Motion to Approve
That the Regulations laid before the House on 23 March be approved.
Relevant documents: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument) and 23rd Report from the Constitution Committee
My Lords, these regulations will provide the Secretary of State with the power to direct a Northern Ireland Minister, a Northern Ireland department, and the Health and Social Care Board of the Public Health Agency to take action necessary to implement all the recommendations in paragraphs 85 and 86 of the 2018 United Nations Committee on the Elimination of Discrimination Against Women, known as the CEDAW report.
We recognise that this is an unprecedented step, but such is the nature of the statutory duties on the Secretary of State for Northern Ireland that we have to act. While the regulations themselves are short, they are necessary to ensure that abortion services are available as a healthcare service in Northern Ireland, which will provide safe and local access for women and girls. We have made the most appropriate step in terms of the scope of any direction being limited to only what is needed to ensure that the CEDAW recommendations are implemented. This power, if exercised by the Secretary of State for Northern Ireland, can be used only for those purposes and will go no further.
I remind the House of the background to this. The House will recall that in 2019, during an ongoing absence of devolved government in Northern Ireland, Parliament decided that it was time to step in on this matter on the basis of human rights. These statutory duties did not fall away with the restoration of devolved government. We have always sought to deliver in a way that respects the devolution settlement, by putting in place the legal framework, but recognising that healthcare is devolved and therefore service provision should be delivered and overseen locally by the Department of Health and relevant health bodies with the relevant legal powers, policy and operational expertise to do so.
Noble Lords will also recall the previous debates that we have had on the 2020 regulations and the strongly held views across the Chamber on a range of finely balanced policy issues. This debate today is not about re-opening that; it is about ensuring that the duties under Section 9 of the NIEF Act can be implemented in full at the earliest opportunity. It is our firm view that the regulations that we made in 2020 established a new legislative framework that is operationally sound, works best for Northern Ireland, and delivers on the Government’s statutory duty. That is why we do not intend to amend the regulations.
So why are we here today? We are here today to do everything we can to demonstrate how committed we are to fulfilling the Government’s statutory obligations, and to ensure that women and girls in Northern Ireland have access to high-quality abortion and post-abortion care, consistent with the conditions set out in the 2020 regulations. As I have said, I recognise the emotive nature of these issues, but what is the issue at hand? As many noble Lords will be aware, over a year after the 2020 regulations came into force, women and girls in Northern Ireland are still unable to access high-quality abortion and post-abortion care in Northern Ireland, and the commissioning of full abortion services, consistent with the conditions set out in the 2020 regulations, has still not happened. In 2019, 1,014 abortions were provided in England and Wales for women from Northern Ireland, and women and girls still have to travel to access these services.
It has always been our expectation and preference that the Department of Health drives forward the commissioning of abortion services and ensures that these services become embedded in the health and social care system in Northern Ireland as an accepted and recognised healthcare service. While some abortion services have been provided since April 2020, and over 1,100 abortions have been provided in Northern Ireland, I am disappointed that services have not been formally commissioned, supported or funded by the Northern Ireland Department of Health, and that no guidance has been issued nor any official support measures put in place.
I hope that noble Lords will agree that at the very heart of this matter is the health of women and girls who have been, and continue to be, denied the same reproductive rights as women in the rest of the UK. Women and girls are entitled to safe, local healthcare. Indeed, during the pandemic this is even more crucial. We understand that managing the Covid-19 response has been an immense challenge and has placed the health and social care system in Northern Ireland under considerable pressure. However, the fact is that the law changed over a year ago. This is not a new issue that is a surprise to the Executive. Following the Northern Ireland (Executive Formation etc) Act 2019 receiving Royal Assent, and the Section 9 duties coming into effect, we engaged with all the Northern Ireland parties on this matter, and we continued to engage, being clear that Parliament had stepped in, and we would be delivering on those legal duties accordingly.
We are disappointed with the continuing failure of the Department of Health and the Northern Ireland Executive to commission abortion services consistent with the regulations that we have made, despite having extensively engaged with the Minister for Health, his department and wider members of the Executive on this issue for over a year. However, I put on record my thanks to the medical professionals who have ensured that women and girls have had some access to abortion services in Northern Ireland to date, and the organisations that have supported this work. I pay particular tribute to the late Professor Jim Dornan, a leader in his field and a passionate advocate for health issues such as cancer, but also women’s reproductive rights.
