State to make orders rather than regulations. Those orders could have been used to address problems that the Member for Walthamstow articulated when making her speech; for example, regarding prosecutions. Subject to the identification of suitable powers, orders could require a much more restrictive approach to prosecutions or police involvement and, on the same basis, the making of subordinate legislation to give colour and detail to such matters as information, detailing the circumstances in which the termination of a pregnancy can occur. Amending Clause 9 to bring it within the scope of the Bill would also have the benefit of giving the Bill more integrity because it would sit much better with the abortion requirements in Clause 3(8), which require that a review of abortion law in Northern Ireland be conducted and that proposals for changes in the law be considered. This is entirely incongruous with any attempt to read Clause 9 as introducing a radical change in the law.
On previous occasions, the Minister has said that this House has been given an instruction by the other place. It seems quite difficult to say that the instruction was clear. The clearest message from the other place in relation to abortion pertains to Clause 3, which was passed unanimously in the other place, whereas Members were divided on proposed new Clause 10. In this context, it would be more respectful of the Commons to tidy up its amendment by replacing “regulations by statutory instrument” with “orders” because, first, the democratically elected House has placed this matter within Section 26 of the Northern Ireland Act 1998. Secondly, tidying up the amendment would enable it to address difficulties, expressed by the Member for Walthamstow in moving it, with respect to matters like the role of the police. Thirdly, doing so would move us back towards the scope of the Bill. Fourthly, it makes sense to read the provision in this way if we are to respect the strongest abortion message from the House, which came in the form of unanimous support for the abortion provisions in Clause 3, which call not for significant changes in abortion law at this moment but for a consideration of the options.
In contrast, the amendments in the name of the noble Baroness, Lady Barker, break with scope in a much more radical way—more so than proposed new Clause 5, which was not selected in the other place. The idea that we could accept an amendment that seeks, through this Bill—whose purpose pertains to setting the date of an election—directly to repeal Sections 58 and 59 of the Offences Against the Person Act is extraordinary. It makes a complete mockery of any sense of constitutional due process or a rules-based approach to lawmaking. We must be deeply concerned about the precedents that would flow from this and the havoc that it would create with the way we make law. The amendments in the name of the noble Baroness would remove from criminal law all remaining protections for the unborn until 28 weeks’ gestation. This would permit abortion for absolutely any reason, including any kind of disability or gender, up to 28 weeks. It is curious that, in 2019, we should be presented with a proposal for abortion law reform based on a 50 year-old understanding of viability. Babies now survive at 22 weeks, as the noble Baroness, Lady O’Loan, said. The amendment would propel Northern Ireland from having the most restrictive abortion law in the UK to having the most liberal, not only in the UK but in the whole of Europe.
That a place whose democratically elected Assembly voted in 2016 by a clear majority not to change abortion law in any way—a vote which was right across the whole political spectrum—pending an inquiry into abortion in relation to fatal foetal abnormality, should have a regime imposed on it by parliamentarians from other parts of the UK where the abortion law would be more conservative, leaves me lost for words. It would result in women who were 27 weeks pregnant travelling from England to Northern Ireland to get abortions in our Province because the laws protecting the rights of the unborn in England would be stronger than those in Northern Ireland.
If we are interested in listening to the other place, this does not represent their intentions at all. When scenarios such as these were set out in another place, they were described by the honourable Member for Walthamstow as “myths to be dispelled”. If we are interested in fostering trust between the different parts of our union, this is not the way to go. I earnestly implore noble Lords who believe in respecting constitutional due process to reject these amendments.
I remember, and the noble Lord, Lord Empey, may remember as well, that many years ago, on Belfast City Council, when it was proposed that the Brook clinic be able to establish itself to give advice to young women on a range of issues, including where they might have to go for abortions, my own party was supportive of the clinic. Then two older, rather socially conservative unionist councillors stood up. I imagined that I knew what they were going to say. One of them was Alderman Tommy Patton, and the other was Councillor Frank Millar. Both were solid, working-class men with impeccable loyalist credentials. Both of them said the same thing. They said, “I have come back too many early mornings from the shipyard and from my work and seen young girls bleeding in back alleys. If the Brook clinic coming to Belfast makes sure that never happens again, I am voting for it”.
The situation has changed a great deal in many ways, but not in every way, and we are dealing with one of the ways it has not changed—the legislation on abortion. The mood on abortion, however, has changed dramatically in Northern Ireland, even since the 2016 vote in the Northern Ireland Assembly. Not only has the Supreme Court declared that the United Kingdom is in breach of the European Convention on Human Rights because of the position of Northern Ireland on abortion, but political party views have also changed.
It is true that the Democratic Unionist Party still takes the same position—indeed, a position upon which it imposes a party whip, which it is entitled to do. The noble Lord, Lord Morrow, will know that, as a former chief whip of the party. The position of Sinn Féin, however, has changed quite strikingly, because when there was a referendum in the Republic of Ireland it changed the position. It said, “No, we are going to impose a whip on our party members to say that, whatever their conscience—and they are entirely entitled to have it—as public representatives they should vote for a change”. What Sinn Féin wants, of course, is a change to harmonise the law in the north with the law in the rest of the island.
It is also the case that the position of the SDLP—the noble Baroness, Lady O’Loan, will know this because her husband was a representative of the SDLP—has changed in that, while the party maintains the same position as party policy, it has opened the door for members who are elected representatives to speak to their own conscience on the question. The leader and the deputy leader and other significant colleagues have decided that in all conscience they can no longer support the party’s position on this issue.
The Ulster Unionist Party has also allowed it to be a question of conscience, and the Alliance Party always has, although the overwhelming majority of members and elected members vote for abortion in reasonable circumstances when the opportunity arises.
The situation has changed in Northern Ireland. As I said on same-sex marriage, I do not believe that most people, including in the nationalist community, will look on legislation here as being an imposition from this side of the water. Many will look on it as a harmonisation of legislation between north and south. That is why I ask the Minister, when he speaks about consultation, to ensure that the consultation does not look just at how far there is harmonisation with legislation on this side of the water but at how far there is harmonisation with legislation in the Republic of Ireland. This is not an idle question, because one thing that has not been mentioned when there has been talk about young women having to come to this side of the water for abortions is that the Health Minister in the Republic of Ireland, when the referendum was held and the legislation was changed there, said that they were prepared to welcome young women who needed to have abortions to come across the border.
Those who live here have no idea what an extraordinary change of position that was. The idea that young women in the north might be going south for abortions is almost incomprehensible to those of us who grew up in Northern Ireland. It just shows how hugely the situation has changed. We need to facilitate that change of attitudes. It is not a question of people being forced to have abortions. It is the opportunity to do so when it is needed. It is usually a very painful business emotionally. It does not do for us to make it any more painful or difficult. That is why I support the amendment but ask the Minister to ensure that in the consultation it is not just a question of harmonisation within the UK but harmonisation within these islands.
I do not question that things have changed a great deal, but I do say to my noble friend on the Front Bench that the Commons do not send us instructions and our function is not to concur with them. They send us proposals for legislation, and they seek and consider our views on them, and our views are important. There is a momentum behind this proposal. It is driven by enthusiasm. It has an enormous backing in the House of Commons. But we still have a duty to see that it is fit for purpose.
What worries me, and should worry your Lordships, are all the things that the noble Baroness has just referred to as to how in some ways it will make things worse. It will allow children to be born who will then have to be left to die. I mention the most emotive of these, but there are many. It seems to me that we should not simply give in to a pressure to get things done quickly and do them wrong; we should do them perfectly. In my view, your Lordships should consider very carefully whether we should not adhere to our function and our traditions and take the time to ask the other place to consider whether in fact what has been shown to be wrong can be put right.
My Lords, as the noble Lord, Lord Alderdice, said, some parties have whips on the issue of abortion; some parties take it as a matter of conscience. I support the noble Baroness, Lady O’Loan, in many of the things that she has said.
The Minister said earlier that there appear to be many experts on Northern Ireland. I am not going to pretend to suddenly have become an expert on Northern Ireland. I want to touch on two things. One is my surprise that a Bill that was supposed to be about Northern Ireland’s Executive formation appears to have become a Bill that goes far wider—as the noble Lord, Lord Empey, said in introducing his amendments earlier—to matters of life and death. Clearly, Amendment 12 comes into that category.
On Monday the Minister told us that there was an instruction from the House of Commons. Like the noble Lord, Lord Elton, I was surprised to hear about this instruction. Given that we have a very clear indication from the Commons that they wish the issue of abortion to be brought into this Bill, and there clearly appears to be a view across the Chamber that any consultation should be on how, not whether, I have a set of concerns that I would like the Minister to address, many of which have been touched on.
The Minister said that the consultation will be completed by 31 October. We have three months. He is shaking his head. I was going to raise my concern that, if the consultation is being done over the summer, who is going to be consulted, how are they going to be consulted and is there adequate time? A related question is: if there were to be a general election and purdah, that would wreck any timing, so could all that be taken into consideration?
The amendment raises many questions. It would appear that it could allow abortion up to 28 weeks. While 22 weeks is perhaps the lower end of viability—the Minister is shaking his head again but if he can give an indication of what will be proposed it would be helpful. Is it expected that the laws will replicate in their entirety those in Great Britain? Will there be provisions on freedom of conscience? What scrutiny will there be? In line with what the noble Baroness, Lady Finlay, said, will there be an affirmative vote?
My Lords, I know that this debate is going on somewhat—I notice some faces that are dismayed that it is doing so—but I had an appointment tomorrow morning with a consultant in the Royal Victoria Hospital which I had to put off to be here for this debate tonight. Therefore, I do not think it is an inconvenience for people to deal with such an important issue as the life or the death of a child or to spend time debating it properly.
We must bear in mind that this Bill is being rushed through the House, as it was in the other place, and that there seem to be a number of experts in the wings who know what people in Northern Ireland think. The noble Lord, Lord Alderdice, told us how things have greatly changed. Yes, they have changed because the noble Lord has left Northern Ireland and come across the pond.
