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House of Lords Hansard
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Abortion Regulations: Northern Ireland
08 June 2020
Volume 803

Commons Urgent Question

The following Answer to an Urgent Question was given on Thursday 4 June in the House of Commons.

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

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

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My Lords, as a result of the Northern Ireland (Executive Formation etc) Act 2019, this House will debate the regulations on abortion next week. Any discussion about abortion evokes strong emotions and deeply held views. When we passed the legislation, we had detailed and thoughtful consideration of these provisions. Today, the Commons committee debated and passed the regulations by 15 votes to two. If there was a vote of all MPs, we should expect a similar result. So, first, can the Minister confirm that the change in the law to decriminalise abortion in Northern Ireland has already taken effect and that these regulations are about the framework for service provision? Secondly, can he confirm that the regulations fulfil a statutory duty, are essential to ensure that the UK Government fulfil their human rights obligations, and therefore must be considered by your Lordships’ House?

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My Lords, I totally agree with the noble Baroness that this is a very emotional subject. There have been debates in Parliament over the last few months, if not years. As the noble Baroness said, the regulations are being brought forward and there was a vote in the Commons today. The Government were placed under a statutory duty to deliver abortion law for Northern Ireland by implementing the recommendations of the CEDAW report.

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My Lords, looking forward, not backwards, will the Minister commit to working with the Department of Health in Northern Ireland to ensure the full implementation of services, as set out in the legal framework, to fulfil the UK’s international human rights obligations?

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Indeed, the noble Baroness is correct. Although health is devolved, the UK Government are giving every help they can to the health service in Northern Ireland. Once the regulations are passed by this House next Monday, as I hope that they will be, there is a lot of work to do to make sure that there is a full service operational for those women and girls who wish to have abortions.

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My Lords, will my noble friend the Minister say why Regulation 3, unlike the Abortion Act 1967, makes abortion on the basis of sex lawful in the first 12 weeks of pregnancy? Given that it is now possible to know the sex of the foetus between seven and 10 weeks, and that the CEDAW report expressly condemned sex-selective abortion, why does that regulation make it lawful? What meetings have the Government had with the organisation Stop Gendercide in considering how to define these regulations?

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I make it clear to my noble friend that the abortion regulations do not allow abortions on the grounds of sex selection. My noble friend may be aware that the UK Government publish an annual analysis of the male to female birth ratio in England and Wales to check for any evidence—for example, if there are more girls than boys aborted. The last one was in October 2019 and there was no evidence to show.

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My Lords, I should first declare an interest in that I am an active member of the British-Irish Parliamentary Assembly. I chair one of its committees and we did a report a couple of years ago on abortion. We covered both Northern Ireland and the Republic.

I will ask two questions. First, does the Minister agree that it is disappointing that for women in Northern Ireland there is still a state of uncertainty as to where they stand legally as regards their right to abortion? There are doubts about how it should work and differences in different parts of Northern Ireland, depending on which trust areas they live in. Secondly, will he further confirm that the Northern Ireland Human Rights Commission has a key role to play in all this? It has responsibility for the rights of women. Has he been in touch with the Northern Ireland Human Rights Commission to see how it is developing and taking this issue further?

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The noble Lord is right that once the law is fully passed and the regulations come fully into law—I hope next Monday—it will give clarity and support not only to those at the front end of health in Northern Ireland, who have to supervise the abortions that take place, but in particular to the women and girls involved. I will need to write to the noble Lord about the Northern Ireland Human Rights Commission.

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Is the Minister aware that while there is an obligation to produce regulations under the Act, there is no obligation on the Government to table these particular regulations, which, as the noble Baroness, Lady Eaton, pointed out, permit the abortion of foetuses on the grounds of sex? There is no restriction on the grounds upon which a baby may be aborted in the Northern Ireland regulations; therefore, it is possible to abort on the grounds of sex. Is he also aware that some of the regulations have been said by the Attorney-General for Northern Ireland to be ultra vires? Can the Minister tell us why the regulations go so very far beyond what was required by the CEDAW report, which underpins these regulations, particular insofar as the fact that they discriminate against babies with a disability, who can be aborted to birth, and medical practitioners and pharmacists who are not protected in terms of their freedom of conscience unless they are actively engaged in the act of abortion? Why is he promoting regulations that are not consistent with Section 6(2) of the Northern Ireland Act and the obligations not to discriminate on the grounds of disability and to protect freedom of conscience?

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There were several questions there, but I will answer two of them. First, the Attorney-General for Northern Ireland reports to the Northern Ireland Executive, not to the UK Government, but I am well aware of the views there. Secondly, to put the noble Baroness right, there was a vote in the UK Parliament on this. So, as I said, the Government are under a statutory duty to deliver abortion law for Northern Ireland and to make the changes.

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My Lords, the essence of this proposal was rejected by the Northern Ireland Executive. Why seek to overrule the Executive when they are now happily active again?

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I am well aware of the vote last week, but I take my noble and learned friend back to October 2019, when the Assembly was not up and running. The UK Government were obliged to act in line with Section 9 of the Northern Ireland (Executive Formation etc) Act. The fact that the Assembly is up and running now is of course extremely good news, but it does not mean that we revert to the status quo ante.

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My Lords, will the Minister agree that, because abortion is now legal in Northern Ireland, women there are entitled to the same rights and, above all, services as women in all other parts of the United Kingdom, and that we have to implement these regulations setting out the legal framework that will bring Northern Ireland into line with the rest of UK and meet the requirements of Article 8 of the European Convention on Human Rights?

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The noble Lord is absolutely right. It is also consistent with the Abortion Act 1967 and compliant with CEDAW, the Convention on the Elimination of All Forms of Discrimination against Women.

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My Lords, as has been said, abortion is a divisive and sensitive issue anywhere. In Northern Ireland, the problem today is whether British parliamentarians—especially English parliamentarians—have the right to impose their standards on a devolved legislature. This issue has had a positive result in Northern Ireland, creating cross-community politics: cross-community opposition to the regulations and cross-community support for the regulations. But as has been mentioned, the Northern Ireland Assembly, by 78 votes out of a total membership of 90, united against the regulations. Will the Minister say whether the Northern Ireland Assembly has the right to amend the regulations? If the Minister of Health in Northern Ireland, with a mandate to oppose the regulations, takes no action, will Her Majesty’s Government abolish devolution in Northern Ireland?

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I totally agree that people have strongly held views on this matter. I reassure the noble Lord that the regulations can be amended in Northern Ireland, should that be wished in the future.

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Lord McCrea of Magherafelt and Cookstown? No? I therefore call the noble Baroness, Lady Stroud.

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My Lords, one of the concerns with these regulations is that they make provision for abortion for non-fatal disability up to birth—something that, as we have just heard, 78 Members of the Assembly voted against this week. There are so many ways in which these regulations are concerning but, given all that we have been focused on in the last few months around protecting lives equally, it is extraordinary to me that the Government should present such a discriminatory provision, which is in direct violation of paragraph 85 of the CEDAW report. Will my noble friend the Minister explain how he will ensure that these regulations will not enable abortion on the basis of non-fatal disability to birth, and, as importantly, that they do not perpetuate a stereotype?

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This question very much focuses on the issue: the grounds for abortion. We must remember that what we are talking about is respecting and protecting the rights of women and girls. When we talk about severe foetal impairment and fatal foetal abnormalities, this is very much consistent with the Abortion Act 1967, and brings Northern Ireland law in line with that of the rest of the UK.

Sitting suspended.