Looking ahead, our strong preference remains for the Minister of Health and his department to take responsibility for upholding these rights, for commissioning services and for delivering on what the law now clearly allows. Let me make an important point. As abortion remains a devolved issue, the Assembly is able to legislate or indeed amend the regulations, should it so wish, but only if it can agree a way forward that is convention-compliant. However, the Secretary of State has an ongoing statutory obligation to ensure that the CEDAW recommendations are implemented in Northern Ireland.
It remains our preference that the Department of Health moves forward with full commissioning of abortion services in line with the regulations. That is why we are giving it every opportunity to act on this matter. I look forward to the debate and will seek to address as many questions as I can in my closing remarks. I hope that these regulations will be supported today and I beg to move.
Amendment to the Motion
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because (1) the Northern Ireland Assembly is now sitting and the matter is devolved to that legislature; (2) the Regulations raise “complex legal and constitutional questions” in the view of the Secondary Legislation Scrutiny Committee; (3) the Regulations go beyond the Abortion (Northern Ireland) (No. 2) Regulations 2020 in that they undermine the devolution settlement in respect of education as well as abortion policy; (4) there has been no public consultation on the Regulations; and (5) the Regulations were laid shortly before the parliamentary Easter recess, which prevented the House considering them before they took effect.”
My Lords, I give notice that I intend to press my amendment to a vote. These regulations give the Secretary of State for Northern Ireland a power to direct a Northern Ireland Minister or department, the Health and Social Care Board and the Public Health Agency to take any action for the purpose of implementing the recommendations in paragraphs 85 and 86 of CEDAW. The powers conferred in these regulations are therefore extremely wide.
The Government have asserted that they have a duty to bring these regulations, but there is no time limit. This is work in progress for the Assembly and there can be no justification for intervening in the work of the Northern Ireland Assembly on this sensitive issue, disregarding the devolution settlement. The regulations will be implemented through directions from the Secretary of State. It is said that a direction will look like a statutory instrument, but we have procedures for statutory instruments. There are no procedures to scrutinise what is done by the NIO.
I ask your Lordships to vote against these regulations because the Assembly is sitting and the matter is devolved to that legislature. The regulations raise
“complex legal and constitutional questions”;
they go beyond the Abortion (Northern Ireland) (No. 2) Regulations; they undermine the devolution settlement in respect not only of abortion policy but of education; there has been no public consultation; and the regulations were laid just before Easter, preventing the House from considering them before they came into effect.
Your Lordships will recall that this started in July 2019 when a group of MPs, none of whom represented Northern Ireland, urged upon the other place a duty to give effect to the CEDAW recommendations. There was no obligation on Parliament to give effect to them. All the Northern Ireland MPs voted against them, but their votes and the votes of the Northern Ireland Assembly were ignored. The Government did not question what was said in the other place and proceeded to make an unworkable House of Commons clause into Section 9 of the executive formation Act. There were no international legal obligations, something that the Government have now recognised.
This is a matter that should be dealt with by the Assembly. Work has been ongoing. There is a very firm belief in Northern Ireland that every life matters, that both mother and baby matter. There is provision, such as that suggested in CEDAW recommendations 85 and 86, for support for mothers and for those who make the choice, sometimes with great difficulty, to have an abortion. Undoubtedly, more resources are required. Registered medical professionals in Northern Ireland now terminate pregnancies lawfully at no cost to the mother. Such terminations must, under the terms of the regulations passed here, be carried out in health and social care premises. Some 1,345 abortions were carried out in the past reporting year. Abortion is available in Northern Ireland, and safely.
Northern Ireland’s health service was described as broken pre Covid. Mid-Covid, in January 2021, almost one in five of our population was waiting for a first out-patient appointment; half them have been waiting for more than a year. In December 2019 and January 2020, just before Covid, the Royal College of Nursing called the first strike action in its 103-year history in Northern Ireland. With great respect, it is for the political representatives of Northern Ireland to devise a way forward on the provision of health services and abortion services.
Northern Ireland is in a parlous state. Our Assembly is functioning but our political situation is very fragile. Brexit brought civil unrest and the terrorists—ever present—have become more active. Last week a bomb was left in a car into which a young police officer was about to put her three year-old daughter. Noble Lords will have seen the rioting which was switched on on Good Friday and lasted over two weeks. Some 88 police officers were injured, civilians were injured, families were threatened and property was destroyed.