I am making no comment whatever. I had a long personal relationship with the noble Lord in the Northern Ireland Assembly—we spent many happy occasions together—and I am not making any personal aspersions on him. I am stating a fact.
Many noble Lords’ authority for much of what they have said is that the Northern Ireland Assembly voted for same-sex marriage and that a petition of concern was used against it, and that is the reason it was stopped. But it is amazing that they are not using that argument now. They are not appealing about what the Northern Ireland Assembly did in its last vote two years ago because it does not suit their argument. The Northern Ireland Assembly took a stance and, by a large majority, voted not to change the legislation. I wait for the Front Benches of both parties to say, “Let us listen to the Members of the Assembly. They made a decision and we have, as it were, a democratic authority to take this forward”.
The noble Lord, Lord Alderdice, mentioned my party’s policy and its members being whipped to vote for it. Without apology, let me explain why. It was because we put it in our manifesto. We put it before the people and they voted for us. I know it is strange for a party to actually stand by its manifesto—today it seems you say one thing to get elected and then do the opposite when you get elected—but I will not apologise, nor will my colleagues or my party, to anyone in this House for standing by the promise we made to the electorate and asking them, on the basis of it, to vote for us—and they did. They made us the largest party in the Assembly. I will take no lectures from someone who says, “We dismiss the DUP because they whipped their members to vote for it”.
The noble Lord, Lord Alderdice, said that the SDLP and Sinn Féin have changed. If the House believes that, why does it not agree with the statement in Amendment 16 that the Secretary of State must,
“consult individually with members of the Northern Ireland Assembly on the proposals of the regulations”—
ask them if they have changed their mind? This is being rushed through before they have the opportunity to say, “We have not changed our minds”. The majority of the elected Assembly are still standing by what they believed before. If this House believes they have changed their minds, it should support the amendment which allows them to be asked rather than make the decision before they are asked.
The 59th report of Session 2017-19 of the Delegated Powers and Regulatory Reform Committee on the Northern Ireland (Executive Formation) Bill is important. It states:
“Given the very wide-ranging nature of the powers, including the power to amend primary legislation, and the politically sensitive nature of the provisions, we firmly believe that the negative procedure does not offer an appropriate level of Parliamentary scrutiny and that the affirmative procedure should apply instead”.
that is on same-sex marriage or abortion—
“requires the Secretary of State to consult bodies and interests in Northern Ireland before making the regulations … However, we accept that imposing such a duty would be incompatible with the timescale for making the regulations”.
It then makes the recommendation:
“We recommend that both clauses should be subject to the affirmative and not the negative procedure”.
It then states:
“We find the Minister’s reason for retaining the negative procedure, namely that it was ‘the clear will of the House of Commons’, wholly unconvincing”.
That was not written by me or any of my noble colleagues but by the distinguished members of that committee. I ask Members of this House: do we dismiss them too?
The issues we have been discussing today have tremendous moral implications for our nation, especially in Northern Ireland. I am sad that, at a time when we need spiritual leadership, there is a Bench that is completely empty and its members are not present to give us that spiritual leadership on issues which have major moral implications for the people of the United Kingdom.
I trust I am not reading too much into it but, when the noble Baroness, Lady Barker, sat down, I noticed that the Minister was immediately able to read off detailed scripts to answer all the points that she raised in the debate. It is interesting that all the answers were immediately given rather than the Minister waiting for help at the end of the debate. It makes one believe that much of what we are going through has been carefully choreographed and all we are being allowed to do is to go through the motions of being able to speak. However, I am happy to have the opportunity to speak for the unborn child and to say that they have a right to live, and not to be told that they should die.
My Lords, I had not intended to speak but I would like to ask about two matters in the light of what the noble Lord, Lord McCrea, has said. Yesterday was my first sitting on the Delegated Powers and Regulatory Reform Committee, on to which your Lordships have kindly placed me. The noble Lord is right: the noble Baroness, Lady Finlay, and others mentioned the determination of our committee in not looking at the policy or the moral issues of the two clauses before your Lordships’ House but looking at the technicality of whether this is good legislation, and whether it is properly drafted and is not going to cause problems with existing legislation as we go forward.
On the question of the need for an affirmative rather than a negative resolution, as a member of that committee, and as that is our report’s main recommendation, I would be grateful if my noble friend the Minister would confirm what his view is of the committee’s report with regard to the need for an affirmative resolution. Perhaps he could also give some indication, in the light of that and his previous remarks about the legislation as drafted in another place, of whether he is minded to introduce government amendments in line with the recommendations of the committee, if only to correct what he himself has identified as flawed legislation.
That is a purely, if you like, techy contribution to this debate, because it seems to me, after 27 years in this building, in both Houses, that good legislation is our job—that is what we are required to do—and if we do not do it properly, there are consequences. It is not unknown for courts to ask, “What was the intention of Parliament at the time?”. There is nothing worse for a court case than not to be absolutely clear what Parliament intended when we legislated. That is what we are sent here to do, so we have to get it as technically good and as legally correct as we possibly can.
My second point to my noble friend the Minister is a more personal one. I am not against abortion, although I would certainly like to see the upper limit for abortion come down. I agree—I have seen 22 week-old infants in prem baby units survive, and it is time for an adjustment there. However, that is not the matter of this debate. I have heard one or two contributions tonight which I am not absolutely clear about, on this matter of 28 weeks in Northern Ireland. Can my noble friend confirm whether, if this goes through, it will be compatible with the rest of the country or whether in fact there will be some differential in Northern Ireland? The thought of 28 weeks fills me with horror.
My Lords, this is a conscience issue and a sensitive one and, certainly on these Benches, it is a matter for a free vote. Nevertheless, we are also faced with the fact, as the noble Baroness just said, this is not necessarily the ideal way to legislate on this issue. But we are not in an ideal situation: we have no Assembly, we have growing pressures for change, and we have the view of the House of Commons, which wants change. Therefore, effectively, these amendments are trying at least to move forward to implement the will to address the issue.
When one looks at the statistics of 12 abortions being allowed in Northern Ireland and more than 1,000 women travelling out, it is patently clear that there is an imbalance that needs to be considered, at the very least. It is not just the conscience issue; we are facing the basis of a probable human rights issue. We have had the guidance of our own Supreme Court that we could be in breach of the European convention, and there is a case that we are awaiting a judgment on, which might confirm that fact. As I have said on a number of occasions, if that is the case, the United Kingdom Government and Parliament will be obliged to ensure that we comply with the European Convention on Human Rights. It would of course be much better if it were done in a way that is managed by the elected representatives in Northern Ireland—that would be the preferred way to do it.
Finally, on the idea that those Members should be consulted individually, it seems that the best way to consult the Members of the Northern Ireland Assembly is for them to convene the Assembly and consult themselves. If that was the case, we would not have to continue with these amendments at all.
My Lords, the noble Lord ends on a note I would have started on. I think all noble Lords would far rather these decisions were taken in the Northern Ireland Assembly. Many of us, over many years, have supported devolution and campaigned for it, and some of us have been direct rule Ministers working towards establishing the institutions. The noble Lord strayed into another debate later when he talks about Amendment 16, which is not in this group. On that issue, the best way to consult Members of the Legislative Assembly is for them to sit and conduct their business so that they can take these decisions.
I shall pick up a couple of points from the debate. One was the issue of these amendments not being in scope. I have to say that my experience of the Table Office and the clerks of your Lordships’ House is that they are sometimes infuriatingly proper. I can think of many a discussion that my team and I have had where we insisted that something was in scope, but there was no way the clerks would shift if they said it was out of scope. I therefore urge your Lordships’ House to recognise that if we have an amendment before us, it is because it is in scope.
Perhaps I can help the noble Lord, Lord McCrea, on a point he raised earlier from my own experience as a Minister. He was slightly suspicious of the Minister—
I always thought that the scope of the Bill was articulated in its Long Title, which in this case does not refer to abortion. Therefore, I do not quite understand why there is such a rejection of the question of whether these are proper matters for the Bill.
I refer the noble Baroness to the Companion and the Standing Orders of the House: if an amendment is accepted by the clerks, it can only be accepted if it is in scope of the Bill.
I will try again to reassure the noble Lord, Lord McCrea, who sounded quite suspicious of the Minister. Drawing on my experience as a Minister, if I was responding to a debate, whether in Committee or on the Floor of the House, if I was going to be asked questions, I would always ask those who had them, “Can you let me know them before?” If you are to have an informed debate and make an informed decision at the end of it, you need to be able to answer those questions. That is something I do regularly for Ministers to this day when I speak at this Dispatch Box. If there are questions I want answers to, I do not want the Minister at the end of the debate not to have had time to find them—I want them during the debate. It was courteous of the noble Baroness, Lady Barker, to let the Minister know what those questions were so that he was able to inform today’s debate and let us know the answers. It is good practice and helpful to your Lordships’ House to have that made available to us.
On the matter itself, we have had a long debate about whether abortion is appropriate and whether people support or oppose it, and so on. That is not what is before us today. The House of Commons, on a free vote, as it is in your Lordships’ House, voted by 332 to 99 on an amendment to say that there should be safe and legal abortions for women in Northern Ireland, as there are in the rest of the United Kingdom. There is an obligation on Parliament to act, under international and domestic law, to assure such access to free, safe and legal abortions.
If we rejected this today, it would not cut the number of abortions at all. At the moment, as a result of the laws in Northern Ireland at present, we see over 1,000 women and girls from Northern Ireland travelling to England and Wales—and now, as we heard from the noble Lord, Lord Alderdice, to the Republic of Ireland. However, we also find—this is one thing that worries me enormously, particularly as technology moves on—that women risk their life and liberty by illegally buying abortion pills online, which they then take without any medical expertise or support, and they will often delay seeking care if there are any complications. In doing so, they risk their life and their liberty—they could go to prison. Today the Minister is trying to give effect to what was agreed in the House of Commons.