Northern Ireland has a devolved Government. Most recently the Secondary Legislation Scrutiny Committee said that these are politically and legally important issues and should have had more consideration. Our Assembly faces more significant problems than the rest of the UK because of our history, the instability of our current situation and the impact of the EU NI protocol. We are in a different place from the rest of the UK. There is no imperative to affirm these regulations today.
If affirmed they will further marginalise the Northern Ireland Assembly in its attempts to do business co-operatively—
It is important that your Lordships’ House respects the attempts being made in Northern Ireland to deliver effective devolved government. I ask noble Lords to vote for my amendment and reject this further attempt to undermine the Northern Ireland Assembly. Help us. Have courage. I beg to move.
My Lords, the United Kingdom is a relationship between three nations and a Province, a relationship in which together we are more than the sum of our component parts. The union has worked hitherto because Parliament has recognised that it cannot be used to impose a uniformity that undermines the key distinctiveness of the component parts. Parliament could, at any point since 1707, have voted to impose an English legal system on Scotland, but it has not because that would be to fatally disrespect Scotland and render the union unsustainable.
One of Northern Ireland’s distinctions pertains to its approach to the unborn. As the then Secretary of State said in 2018,
“Abortion has been a devolved matter in Northern Ireland since it was created in 1921, and it would not be appropriate for Westminster to seek to impose its will, or to be the arbiter of an issue that has long been devolved to the people of Northern Ireland.”—[Official Report, Commons, 5/6/18; col. 220.]
In the last 50 years in particular, we have developed a distinctive approach that affirms the importance of both lives, the life of the mother and that of the unborn. That may not matter to people in other parts of the union, but it matters very much to the people in Northern Ireland. We are proud of the report that demonstrated in 2017 that 100,000 people are alive in Northern Ireland today who would not have been had we embraced the Abortion Act in 1967 along with the other jurisdictions in GB. Moreover, after a complaint and a five-month investigation, the Advertising Standards Authority ruled that this was a reasonable claim.
What makes the regulations before us today deeply problematic is that they rest on the regulation-making power in Section 9, which was developed on the back of a vote that took place on 9 July 2019 in which 100% of the Northern Ireland MPs who took their seats in Northern Ireland voted no, yet this radical Northern Ireland-only law change was imposed on us by MPs, none of whom has a mandate to represent Northern Ireland. The strength and reality of the union is not confirmed by the ability of the sovereignty of Parliament to impose legislation that pertains only to a component unit of the union against the wishes of its representatives. Rather, it is confirmed by the fact that even though Parliament could impose in these instances, it does not and instead respects the different priorities of the different components of the union in order that the union can continue.
The passage of Section 9 and these regulations has swept those normal conventions to one side. First, it was argued on 9 July 2019 that Parliament was duty-bound to pass the amendment that became Section 9 because Northern Ireland was in violation of international human rights convention obligations under CEDAW and the recommendations of the 2018 committee report on Northern Ireland. However, in paragraph 7.7 of the Explanatory Memorandum accompanying the regulations today, the Government now confirm that paragraphs 85 and 86 of the CEDAW committee report do not constitute legally binding international obligations. As such, they do not provide grounds for overruling devolution or, more fundamentally, the understandings that make it possible to argue for the relationship that exists between the UK’s four component parts.
Secondly, it has been argued that, quite apart from international legal obligations, the law change introduced by Section 9 was necessary because of domestic UK legal process through the Supreme Court judgment on abortion in Northern Ireland in 2018. However, that argument is plainly absurd. The Supreme Court made no binding judgment whatsoever on abortion law in Northern Ireland. It reviewed narrowly whether certain elements of the law in Northern Ireland were not human rights compliant, not whether there was a general right to abortion.
The two areas where the court considered there would be non-compliance under Article 8 of the ECHR were abortions on the grounds of a fatal foetal abnormality and in cases where a pregnancy was the result of sexual crime. The judgment was not binding but, had Stormont been sitting and the law been amended accordingly, it would have resulted in a tiny increase in the number of abortions and the life-affirming traditions of Northern Ireland would have largely continued.
In the context where the existence of life-affirming laws is a long-term distinctive Northern Ireland legal tradition backed by its representatives on 9 July 2019, and where there is no justification for sweeping that aside on the basis of either international obligations or the ruling of the Supreme Court, one has to confront the harsh reality that the only reason why we are here today is that Parliament decided to take the risk—
My Lords, I shall speak to the amendment in my name and give notice that I intend to test the opinion of the House.
I am a severely disabled parliamentarian who believes that I have as much right to exist as anyone else. The regulations may not apply to me directly, but they still threaten me because they challenge that right by devaluing my existence. The narrative of the regulations is that I should not really exist. Indeed, I would be better off dead. The Minister cites CEDAW, but I wonder how that narrative does not perpetuate a negative stereotype against disabled people, which CEDAW expressly prohibits. If we pass the regulations today, not only are we endorsing lethal disability discrimination right up to birth but we are in practice saying to anyone who is born with a disability that they somehow escaped the net.
To his credit, the Prime Minister has committed to publishing in the near future the most ambitious and transformative disability plan in a generation, so it is somewhat odd that Her Majesty’s Government should none the less think it appropriate to publish regulations whose ambition is not to transform the lives of human beings with disabilities but, rather, to ensure that they never see the light of day.
I have to say that there seems to be a slight disconnect in the Government’s messaging. Perhaps the Minister could explain to the House, to me and to Harry Cahoon from Belfast, whose mother, Grace, emailed me yesterday, how it makes sense for the Government to tell human beings born disabled, “We want to support you but only if we haven’t found and killed you first.” My bones break easily. Harry, who is a happy 17 month-old baby, has an extra chromosome. Brittle bones and Down’s syndrome respectively are our medical conditions. We both, therefore, meet the criteria in the regulations that we have a physical or mental impairment that deems us to be severely or seriously disabled, so under these regulations we would qualify for death right up to birth.
That is ultimately what the regulations are about: death for disability—in other words, state-sanctioned, state-sponsored lethal disability discrimination. It is tragic that, despite the immense sacrifices of my grandparents’ generation, who fought and died in the war, the eugenicist poison that informed Adolf Hitler’s Aktion T4 euthanasia programme against disabled human beings is now informing government policy and being imposed on the people of Northern Ireland.
We have a choice: do we effectively endorse lethal disability discrimination, or do we instead send a resounding message of affirmation to human beings born disabled, and to their families, that your Lordships’ House upholds their dignity and equality? I beg to move.
My Lords, I preface my remarks by making the observation that it is against the law, throughout the whole of the United Kingdom, to compel or coerce a woman to have an abortion against her will. This House is talking today about the legal provision of services that are locally accessible to women and girls who need them. It is part of an ongoing debate between those of us who believe that women and girls are capable of making—and have the right to make—informed choices about their reproductive health, informed by health practitioners who wish to guarantee their safety, and those who do not. There was much that I took exception to in the speech of the noble Lord, Lord Shinkwin. I do not have time to address those issues today, but I hope that the House will return to some of the very serious allegations that he made.
When noble Lords listen to the arguments today, they will hear many deeply held views, but they are not views about the devolution settlement; they are about Members’ opposition to abortion. Those Members not only oppose the reform of Northern Ireland abortion law by Westminster but also support the restriction of abortion rights across Great Britain. They have worked to enable nurses and doctors to block women accessing the care to which they are legally entitled and have sought to stop essential clinical developments in abortion care, such as telemedicine.
We know that when it is difficult for women to access abortion care, maternal health suffers across the board. We know that, before the change in the law in 2018, over 1,000 women a year travelled to England and Wales from Northern Ireland for a termination of a pregnancy —and, during the dangerous time of the pandemic, they have continued, in their desperation, to do so. We really must not return to that because, as ever, it is women who are poor, and women in coercive relationships who cannot escape, who will suffer the most.
This measure is, unfortunately, necessary because the Northern Ireland Assembly has, over 15 months, frustrated every attempt to make sure that women have access to the services that they need. This is a limited measure simply to enable women to access the healthcare that they need. What timetable does the Minister envisage for women to be able to access services across all four health and social care boards in Northern Ireland? When will we see the reintroduction of telemedicine, a service that has proved so effective in England?