I will say something about the Minister’s comments in his reply to the noble Baroness, Lady Barker. His explanation of and reassurance on regulations was welcome. There have been concerns about this issue, and he dealt with it with enormous sensitivity. He will understand that some were sceptical about the reasons for having a longer timescale—the point my noble friend Lord Dubs made—than for same-sex marriage. I think he was clear, but can he reiterate any of the points on why that is the case?
We know that there are strong opinions on this and that this is a matter of conscience for everybody. Everybody in this House should respect that it is a matter of conscience for everybody, and we all have to abide by our conscience.
I listened carefully to the noble Baroness, Lady O’Loan, and there is some distance between us; we do not agree. As I pointed out, this is a matter of conscience and we should all respect other people’s views. We have to do what we believe in our own conscience to be right.
My Lords, I have a large number of pieces of paper. If you will forgive me, I will just assemble them into an order I can make sense of.
As it was at earlier stages, this has been an emotive and thought-provoking discussion. I spoke earlier to, I hope, help the debate to be informed. On choreography, I always welcome people giving me the questions beforehand, because it helps me work out the answers. It really is as simple as that; it is not collusion in any sense. It may well have been that I gave the noble Baroness answers she did not like, but the point was that I knew at the outset what the questions would be.
The noble Lord, Lord Dubs, began his contribution by asking why the length of consultation could not be the same for abortion as for same-sex marriage. There is a relatively simple explanation for that. On same-sex marriage, we have established precedent in England and Wales, and in Scotland, that can be built on in a straightforward manner. What we seek to do in Northern Ireland is quite different; there is no roll-across regime we can borrow from. As a consequence, the new elements of that will require a fuller consultation. We cannot equate the two consultations, because they seek to consult on quite distinct and different elements.
I welcome the thought-provoking contribution today from the noble Baroness, Lady Finlay. She raised the issue of conscience. I know that a number of Peers have been concerned about the conscience element. As I did during previous discussions, I stress again that the conscience element must be at the heart of this. We cannot compel any practitioner to act beyond their own conscience. We must make sure that that is understood in the guidance that will be issued thereafter to all those involved in this process; that is absolutely critical.
The noble Baroness, Lady O’Loan, raised a number of issues. If she will allow me, I will do my best to do justice to them. The first, which I think I touched on the last time we discussed this, was the Sewel convention. The important thing to recognise is that under normal circumstances we shall use the Sewel convention, but I do not think there is any doubt that we are not in normal circumstances. The Sewel convention in this instance will not apply.
The question that I suspect my noble friend Lord Elton, the noble Baroness, Lady O’Loan, and others will raise is that of what happens during that limbo period when we move away from where we are now but before we have brought into play the functioning abortion regime. It is important to stress that, although we are looking at the 1861 Act and the elements we shall remove from it, during this limbo period the Criminal Justice Act (Northern Ireland) 1945 will still apply. Section 25 will still apply; this makes it a criminal offence to destroy any life of a child capable of being born. That will apply during that limbo period, until we have got to the stage where we have the newly functioning regime.
There seems to be some discussion on this, but I have the answer to that as well. There is some debate on the exact number of weeks at which a foetus will be viable, but it is around 22 to 24 weeks. The important thing to stress here is that we are not repealing that Act, and there will be no period during which there will be any sense of an opportunity or free-for-all for that aspect to be in play. It is important to recognise that. We cannot have that misunderstood as we move through.
The Minister was talking about 22 to 28 weeks; then he said “the foetus”. A child born at 22 weeks who lives—that is happening; as a minister I have seen and visited many little ones born at that time—is not a foetus but a child.
In response to the noble Lord, I am a scientist. On occasion I will use scientific words, and on this occasion I just did. That was snippy. I am sorry; that was not my intention. Forgive me for that, but frustrations can come out in debates such as this.
As we look at these matters, it is important to try as best we can to be as sensitive as we can. I fully understand the point raised by the noble Lord. There will be a range of views across this House on these matters. It is right that we understand and respect those. As we move this matter forward, we seek to give effect to the legislation as it progressed from the other place. The important part that I need to stress—it is important for me to do so and be understood—is that the date within the Barker et al amendment, as currently drafted, would cause the Government some difficulty, because we would be unable to deliver the very consultation we have discussed within that timeframe.
I am sorry; I must be missing something here. Can my noble friend just explain to me why it is that if this amendment proceeds the timescale for the foetus is not the same as in the legislation in the 1967 Act? Foetal viability—whether it survives—is gauged only after the foetus is born and becomes a child. What does 22 to 28 weeks refer to? I have not been able to find it in any of the words on any of the papers available tonight.
It is important to recognise here that we are not discussing the 1967 Act at all, I am afraid. That will not be moved across in any way. Right now, we are looking at a new regime that will be constructed in Northern Ireland. In answer to the earlier question from the noble Lord, Lord Dubs, about why the consultation period is longer, were we moving across the 1967 regime we would, in truth, be able to do this a little more swiftly. We would be doing so on the basis of established precedent and rules that exist within the current scheme. However, we are not doing that. The instruction we received from the other place was quite clear.
There is this question about why there are no government amendments to move forward on this matter. The simple answer to that is that, at present, we have received an instruction from the other place—
Let me answer my noble friend Lord Elton. If we are not able to move it forward, it will not be just an instruction—he is quite right—but the law. That is different, because it will be the law that will move forward, and we as a Government will struggle with that deliver what we need, which is a safe and secure system that places women at its heart. We will not be able to do so in the time limit we have set out, and that is the reason we have a problem. My noble friend Lord Elton, is absolutely right: we are not talking about an instruction. This is a law that will come into force, which we will have some difficulty trying to maintain and will potentially allow itself to be opened up to further judicial interrogation and review. Ultimately, this will do a disservice to honourable Member in the other place who has tried to move this forward in the manner in which he has.
This is a minor point, in some ways, but it is fundamental. Nothing can be law unless both Houses agree to it, so while this is not agreed by both Houses and assented to by the monarch, it is a law in the making. I am concerned about the process here, as I referred to in an earlier debate. It is not desirable. In the light of that, in a fast-track process we must have clarity. This has been asked by various Members in this House: what is the guarantee that there will not be a case in Northern Ireland where a child—or foetus, if the Minister likes—is aborted after more than 24 weeks in the period after the passage of this law? What is the guarantee? What is the safeguard in law? What is the case law on the subject? Perhaps my noble friend the Minister will able to advise the House before Third Reading.
The challenge that my noble friend sets me is a difficult one. I cannot give a guarantee in that regard because I am not in a position to control the situation in Northern Ireland nor the medical profession. It is beyond my ability to do so. What I have said is that before we have been able to bring in the necessary elements of the new regime, there will be a period during which we will be bound by the established earlier Act from the 1940s which will give the confidence that we are not seeking to undermine in any sense the practice that has gone on there. But we have to recognise that during that limbo period, health practitioners, doctors and others will not be in receipt of guidance from us because we will not be in a position to draft that guidance by that point and that will be the reality that we will face. It is not one, unfortunately, that I can answer or offer or afford any guarantees on.
It might be helpful to the Minister to be aware that, in the Assembly of 2007 to 2011, the then Health Minister redid the guidance to give clarity to the profession. It proved not satisfactory to the profession at that time and work commenced on doing it again, but the mandate ran out before it was done. Perhaps it might be helpful if the Minister asked the officials to look that up because there is uncertainty and that is very disturbing. The guidance was the problem in the past. It is not that the Assembly never looked at the abortion issue because it did, but it did not succeed in getting agreement that was acceptable to the professions.
As someone who had to work with the guidance before the legislation came through— and this is for reassurance to colleagues—I know that the problem was that the medical profession had to work without guidance for a long time. What happened was that the guidance was introduced partly to satisfy—
I heard the noble Lord, if that helps, so I understand the point that was about to be made. I welcome that and appreciate it, as indeed I appreciate the comments from the noble Lord, Lord Empey. There is no doubt that, as the consultation process unfolds, these elements will be drawn on. We cannot simply ignore them.
It is important to ensure that the regime that we bring in to Northern Ireland is human rights-compliant—that is absolutely at the heart of this—and that within those human rights remain elements of conscience and freedom of expression which we also spoke of earlier when we spoke about same-sex marriage. The amendment would also see the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861, together with putting in place a moratorium against current and future investigations and prosecutions, which will decriminalise abortion in Northern Ireland, allowing terminations to take place where they fall within the framework of other existing protections and laws.
As this change will come in before the details of the new medical regulatory regime are finalised and that scheme is introduced, to mitigate the risk of abortions being carried out in circumstances that would fall outside the prospective regulatory scheme, we will ensure that appropriate measures are put in place, such as guidance issued by relevant Northern Ireland bodies, to provide legal clarity for the people affected and for the medical profession. Therefore, in answer to my noble friend Lord True’s point, our ambition is for this process to be recognised—and it will be a significant change—but to allow each step to take place in a carefully considered legal manner.
In putting in place the new regulations, it is only right that a period of consultation is taken forward, not on the question of whether this should be done but focusing on how it will be done and to seek views on the proposals for how best the recommendations of CEDAW can be implemented in Northern Ireland. That is our purpose. We appreciate that there is existing evidence supporting this type of case for reform, which we have spoken about before, such as legal judgments, domestic inquiries and international reports. We recognise those and have heard that case.
We will need to think very carefully about how we implement the CEDAW recommendations generally, including how we meet the recommendation to provide an exception in cases of rape and incest, which will require very careful consideration of the sensitive and distressing nature of these circumstances.
We will also consider all the necessary other amendments which may be required as part of the introduction of the new abortion regime. We will carefully consider the impact of Section 5 of the Criminal Law Act (Northern Ireland) 1967, including whether any amendments are required as part of the changes made elsewhere in legislation. The Government will work expeditiously between now and 21 October 2019 to ensure that all possible necessary steps are taken, but I return to the fact that I am still struggling with the ultimate deadline in the amendment. It is also important to stress at this point that our ambition is to try to realise this in a safe and secure manner for the women of Northern Ireland. That is the guiding point of this.
I was asked a question about abortions at 24 weeks. We can guarantee that no abortions will be carried out over 24 weeks. In this limbo period, it would be an offence under the 1945 Act as these would indeed be deemed to be viable, and would be children. I say that in response to the noble Lord, Lord McCrea. After the new regime, we would not introduce legislation that allowed later abortions than are taken in England or Wales. We would seek harmony.
I will attempt to be helpful. I think the focus on the 28 weeks comes from the Infant Life (Preservation) Act, which gave the number of weeks as that when we had the debates on the Act from the noble Lord, Lord Steel. As I understand from the Minister, the 1945 Act—which I am not familiar with—talks about viability and his solution to that problem was guidance that viability would have occurred by 24 weeks.
I thank the noble Baroness. That is very useful indeed. I ask my officials in the Box to remember that.
In drawing these remarks to a close, I am also conscious of the remarks about the affirmative procedure. I would be minded to accept that if things came forward in a fashion that would allow me to do so. As we are potentially at an impasse, I turn my attention directly to the noble Baroness, Lady Barker. We can discuss the date of the amendment before Third Reading in the hope that we can find that common ground. Returning to the question from the noble Baroness, Lady Finlay, I say that we may also be able to consider that as part of a common approach on the affirmative procedure.
I appreciate that this has not been an easy debate. I am fully aware—as a number of noble Lords have said—that this matter appears not to come under the title of the Bill. However, I return to the point made by the noble Baroness, Lady Smith, that these procedures have been deemed to be in scope. Indeed, I will go further and say that criticism of the other place in this regard is deemed to be out of order in this House.
The noble Baroness wants a piece of paper that has now become buried in the strata on my desktop. It is important that we now recognise the reality of the time we have. The holiday period primarily limits our ability to begin any serious consultation. We will have to design it carefully. We anticipate being able to initiate such a consultation in the early autumn. In an ideal world, we could see it being 12 weeks but we may be able to pull it forward to eight. We have to recognise thereafter that simply doing a consultation is not enough: we have to consider its elements. We are not able to deliver the outcome of that by the October date.
Oh, I have the piece of paper with the questions that the noble Baroness asked—forgive me. I think I will be able to answer the affirmative vote question, which we can take forward at Third Reading, if that is possible. The question of freedom of conscience rests within our human rights commitments, to which we remain committed. The guidance must be very clear that no doctor, health practitioner, nurse or anyone else will be compelled to act beyond their conscience or beyond their tolerance in that regard. She asked about events. I have no idea what is going to happen, but we must plan in a smooth and careful manner. I am not looking forward to any serious election issues; I hope that does not happen.
That touches on the answers to the questions, I think. On that basis, I look across the divide to the noble Baroness, Lady Barker, in the hope that she is willing to consider it.
My Lords, I thank all noble Lords—particularly the noble Baroness, Lady O’Loan—for their contributions. It is extremely important that we have discussed these matters in the fashion that we have. At this late hour, I do not intend to say anything in great detail. I thank the Minister for the very thorough way in which he has addressed questions from all sides of the House. He has managed to put to rest a number of fears.
There are just three matters on which I need to respond. The first concerns Amendment 19A in the name of the noble Baroness, Lady Finlay. In the light of comments—not least those of my noble friend Lord Steel—I hope that she will understand why it would be inadvisable to go ahead with her amendment, and I hope that she will not press it.
The second and key point, made by a number of noble Lords, was whether there would be an interregnum in which there would be no regulation whatever on abortion in the Province. The answer to that is quite clear: there will not be. Notwithstanding what the Minister has said about what the Government intend, there are the professional ethics of bodies such as the RCOG, the RCGP and the Royal College of Midwives. Those bodies have backed this amendment but they have professional standards to which they must adhere. There is also general guidance in general medical law which would be unaffected by any of this.
Thirdly, I say to the noble Lords who pointed out the anomalies between different Acts of Parliament in relation to 24 or 28 weeks that that makes the case for updating the law, and this is an occasion on which we could do so. I take the Minister’s point about his problem with the deadline in my amendment, and I hope that we might be able to discuss that between this stage and the next.
This is an important matter and we have had an important debate. I therefore wish to test the opinion of the House.
My Lords, because Amendment 12 is agreed, I cannot call Amendments 13 or 14 for reasons of pre-emption.
Amendments 13 to 14A not moved.
15: After Clause 9, insert the following new Clause—
“Regulations: procedure and supplementary 1
(1) Regulations under section 8 are to be made by statutory instrument.(2) A statutory instrument containing regulations under section 8 is subject to annulment in pursuance of a resolution of either House of Parliament.(3) A power to make regulations under section 8 may be used to make different provision for different purposes.(4) Regulations under section 8 may make incidental, supplementary, consequential, transitional or saving provision.”
Amendment 15 agreed.
16: After Clause 9, insert the following new Clause—
“Requirement for majority of MLAs to support regulations
(1) Before a statutory instrument can be laid in each House of Parliament under section 9 of this Act, the conditions in subsections (2) and (3) must be met.(2) The first condition is that the Secretary of State must—(a) consult individually with members of the Northern Ireland Assembly on the proposals of the regulations; and(b) lay a report before each House of Parliament on the outcome of the consultation held under this section, including the number of members of the Northern Ireland Assembly in favour of and against the regulations.(3) The second condition is that the relevant regulations under section 9 may only be laid before Parliament if a majority of the members of the Northern Ireland Assembly support the regulations as stated in the report laid before Parliament under subsection (2)(b).”
My Lords, in moving Amendment 16 I shall speak also to Amendment 16A. Amendment 16 is in my name and those of the noble Lord, Lord Trimble, and the noble and learned Lord, Lord Mackay; Amendment 16A is in my name and that of the noble Lord, Lord Morrow. In speaking, despite the result of the last vote, I make it plain that I intend to divide on these amendments.
Our amendments have a simple intention: to address the very real democratic deficit that underpins the Bill. As we all acknowledge, there has been no consultation with the people of Northern Ireland about this Bill. They have not had a say. While I accept that the Bill as originally drafted was necessary, it seems that the way it has been fast-tracked has had the unfortunate and destabilising effect of enhancing the democratic deficit which is so obvious when one reads the Bill, dealing as it does, in many cases, with transferred matters.
The uncertainty about all this is somewhat demonstrated by the vote we have just had. The reality is that we still have an Infant Life (Preservation) Act. It is not repealed by this Bill. Therefore, the period of 28 weeks to which the noble Baroness, Lady Hayman, referred is the period in that Act, and the Criminal Justice Act (Northern Ireland) 1945 makes that the offence. That is why the period will be up to 28 weeks, not 24 weeks. I accept that the Minister was unaware of this, but that is the situation. There is an awful lot of uncertainty around this Bill, as I said in my previous speech.
In normal circumstances, we would have had a minimum of 31 days to consider this Bill. We have had seven days since Second Reading and we received the final marshalled amendments today—I think I got the last one at 12.44 pm. I do not know how your Lordships feel, but I think it is very difficult to grasp the implications of the various amendments to this now very complex Bill. That is demonstrated by our last exchanges.
In my previous amendment, I focused on the provisions in this Bill that have the scope to change the law on abortion and same-sex marriage. I listened to your Lordships and decided to narrow my focus to abortion, for the simple reason that the Northern Ireland Assembly debated same-sex marriage and voted on it by a majority, and it was then blocked by a petition of concern. Given that the matter was effectively passed by the Assembly, I felt it was unnecessary to include same-sex marriage in this amendment.
However, it continues to be my view that abortion is a transferred matter which, having been rejected by a significant majority of the Northern Ireland Assembly in 2016, really should not have been dealt with in this very rushed manner. It does, after all, go against the advice of last week’s report from the Constitution Committee, which said:
“We reiterate our concern about the routine nature of fast-tracking legislation relating to Northern Ireland. It is constitutionally unacceptable save for exceptional and urgent circumstances”.
The letter to the Prime Minister, which I drafted with the noble Lord, Lord Eames, has attracted a remarkable response from right across what is sometimes described as “our divided community” that has been extraordinary to see. More than 19,000 people have now signed the letter to the Prime Minister. That would be the equivalent in England, Scotland and Wales of half a million people responding over the weekend, which I do not think has ever happened. We are asking the Prime Minister to withdraw the Bill—because of the uncertainties demonstrated in your Lordships’ House and to which I have referred, and because it is such significant law—or, at this very late hour, to support Amendments 16 and 16A.
In proposing new Clause 10 in another place, on abortion, which became Clause 9 in our Bill, I am conscious that the honourable Member for Walthamstow spoke of the importance of devolution. She said:
“New clause 10 is carefully crafted to respect the fact that, at the moment, we do not have an Assembly. If there were an Assembly, it could step in and deal with the criticisms that have been levelled at us”.—[Official Report, Commons, 9/7/19; col. 182.]
Although the Assembly is suspended, and we do not have an Executive, we still have 90 Assembly Members. Without in any way changing the amendment tabled by the noble Baroness, Lady Barker, our new amendment provides a means whereby it can be given effect in a way that better demonstrates respect for devolution, which, as the honourable Member for Walthamstow says, is important. It also demonstrates respect in this House for the constitutional integrity of Northern Ireland.
This is democracy. I believe passionately, as do 19,000 others—and the number is growing all the time —that if Northern Ireland is to be treated with respect on this important devolved matter, MLAs must be given a say. If noble Lords turn their back today on the 90 MLAs, and deny them this rule, they will effectively be saying, “Let’s go back to direct rule”. As someone who lives in Northern Ireland, let me tell the House that the people have no wish to go back to direct rule.