For decades, women and girls in Northern Ireland have been weighed down by the politics of the past. Today is another opportunity for this House to give them hope for the future.
My Lords, as noble Lords have said, at the very heart of this debate are the women, unborn children and their families who are affected by this issue. We must almost have them at the forefront of our consideration. I found what the noble Lord, Lord Shinkwin, said very powerful and moving. As the father of a child born with severe disability myself, I entirely understand what he said. I have spoken to, and been friendly with, many families with children with disabilities. They have found their family lives richly rewarding and speak powerfully to the value of every life. That must always be central when we discuss the issues of constitutionality, devolution settlements, the Sewel convention, parliamentary rights and so on.
On this side of the argument we simply ask that all lives matter. In consultation after consultation in Northern Ireland—and this is a devolved matter—the people of Northern Ireland have responded by saying that they value all lives and that they do not want the sweeping laws that have been introduced there to apply to them, especially when no one has voted for that. We now have the most liberal abortion laws anywhere in the United Kingdom and, even if you believe in abortion, you cannot say that that is a correct and proper process for Northern Ireland.
The Northern Ireland Assembly voted to reject these regulations on 2 June 2020. This is not some theoretical matter which the Assembly has not considered; it did consider it and, because of the sweeping nature of the laws, rejected the regulations. The Secretary of State for Northern Ireland was quoted by the BBC as saying that he was, nevertheless, committed to the regulations because they must comply with a UN convention. However, as has been pointed out, there are no such convention obligations. Paragraph 7.7 of the Explanatory Memorandum says that
“paragraphs 85 and 86 of the CEDAW Report”,
on which the legislation was based, and which we were told was its justification,
“are not binding and do not constitute international obligations.”
We therefore need to be very clear, when we come to vote, exactly what we are voting on, and keep all those unborn children in mind.
My Lords, we are all aware of the sensitivities surrounding abortion, as the noble Viscount, Lord Younger, has observed, and also of the wide range of deeply held views that it provokes. However, whatever our own particular standpoint on abortion per se, which is, as the House has been reminded, now legal in Northern Ireland, there are two specific aspects of these regulations which must be of general concern. One has to do with devolution, as we have already been reminded. To quote from a recent statement issued by the Archbishop of Armagh:
“It is a matter of regret that the Secretary of State for Northern Ireland intends to seek powers from Parliament to give direction to the Department of Health in Northern Ireland around what is clearly a devolved matter.”
Many others, including 250 clergy from several denominations in Northern Ireland, have made a similar point about these regulations undermining the devolution of the Northern Ireland Assembly, now that it is functioning again. There is a strong and widespread sense of democratic deficit in this regard.
The other issue which demands urgent consideration is the recommendation in paragraph 85(b)(iii) of the CEDAW report that abortion should be legalised in cases of “severe foetal impairment”; that is, disability, including Down syndrome. We have debated that before in your Lordships’ House and it has been raised already in this debate. Members of the Assembly have also already strongly indicated their support for a Private Member’s Bill which rejects the inclusion of abortion on the grounds of non-fatal disabilities. The regulations now before us seem to disregard that entirely. Indeed, they would replace one of the most conservative abortion regimes in the United Kingdom with one of the most liberal and discriminatory. That accords neither with the wishes of a majority of Assembly Members nor with the views of a significant majority—79%—of those who responded to a recent public consultation on this subject.
For these two reasons in particular, I cannot support the regulations as they currently stand. In the event that they are approved, I note that the Secretary of State is not mandated to use draconian powers to ensure their full implementation. I hope that, in that instance, it might be possible for him to work closely with the devolved Administration to bring about an outcome that is rather closer to their position on this contentious topic.
My Lords, this is an instrument dealing with abortion. It is put forward under the authority of Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. The introduction to that Act states that what it proposes is subject to the formation of the Executive. As your Lordships know, the Executive have now been operational for 15 months and accordingly it appears to me that the Act on which the Government are relying is not operative at the present time.