The Minister talked about consultation, initially in terms of Section 75 of the Northern Ireland Act, the equality consultation requirement. That is a statutory requirement. The Government have no option; there has to be a Section 75 consultation. All the policies and everything else will have to be Section 75-proofed. The Minister indicated a much wider consultation.
I have so many questions about this Bill that we need to consult about. It is not just about what your Lordships are proposing. Amendment 12—now new Clause 9, I guess—is completely lacking in detail. I do not know what abortion law will look like when your Lordships are finished with it. I do not know whether it will be like Irish law, which is drafted, so the Government of Ireland have said, to limit abortions in most cases to 12 weeks, or whether it will be like your Lordships’ legislation, the Abortion Act, which allows abortion up to 24 weeks, and allows the abortion of people with a disability right up to birth. I do not know what your Lordships are proposing to impose on the people of Northern Ireland. That is a very important deficit in what is being put before the House today, and the product of a very rushed process.
We have MLAs and we trust and vote for them; it is imperative that the Bill is the subject of some negotiation with them. I think the House knows, having listened to this debate, that far too many questions—what the time limits could be, how that could work, what the impact of doing this or that would be, how the royal colleges will respond and how we would provide—remain unanswered. This is not, in my experience, how your Lordships normally make legislation—in a way that precludes proper consultation. There are fundamental principles of constitutional law at play here.
I want to take your Lordships to two homes just very briefly. In the first are a couple who are very happy and expecting their first child. They are told that the child has Down’s syndrome and they are counselled to have an abortion. They have that abortion, grieving desperately that they must have it, but do not feel they could manage a child with Down’s syndrome. Having had the abortion, they are then told that the child did not have Down’s syndrome. It happens. The second home is that of a friend of mine who was told that their baby had anencephaly. Again, abortion was counselled. They did not have that abortion. They decided they wanted to bring their baby into the world, say hello to it and keep it safe for as long as possible. When their baby was born, it did not have an anencephaly. The science—and the way the Abortion Act happens in England and Wales—is not perfect, and we need to think very carefully about what we are doing and why we are doing it.
Most of your Lordships come from England, Wales and Scotland. There are a few of us from Northern Ireland, but we are very few in your Lordships’ House. Your Lordships live in jurisdictions with more conservative laws than would be suggested by the recommendations in paragraphs 85 and 86 of the CEDAW conventions, so I looked at what your Lordships and Parliament have done in the past. What are the moments now regarded with profound embarrassment? One, I found, is the imposition of the poll tax on Scotland before the rest of the UK, even though everyone knew that opposition to the poll tax in Scotland was particularly strong. Possibly the best example was when parliamentarians from the rest of the UK imposed a Bill on Wales, against the opposition of practically every Welsh Member of Parliament—just as was the case in the House of Commons last week—and quickly created the Tryweryn dam in the early 1960s to provide water for Liverpool. Both instances became driving forces for nationalism—think about that in the context of Northern Ireland—and are now regarded in Westminster, I believe, with some embarrassment, and public apologies have been issued.
I do not think your Lordships want to author a similarly black moment in the history of the union. That can all be redeemed by voting for Amendments 16 and 16A. I commend the amendment to the House with my three parliamentary co-signatories and my 19,000-plus compatriot co-signatories. This is an amendment that we cannot allow to pass unamended—the stakes are too high. I beg to move.
Amendment 16A (to Amendment 16)
16A: After Clause 9, after subsection (3) insert––
“(4) Section 9 comes into force on whichever is the later of––(a) the date prescribed in any other provision of this Act; and(b) the date on which the conditions in subsections (5) and (6) are met.(5) The first condition is that the Secretary of State must—(a) consult individually with members of the Northern Ireland Assembly on the proposed repeal under that section; and (b) lay a report before each House of Parliament on the outcome of the consultations held under this section, including the number of members of the Northern Ireland Assembly in favour of and against the proposed repeal.(6) The second condition is that a majority of the members of the Northern Ireland Assembly support the proposed repeal as stated in the report laid before Parliament under subsection (5)(b).”
My Lords, I have put my name to Amendment 16 with a good deal of consideration. First, when the Bill was introduced by the Government, it was absolutely plain that its scope did not embrace either same-sex marriage or the abortion provisions. In that situation, it was also introduced as a Bill that required dealing with by a very quick procedure.
We have already dealt with same-sex marriage, which was already passed by the Assembly at Stormont, but this provision is quite different because it was dealt with by the Assembly at Stormont and voted against. Our friends from Northern Ireland—the noble Lord, Lord Alderdice, for example—have assured us that things are different. I was honoured to be a Minister in Northern Ireland for 10 years, but that was rather a long time ago. I have no doubt that things have changed quite a lot in a number of ways, including the fact that I no longer have any responsibility for it.
It is extremely important, to my mind, that the constitutional situation in Northern Ireland is taken into account. If the Bill had been introduced in such a way that this was already a subject within it, even if it was quick that would be something. But the Bill was introduced to the House of Commons as one that had to be dealt with quickly for the executive functions of Northern Ireland to continue. This subject matter is well outside that scope. What has happened since is that the House of Commons has introduced, voted on and supported an amendment to deal with abortion in Northern Ireland, which is important and, of course, has human rights connections and consequences. So far as I am concerned, the scope of the Bill has therefore been altered by the House of Commons. It already had that provision in it when it came here. It is therefore not surprising that our clerks took the view that the scope of the Bill now enabled the amendment of the noble Baroness, Lady Barker, to be tabled and voted on.
In my submission, it is vital that we know that the present Assembly, or the Members elected to serve in it, will be content with the ultimate decision reached by the Government as a result of the consultation that the Minister indicated is to be undertaken. No doubt in the course of that, they will be able to find out a good deal about the present views of the Assembly Members. I expect the consultation will do its best to secure the agreement of those Members. As the noble Baroness, Lady Smith of Basildon, said, it would be better still if the Assembly were to meet but my understanding is that it is not in our power to arrange that. What we can do is to require that the consent of its Members is obtained. I have little doubt that any kind of reasonably flexible consultation will take full account of their views. I would hope that it resulted in an agreement by its Members, at least by a majority, in favour of the ultimate regulations.
This is not so much about the subject matter of the Bill, so far as I am concerned, except that it is outside its original purpose. The matter is also in a Bill that our Constitution Committee strongly recommended should not be dealt with by this method. These are very important matters. Should regulations be created in this way for Northern Ireland without every possible respect being paid to the attitude of the people of Northern Ireland to this subject? I have received a very large number of emails and other communications suggesting different points of view on this matter. Not all have been in one direction, but most were against doing anything about this. That is not why I support this: it is because I believe it essential that the devolution settlement should be observed as far as we possibly can. We cannot make the Executive meet, unfortunately —that is a matter that they have to agree—but we can secure their point of view on this important matter and I strongly support this amendment for these reasons.
I sincerely hope that that will not happen: that is the reason we have put it on the basis of the majority being in favour of the change. If we were to ask them and they were against it, that would be a real slap in the face for devolution. I have enough confidence in the Government’s consultations, and I believe the result would be so reasonable, that I expect the majority of the already elected Members of the Assembly to support this. Otherwise, it creates quite a difficult situation so far as devolution is concerned. We still have devolution—devolution to Northern Ireland is there at the present moment, it has not been withdrawn—so I think it is right to acknowledge and hope that the result of the negotiations and the regulation will be acceptable to the Members of the Northern Ireland Assembly.
My Lords, throughout this evening, in all our debates and the important decisions that have been taken according to our custom and the way we work, there has been, like in a theatre, a backcloth to everything we have done. I believe that even at this late stage, referring to the words of the noble Baroness, Lady O’Loan, we need to put on record what has been clearly exposed tonight: that we have been rushing through matters of supreme importance to the country from which I come. Our representatives feel very deeply that the questions being asked tonight, although they cover very important issues such as abortion and same-sex marriage, were not what we were really questioning. What we were really questioning tonight was the theory of devolution, which from its infancy was geared to give us, within the United Kingdom, the local relevance and integrity that we hoped would emerge. So, in supporting the noble Baroness, Lady O’Loan, at this late stage, I suggest to the long-suffering Minister that he take back that which I refer to as the tapestry, which in fact surrounds everything we have experienced in the Chamber today. What is being asked about devolution, and how can we correct it?
My Lords, turning back to look at the Bill, one should remember what its purpose is. It was to put provisions in place to enable an Executive to be formed. Under existing legislation, there is a period of time in which that has to happen. It is then a question of prolonging that time. Essentially, the Bill was providing more time for this.
There was no surprise about that. This is the fourth or fifth time that there has been a need to provide legislation. People knew that this was going to come and, from the way in which the talks are taking place between the parties in Northern Ireland, they would have had a fair idea of the likelihood of carrying this legislation. There was nothing urgent about it. Nothing surprising had to be done. There was the possibility of putting the legislation into motion at an earlier stage. If someone then came along and tried to hang additional things on it, there would be time to consider them properly.
We have not had the chance to do that. When one considers the matters that have been looked at today, and compares that to what would have happened if, instead of being a Bill relating to Northern Ireland, it was a Bill relating to Scotland or England, would it have been handled with the same speed, without looking carefully at what the problems might be? There was no serious concentration. We had a Committee stage, but it did not function as a normal Committee, as we can see by the limited number of things that were mentioned.
It was not proper legislation and there was no justification for handling it in that way. With more time, we might have had better debates and been able to tease out some of the things that were causing even the Minister difficulty to work out. Noble Lords will notice that what I am saying has been said repeatedly by Committees of this House: this procedure is flawed and ought not to be followed again. I wonder if there will be any change or if we will just plough on, hoping that an Assembly or Executive are formed and scrambling at the last minute to put them together.
In the course of this debate, noble Lords have referred to devolution and their desire to see it restored in Northern Ireland. If devolution does function again, it would mean that our 90 Assembly Members would be able to return to Stormont to discuss and debate things and consider what they are doing. However, they cannot do that as things stand. Assembly Members themselves cannot form the Administration. Legislation would need to be enacted if Westminster wanted immediately to bring the Assembly into existence for some limited purpose. Some of us have suggested doing that, but I have not seen any willingness on the part of the Government to encourage the Assembly to function even on limited matters.
A very limited consultation is suggested here. It says that the Secretary of State must,
“consult individually members of the Northern Ireland Assembly”.
That is set out in a very bare way. Nobody has talked about the details of the consultation or how thorough it would be. It simply refers to speaking to Members of the Assembly and to considering and reporting on their views. That is a very small step to take in finding things out. I do not know what the outcome will be. The noble Lord, Lord Alderdice, spoke vigorously earlier about the changes of views that he has detected. If that is the case, no doubt it would be reflected in the views that Assembly Members would give to the Secretary of State if she phoned them up and asked them what they think. It would be an easy step to take and it might help to restore some of those Members’ self-respect. People do not appreciate just how traumatic their situation is: they were elected to serve in an Assembly but are unable to do so, and they have nothing else besides general activities to turn their hand to because they have no way of influencing the powers that be.
This is a modest measure to try to get a degree of consultation. Of course, the Minister spoke earlier about consultations on particular matters being conducted over several months. In that timescale, he could easily get in touch with the 90 Assembly Members, see what their views are and let us know. That would be a good step forward, coming as it does at the end of the evening.
My Lords, I will make three brief points. First, if I were a better historian, I would be able to tell your Lordships when the parliamentary procedure that brought the Bill to this House in this state was more or less outlawed. It was called “tacking”: the Government would bring in a Bill and the Opposition would let it pass only if they could stick on other things that had nothing to do with it. That is what has happened here; it should not happen again.
Secondly, what emerges from this is that it is urgent to get the Assembly sitting again. I hope that, behind the scenes—they are certainly not doing it in front of us—the Government are straining every nerve and sinew to persuade Assembly Members to get together and do their job. One obstruction to that is the Good Friday agreement itself; perhaps, timidly but carefully, we should start looking at whether it can be amended without cataclysm.
Thirdly, it is clear that there is a total democratic deficit in what is being proposed. The noble Baroness, Lady O’Loan, her two co-signatories and the 19,000 signatories of her letter all propose that, even if they do not get together, Assembly Members should for once express the views of the Province, to great betterment.
My Lords, I wish to add brief words of support. It is a disgrace that this steamroller legislation is going through the House. It is quite appalling and it must never happen again. It is not about direct rule. We do not have devolution. What the noble Baroness, Lady O’Loan, and her two co-signatories propose is very simple. Time without number, I have advocated calling the Assembly together. All the Assembly Members could be invited to Stormont and seen individually by the Secretary of State and her fellow Ministers within the space of a single day. That would be something, at least.
Analogies are never exact but the noble Baroness was right to refer to the poll tax. I happened to be the chairman of an art gallery in Edinburgh at the time of the poll tax; I went up there every month for two or three years. I was one of two Conservatives to refuse to vote for it in Scotland; I am always proud of that because it was an appalling way to legislate. This is even worse. I will support the noble Baroness’s amendment for that reason.
My Lords, I speak in defence of the amendment in the name of the noble Baroness, Lady O’Loan, to which my name is attached. Since the commencement of this debate at around 4 pm today, I have received some 500-plus emails on this issue. I suspect that I am not unique in this respect. I suspect that others are finding the same response, and I think that this demonstrates that people are exercised, and there is real concern about what your Lordships’ House does this evening.
The way in which this Bill has been handled, the way in which scope has been dispensed with and the way in which huge issues have been inserted into a fast-track Bill designed for completely different purposes is deeply distressing to many people in Northern Ireland. When this Bill entered your Lordships’ House we expressed huge concerns about the way in which scope had been dispensed with. This problem has been massively compounded by the events tonight and the passing of the Barker amendment.
We are now looking at a situation where abortion is legal up to 28 weeks, while in GB the limit is 24, for any reason, including disability and gender, so we will have imposed on us a definition of viability that is 50 years out of date, a situation where abortion clinics will be able to set up in Northern Ireland from the end of October, and people in England will be able to travel to Northern Ireland to get abortions that are not available at home.
Does this House really want devolution? Do we want to give it any chance of success, or are we saying, through our decisions here tonight, that we would prefer that devolution did not exist? I suspect that that is the interpretation that many will put on it. It seems that this House wants direct rule. If the answer is no, then the case for Amendments 16 and 16A is simply overwhelming. How, in a context where we have 90 MLAs, can we change a key area of devolved policy over their heads when we have the opportunity to engage them?
Despite the fact that we are now in the school holiday season in Northern Ireland, with many people away, the letter of the noble Baroness, Lady O’Loan, has gathered some 19,000 signatures. That represents a UK population equivalent of more than half a million. That could not be overstated. I know that the noble Baroness, Lady O’Loan, has already made reference to that, but I make no apology for repeating it.
Of all the amendments that we discussed today, many of which are dominated by people who do not come from or represent Northern Ireland, let us be very clear, this amendment has more co-signatories than any other, thousands of them, and almost all come from Northern Ireland. It will be very important to reflect on the message that will be sent today if noble Lords vote against this straightforward amendment.
What will we be saying to the people of Northern Ireland? What would Parliament be saying to you if, by virtue of parliamentary arithmetic, it was able to impose something on your part of the UK, and despite being given the opportunity to give your elected representatives a say, chose not to do so?
I am aware that some say that engaging the Assembly is not relevant because it is not a matter of votes but of human rights. That argument, however, simply does not stand up to scrutiny. Of course, human rights are engaged, but the idea that they trump consideration and sweep away all others is ultimately a recipe for replacing parliaments with courts. The truth is, as the Supreme Court has made very clear, there is no general international human right to abortion, so the debate is not with me on that issue but with the Supreme Court.
Moreover, on CEDAW specifically, the expert legal opinion of Professor Mark Hill QC is very clear that the pontifications of the CEDAW committee are not binding and that the CEDAW convention does not even mention abortion and does not have standing to read it in. Lest anyone should say I do not care about human rights, I care about them passionately. I am not sticking my fingers in my ears and saying that there is not a human rights discussion to be had here. That is not the point I am making. The Supreme Court may issue a declaration of incompatibility on one very narrow aspect of our law as it relates to abortion and babies with very serious disabilities. In 2016, when the Assembly voted not to change the law in any way, it did so pending an inquiry on fatal foetal abnormality, which was published after suspension and recommended legal changes narrowly on this particular point.
The idea, however, that amendments passed tonight are the answer to that problem is absurd. These changes open up abortion for any reason up to 28 weeks. There is no case for that in any binding, proper, international legal instrument. In fact, the Supreme Court has indicated that Northern Ireland’s abortion law is compliant with international human rights obligations in relation to disability generally because there is no human right to abortion on the basis of disability. The idea, therefore, that Northern Ireland has to settle for this approach to abortion because of human rights is plainly wrong.
Some people might like to adopt an approach to human rights that says that this is necessary, but it is not mandatory. In this context, if we are serious about breathing confidence into devolution and respecting Northern Ireland, we must engage MLAs as proposed by these amendments. If the Supreme Court makes a binding declaration or if there are other human rights developments that necessitate a legal change—indeed, if there are any other developments that necessitate a change—the Northern Ireland Assembly is capable of making those changes.
In this context—particularly given the manner in which Northern Ireland has been denied constitutional due process hitherto in terms of the dispensing of scope and the insertion of major issues in a fast-track Bill on the decision to move Northern Ireland from having the most restricted abortion law in the British Isles to having the most liberal, such that it will make the laws of the home jurisdictions of those who press these changes on Northern Ireland look conservative—it is only right that, first, before any repeal of primary legislation is agreed MLAs are consulted, and if a majority agree, repeal can proceed; and, secondly, draft regulations are sent to MLAs and, if they agree, that again can be laid before Parliament.
I urge noble Lords to vote for devolution and to support these amendments.
My Lords, I find this disappointing. I thought that the point made by the noble Lord, Lord Morrow, was the subject of the previous amendment but, never mind, we occasionally stray from one amendment to another.
Let me deal with the substance of it. If we were talking, as the noble Lord, Lord Cormack, has on previous occasions—although not tonight—about making use of Members of the Assembly to make general comments about policies in Northern Ireland, we would be in a different place. However, what we see today, under the pretext of giving the Assembly a new lease of life, is the picking out of one issue in the Bill and saying, “That is the way in which we should move forward”. If we want Members of the Assembly to be consulted, they should be consulted over the whole range of policies, rather than us picking the one policy which noble Lords do not like and saying, “We will proceed on that basis”. This is the wrong way to go about it and the principle of consulting the Assembly is negated by wishing to do it only in this partial sense.
We have already discussed the previous amendment and voted on it. I understand that feelings are strong—I respect them even if I do not agree with them—but it is quite inappropriate at this stage to deal with this sort of amendment. If Members of this House want to bring the Assembly back in some form another, let us talk about it—let us do it properly—not pick on abortion as being the pretext for doing it.
The noble Lord will of course have in mind that the Assembly voted in favour of same-sex marriage. However, that is singled out, simply because the Assembly voted against it before. Therefore, if we are to respect devolution, in view of the suggestions that things have changed completely, it should be given a chance to say so.
I am afraid that I do not follow the thrust of that argument. We are talking about something that we talked about in the previous amendment. I am saying that we should not talk about giving the Assembly the powers on one issue; there are other issues in the Bill but nobody has suggested that we talk about those. In any case, I believe that the situation in Northern Ireland has changed quite a lot. I do not like bandying public opinion polls around, but the latest figures I have from the 2018 Northern Ireland Life and Times survey, which is equivalent to the British Social Attitudes survey, are that 89% of people in Northern Ireland believe that women should never go to prison for having an abortion, 82% believe that abortion should be a matter for medical regulation and not criminal law, and 71% believe that it should be a woman’s right to choose whether to end her pregnancy. I believe the situation has changed, and we cannot simply say, “The Assembly did that some years ago”. The argument in this amendment was that we should consult Assembly Members now; I say, not if we are dealing with one issue only. We should consult them on everything and bring them back to life that way. I am sorry, but I am not happy about this amendment; it is simply time to have another go at the previous amendment.
My Lords, I will speak in support of Amendments 16 and 16A. We have already heard how understandably upset the people and the politicians of Northern Ireland are at not having been consulted about our imposing massive changes on them on such hugely sensitive issues. But what we have not heard are the views of disabled people in Northern Ireland. For the simple fact is that, if the Bill becomes law, human beings in Northern Ireland with conditions like mine will suffer the death penalty for the crime of being diagnosed with a disability before birth.
I asked my noble friend the Minister several questions in Committee on Monday; he answered not one of them, so I will have another try. First, can he tell me what consultation has been carried out of people with Down’s syndrome or their families in Northern Ireland? The Prime Minister prides herself on the Government’s professed commitment to equality, so perhaps my noble friend the Minister could tell the House what effort the Government have made to establish how people with Down’s syndrome and their families in Northern Ireland feel about the prospect of human beings with Down’s syndrome being aborted and denied their equal right to exist? I would be very happy to give way if my noble friend would care to answer.
Absolutely. This remains, at present, a fully devolved matter, and that consultation would be undertaken by the devolved entity. At the present time there is no devolved entity, and that consultation has not been undertaken by those MLAs or by the restored Executive; it is not there. We have been able to move this matter forward only since the instruction of the other place only a short time ago.
I would not normally stand up at this point, but it is important to note that the consultation envisaged in the early amendments, which have already passed, would have that full consultation because disabled people in Northern Ireland are a protected group.
The question is actually directly related to the House, so if I may I will continue.
I wonder if my noble friend, or indeed anyone in the House, could tell me why—I can quite understand why the noble Baroness would perhaps not like me to ask this question—as someone who was born with a disability, I am good enough to sit in your Lordships’ House, but this Bill suggests that someone diagnosed before birth with a disability such as mine in Northern Ireland would only be considered good enough for the incinerator. Because that is the brutal message of this Bill: if you are diagnosed with a disability before birth in Northern Ireland, you will not just be worth less than a non-disabled human being; you will be worthless—you would be better off dead. What a dreadful message for this House to send the people of Northern Ireland, without even having consulted them in advance.
As a disabled person, I am used to people feeling sorry for me, but today it is I who feel sorry for my party. What a desperately sad position this Bill puts my party in. Not only does it make a mockery of any pretence at government neutrality on a matter of conscience; it also enshrines inequality in law for Northern Ireland—and all this without consulting the people of Northern Ireland or their MLAs. How ironic that this is happening just before we celebrate a quarter of a century since my party, the Conservative Party, introduced the Disability Discrimination Act, which championed disability equality.
Perhaps saddest of all is the legacy the Prime Minister leaves if this Bill becomes law—a legacy of discrimination and death. Instead of ending burning injustices, if this Bill becomes law she will be leaving office after the creation of one of the biggest burning injustices imaginable.
Earlier this evening, my noble friend the Minister read out part of a letter to the Prime Minister concerning the amendments on same-sex marriage. I will do the same, only mine is a letter to the Prime Minister from more than 500 people with Down’s syndrome and their families. Perhaps my noble friend the Minister has it in his briefing pack—perhaps not. This is what they say:
“Theresa May, do you really want to look back at your time in Parliament and see one of your final acts being to introduce a change in the law that would be discriminating against our community and likely lead to many more babies with Down’s syndrome being aborted in a time of equality”.
How do they know the likely death toll for Down’s syndrome diagnosis? They know because in England and Wales, 90% of human beings diagnosed before birth with Down’s syndrome are already aborted. Indeed, while the last 10 years have seen amazing advances in medicine and technology, they have also seen a 42% increase in abortion of human beings with Down’s syndrome.
So, the writing is on the wall. If human beings diagnosed before birth with disabilities such as mine were wild animals, they would be given endangered species status and protected by law. But we are only disabled human beings, so instead we face gradual extinction. That is what this Bill imposes on Northern Ireland, without consultation.
I close with two questions for my noble friend. He is rightly respected as a leading advocate of LGBT rights and I take this opportunity to congratulate the noble Baroness, Lady Barker, on her recent marriage and to wish her and her wife every happiness. Love is love. It is a wonderful thing, as is the personal and societal security, stability and happiness that flow from it. My point is this: I would never presume to invalidate anyone’s love for another human being, including by denying them the right to get married. But why, then, do my noble friend and the Government use this Bill to invalidate the most fundamental right of all: every human being’s equal right to exist? For that, ultimately, is what this Bill does, and without the consent of the people of Northern Ireland or their MLAs.
My last question is this. Recent reports in the media suggest that the day is fast approaching when a predisposition to same-sex attraction can be established before birth. Yet there will be nothing to prevent abortions on that basis, although another reason would presumably be given. Would my noble friend stand at the Dispatch Box and defend the right for people to make such a choice, or would he stand with me and say that such discrimination would be unacceptable and wrong? If, as I hope, he would join me in opposing such discrimination, how can he possibly defend such discrimination against human beings whose only crime is to be diagnosed with a disability before birth?
It is no less unacceptable and wrong for us to impose such inequality on the people of Northern Ireland without their consent. It is vital that, at the very least, that consent is secured by introducing a requirement that a majority of MLAs support regulations before they are laid before Parliament. I urge noble Lords to support Amendments 16 and 16A.
Amendment 16 is entitled:
“Requirement for majority of MLAs to support regulations”.
I confess that I have huge admiration for Amendment 16, because I wish that I had thought of it when we were considering the question of possible prorogation and a crash-out deal with no consultation with Parliament. It is a wonderful thought that we could have written a prescription like this into the law, which would have required the Prime Minister to ring me up and ask, “What’s your view?”, and then work out whether there was a majority in both Houses for and against the crash out.
Actually, it does not make sense. Individually consulting Members of an Assembly that is not meeting does not make sense, I am afraid. It is of course open to the Secretary of State to consult whomever she wants, but to prescribe that she can proceed only if a majority consulted on the telephone or the internet agree is an absurdity.
I also remind those speaking to this amendment that the Minister made it absolutely clear that the consultations would be not about “whether” but about “how”. A number of the speeches that have taken place on Amendment 16 are more appropriate to Amendment 12 because they seem to assume that the consultations will be about “whether” and not about “how”.
My Lords, when I spoke earlier about consulting Assembly Members, I was told I should be speaking to Amendment 16, so I am delighted that the noble Lord, Lord Kerr, knows that I am speaking to the relevant amendment on this matter.
This legislation has been rushed through. We are told that everyone supports devolution and everyone wants it but there seems to be a great fear of hearing what the 90 Members of the Assembly think. We were told in our debate before that the Assembly Members had changed their minds. The last time they voted, the vast majority voted against abortion. The noble Lord, Lord Alderdice, told the House that things had changed dramatically. In fact, he went through the parties and said they have changed their views. How he knows that, I do not know. There is a way to find out—we could ask them, and this House would be led not by false information but by fact. Why can we not ask?
The noble Lord, Lord Dubs, is very interested in the protection of refugees. I say to him that I am very interested in the protection of the unborn child. I think that the child that has no voice in this House is worthy too. We have been lectured about rights and this being a matter of human rights. Is there a hierarchy of rights? Has the child no rights or fewer rights? Therefore, we want to legislate on a hierarchy of rights. I suggest that this is an opportunity to find out, genuinely and earnestly, what the elected representatives of the Northern Ireland Assembly feel. They have been used in this and the previous debate—we are legislating because the Members of the Assembly wanted to legislate. Now we are told that we do not know. We know that they voted against this legislation and we are going to legislate anyhow. I suggest that that is double standards and does nothing to credit this House.
My Lords, the noble Baroness, Lady O’Loan, in introducing this amendment acknowledged that it is effectively an amendment to the previous amendment that was carried. She also gave some anecdotes about people who were told to have an abortion. I do not believe that anybody in this House believes people should be told to have an abortion or that there are practitioners who would do that. We are talking about the right to choose on the basis of evidence. Indeed, we could have other stories of the consequences for some women denied abortions and the suffering that they have gone through. I do not think trading suffering really adds to the debate. There are fundamental differences of view. I respect that but let us recognise that we will use the arguments to support one side or the other.
What is being asked here is that the Assembly should be consulted. The noble and right reverend Lord, Lord Eames, said that we are talking about the theory of devolution. The problem is that we are not; we are talking about the practice of devolution, which is not being practised in Northern Ireland. Noble Lords from Northern Ireland need to reflect on the fact that the people of Northern Ireland need an Assembly so that devolution can happen. If devolution is not happening, they will have to suffer the debates that they are complaining about now. That is the consequence and the reality of not having devolution.
As the noble Lord, Lord Kerr, said, the previous amendment was about when and how—it was about the timing; it was not about whether it would happen. Amendment 16 is clearly about providing a veto in relation to the previous amendment. Proposed new subsection (3) in the amendment says:
“The second condition is that the relevant regulations under section 9 may only be before Parliament if a majority of the members of the Northern Ireland Assembly support the regulations”.
That is a clear veto. It is possible that a majority of Members would support the regulations, because opinions have shifted. I accept that. However, like the noble Lord, Lord Dubs, I worry that there is something uncomfortable about picking Members off one by one, possibly in a secret consultation as opposed to a plenary Assembly where votes, debates and opinions are discussed and recorded and accounted for in public. If the Assembly Members are to be consulted on these issues, then reconvene the Assembly and they can decide.
My Lords, it has been a long debate and it has ranged rather wide of Amendment 16A. The noble Baroness, Lady O’Loan, said that Amendment 16 was an amendment to Amendment 12, but that is not correct. In fact, Amendment 16 would insert a new clause.
Amendment 16 actually proposes inserting a new clause, but that is slightly irrelevant. We have had a debate on Amendment 12 and are now looking at the requirement to consult MLAs. There is something slightly uncomfortable about this. I am certainly not opposed to consultation. I think that the best consultation that we could have on this issue would be more than consultation. I would want to see the Assembly up and running and making these decisions itself—a point that the noble Lord, Lord Bruce, made. It is not just a question of taking consultation on one issue in isolation; what is really important is the process of governance, where issues are weighed against each other, talked through and looked at in detail along with other information. I fully—100%—support local decision-making and the local responsibility that goes with it, but that is not what we are talking about here.
In some ways, we are almost talking about imposing a double lock on the Government. The amendment that they want to consult on—the new law, as it will be—requires the Secretary of State to bring forward regulations in the absence of a Northern Ireland Executive. Therefore, only in the absence of an Executive would the Government be able to bring forward regulations. However, it would seem somewhat strange to then say, “We haven’t got an Executive. The Government must take the decisions, but we’ll go and consult them anyway”. That seems almost like a double lock, preventing the Government taking any action at all while the Assembly is not sitting.
If that principle were imposed across the board, it would be very difficult for there to be any governance on any issue in Northern Ireland. It would be inappropriate to put the Government in that position when the Assembly has not sat for well over two years. Therefore, despite what I think are good intentions behind the amendment, I cannot give it any support.
My Lords, in many respects this has been a longer extension of the earlier debate. I almost wish that someone had asked me a question at the beginning so that I could have stood up then. In fact, the MLAs will be consulted as part of the ongoing consultation envisaged with the stakeholders. However, the difference is that they will not get a lock on that, which would mean that only a majority could help us move forward. Therefore, the views of the MLAs will be taken and heard but they will not be a determining factor in arresting progress on this amendment. It is important to be aware of that as we make progress. It is also important, as I said when we discussed this issue a longer time ago, that the scope we are discussing is the scope we have received from the other place. The criticism of proceedings in the House of Commons, and those issues, are deemed out of order in the Companion. We have to accept that what has arrived here is something that we can act on and take forward, which we must do.
It is important to stress, throughout each of our discussions on this wider question, that the Government are not seeking to take forward an abortion amendment. We have received from the other place a clear statement, by a clear majority, on a conscience issue and a free vote. For good or ill, in response to my noble friend Lord Shinkwin, the Prime Minister, in this instance, would be able to exercise her conscience in the same way as anybody else in that House. This is not the UK Government’s policy, nor is it the policy of my party, but responsibility rests with this Government to ensure that what we are able to do in moving this matter forward is safe, sound and secure. That responsibility rests with us, and that is what we have sought to do in engaging with all noble Lords throughout this process—to ensure that we are able to deliver on that.
The discussion has ranged more widely than the question of consulting with the MLAs. I do not wish to extend the debate significantly in this direction, given that one of noble Lords’ concerns has been the scope from the other place, but I will touch on a few elements. By any definition, we have to accept that the situation in Northern Ireland is dysfunctional. The devolution structures that have been put together are not working. One can argue that the structures are at fault, or that the problem rests elsewhere, but the problem we face now is that the outcome is the same no matter which you decide is responsible. The situation that we face is serious, and I do not think there is a single Member in the House tonight who would not wish to see these matters taken forward by an Assembly and an Executive in Northern Ireland. For reasons that are all too apparent, however, certain parties in Northern Ireland are not able to deliver against that instruction. That is a great shame, as we probably all agree. We all recognise that noble Lords sitting here at this late hour should not be taking these matters forward in this fashion, but we are doing so because of a failure and a fault in the system in Northern Ireland
As the people of Northern Ireland look at what we are doing here, I have a sneaking suspicion that they are sick and tired of all politicians, of all rank and measure. They are tired and weary now because they seem to be in a situation where politicians are all over them when it comes to an election, then—lo and behold —seem to disappear when it comes to the heavy lifting. They now see all politicians of all parties, of all ilk and all places, in exactly the same way. That is a terrible situation to be in, and we need to restore the confidence and trust of the people of Northern Ireland in the elected system. We need to get the Executive up and working, and get this moving forward, but that is not what we are able to do through this amendment.
The noble Baroness, Lady O’Loan, has made a passionate speech this evening, and she has received a number of emails in response to a particular letter. I am sure we all have a large number of those in our inboxes now, but the number of emails needs to be judged against the population of Northern Ireland. The population is 1.871 million, and we need to recognise that the passion of those who have responded should be applauded, but it is not a means by which we can determine the view or the will of the people of Northern Ireland; nor should we consider it so. It is an important measure, but it is not in itself an adequate measure.
The amendment before us now broadly says that the MLAs must be consulted and their response to the consultation will determine what happens next. We cannot accept the amendment, but I stress that the MLAs will be consulted, and I can go further by ensuring that MLAs receive an update on each of the aspects that noble Lords will be updated on as a consequence of the earlier amendments from the other place. If your Lordships are so minded, we can ensure that MLAs receive exactly the same information that comes from the reports we have commissioned, or are about to commission, to ensure that they are fully abreast and aware of all of these aspects. We will do all we can to engage directly with the MLAs to ensure that they are fully aware of each step. I have no problem with committing to do that now, but I cannot have a lock placed on progress on this matter. That would place the Government in the invidious position of having been, both from the other place and through our own vote this evening, in a clear position, but then having to say that they must await the views of MLAs. We cannot have that, I am afraid; it would not be appropriate. I therefore ask that the amendment be withdrawn.
My Lords, I have listened with care to everyone who has spoken. I thank noble Lords who have spoken in support of my amendments. I will address a couple of issues before I give noble Lords my decision. There is a democratic deficit. The Minister is right: people are tired of politics. That is why I did not expect a response to the letter which the noble and right reverend Lord, Lord Eames, and I drafted, yet the responses continue to come in.
I thank the noble Lord; I am in his debt.
There is a democratic deficit. Noble Lords have acknowledged it throughout this debate. They have all acknowledged their unease at the way they have found themselves forced to do this and they have stressed the unacceptable nature of what they have been obliged to do. Despite that, our people still want a voice. While discomfort has been expressed here about what has been said, there is huge discomfort in Northern Ireland about the imposition of abortion by Great Britain on a people who do not want it. The context is that we are talking life and death issues. That is the difference about abortion: it is the life and death issue of a child, in respect of which, as noble Lords have said, the Assembly had a clear view.
We face Brexit. We started with Brexit this evening and we will end with Brexit. It would not be good to do this to a people who do not want it without at least consulting their MLAs; it would be too reminiscent of the bad old days. Of course, we are all aware of the subtext: that Sinn Féin had two red lines to coming in to the talks, which have now been removed. Sinn Féin may come back but not, I suspect, before this Bill is passed and implemented.
There are so many uncertainties around this Bill. I think the Minister has forgotten about the Istanbul convention; I hope he will come back to me on that.
I ask noble Lords to do as the noble and learned Lord, Lord Mackay, has said: to respect, in so far as we can, the devolved Administration. Our peace in Northern Ireland was very hard won. We still have fears, troubles, bombs and shootings. I ask noble Lords to give a voice to the MLAs in Northern Ireland by supporting this amendment. I do not intend to withdraw it; I wish to test the opinion of the House.
Amendment 16 withdrawn.
17: After Clause 9, insert the following new Clause—
(1) The Secretary of State must by regulations establish a scheme under the law of Northern Ireland which provides for one or more payments to be made to, or in respect of, a person who has sustained an injury as a result of a Troubles-related incident.(2) The first regulations under subsection (1) must be made before the end of January 2020 and come into force before the end of May 2020.(3) Regulations under subsection (1) must make provision as to the eligibility criteria for payments under the scheme which may, in particular, relate to—(a) the nature or extent of a person’s injury;(b) how, when or where the injury was sustained;(c) residence or nationality;(d) whether or not a person has been convicted of an offence.(4) Regulations under subsection (1) may make provision for the reimbursement of costs incurred by a person in connection with an application under the scheme (whether or not the application is successful).(5) Regulations under subsection (1) may, in particular, make provision—(a) for determining the amount of any payment;(b) for payments to be made in respect of past periods (including periods before this Act was passed);(c) for payments to be reduced or repaid (in whole or in part) in specified circumstances;(d) about the treatment under other legislation (for example social security legislation) of payments under the scheme.(6) Regulations under subsection (1) must make provision of the kind mentioned in subsection (5)(b) so as to ensure that where—(a) a person is eligible under the scheme as the result of an injury sustained by that person before the scheme comes into force, and(b) the person makes an application within a period specified in the regulations (which must not be less than the period of two years beginning with the day on which the scheme comes into force), the person is entitled to a payment to reflect the amount that the person would have received had the scheme been in force since the making of the Stormont House Agreement.(7) Regulations under subsection (1) may, in particular, make provision about—(a) the administration of the scheme (including provision establishing a body or conferring functions on an existing body);(b) the funding of the scheme by money from the Consolidated Fund of Northern Ireland (whether by virtue of grant funding from a Northern Ireland department, the appropriation of money by an Act of the Northern Ireland Assembly or otherwise);(c) the sharing of information between public authorities for the purposes of the scheme;(d) evidential matters;(e) the procedure for the making and deciding of applications (including provision imposing time limits);(f) appeals and reviews;(g) information, advice or assistance in relation to the scheme or payments under it.(8) Regulations under subsection (1) may make provision conferring a discretion on a person.(9) Regulations under subsection (1)—(a) may include provision amending, repealing or revoking any provision made by an Act of Parliament or Northern Ireland legislation, and(b) in so far as made in reliance on section (Regulations: procedure and supplementary 2)(4), may also include provision amending or repealing provision made by an Act or Measure of the National Assembly for Wales or an Act of the Scottish Parliament.(10) In making the first regulations under this section the Secretary of State must have regard to any advice given by the Commission for Victims and Survivors for Northern Ireland.(11) In this section—“injury” means any