In any event, there are only three grounds under Section 26 of the Northern Ireland Act 1998 under which this Parliament can intervene in a devolved matter by statutory instrument in Northern Ireland: international obligation, safeguarding defence or national security, and protecting public safety or public order. The only question at issue under the statutory instrument is international obligation. The Northern Ireland Office made it clear in its submission to the Secondary Legislation Scrutiny Committee that there is no international obligation which requires this particular instrument, nor is this instrument enforceable except by the questionable process of judicial review. Accordingly, it is contrary to these provisions for this instrument to be enacted. It is, further, of considerable damage to the settlement in Northern Ireland for this instrument to be forced on the people of Northern Ireland without the agreement of the Executive. It is obviously a matter of considerable dispute in Northern Ireland and it is surely the objective of devolution to allow such matters to be decided in Northern Ireland itself.
In addition to these difficulties, the House of Lords Secondary Legislation Scrutiny Committee has said:
“We regard it as poor practice to bring new policy into effect when the House is not sitting, and using a procedure which prevents discussion before the legislation takes effect. It is particularly inappropriate when that policy is likely to be controversial.”
The House, it says, may wish to ask the Minister to explain why:
“Contrary to the convention of allowing at least 21 days between laying an instrument and bringing it into effect, the 2021 Regulations came into effect eight days after laying.”
I therefore take up the committee’s suggestion that the House may wish to press the Minister for further justification as to why the Northern Ireland Office decided to bring these regulations into effect in breach of the 21-day convention, and during the Easter Recess.
My main point, of course, is my first one: that these regulations are ultra vires of the Secretary of State in the present circumstances and I find it impossible to support them.
My Lords, we are being asked to give our consent to the killing of the unborn child. Many abortionists claim that abortion is the premature expulsion of the human foetus, but in reality it is the ending of a human life. They try to make it sound as nonviolent as possible, but that is not true. As a pastor, I have met many people, including young women, who find themselves in distressing circumstances and, with Christian compassion, have sought to offer genuine help and practical support. But what of these regulations before us today? They go far beyond that which is legally required and are especially discriminatory against those diagnosed with disabilities; they are insensitive and offensive.
We listen to those who piously proclaim that they would never do anything to undermine the Belfast agreement or the devolution settlement, yet the corrosive constitutional nature of this legislation is seriously damaging to devolution and is like throwing a hand grenade into the fragile structures of devolution. This is an unreasonable exercise of emergency constitutional powers when a devolved Government are functioning. Can anyone imagine Westminster interfering in issues fully devolved to the Scottish Parliament? The answer is no, but the Government, through this legislation, have crawled over the mangled bodies of little children to appease Sinn Féin demands before that party would allow devolution to be restored.
Life in our nation has been devalued. What is being proposed goes against everything God’s word teaches concerning the preciousness of life. Sadly, I believe that part of the blame must lie at the feet of silent people who know better but never raise their voices to speak the truth in love. For years, the very thought of what happens in abortion outraged the community, but powerful lobby forces have been at work and, through the media, have sought to condition and harass people into acceptance. I fear that if we accept the taking of life in the dawn of its existence, we will soon be pressurised to take human life in the twilight of its existence as well. I will not be silent, for my conscience is bound by the word of God. Does no one care that children with a diagnosis of Down’s syndrome, for example, are to be torn from their mother’s womb although their lives are fully viable and valuable? Of course, the doors will not be open for the public to see the tearful reality and truth about the various methods of the death of these children—out of sight, out of mind.
In a democracy, the major decisions are tested at the ballot box, but this legislation is being forced upon the people of Northern Ireland without a mandate to do so. The Government are deliberately acting in defiance of the will of the elected representatives of the people of Northern Ireland. Over these past years, we have spent billions to save life, yet in this one-and-a-half-hour debate we are being asked to sanction the killing of the unborn child. Many have been complaining throughout lockdown about what we do not have, what we cannot enjoy and where we cannot go. As we vote today, I ask noble Lords to hear the voices of thousands of innocent little children who have never had the opportunity to live outside the womb and, before God, to prevent another unnecessary death. I wholeheartedly support the amendments before the House and I unreservedly reject the Government’s Motion.
My Lords, this is an emotional issue, but I wish to express my own concern about the constitutional implications of these regulations.
To go back to the beginning, the legislation that introduced devolution to Northern Ireland followed a similar, although not identical, pattern to that adopted by the Scotland Act 1998. One of the issues that was much debated in the discussion about Scotland was what to do about abortion. In the end, it was decided that this should be a reserved matter, as it now is in Wales since 2006. The decision for Northern Ireland, on the other hand, was that it should be a transferred matter, and so within the legislative competence of the Northern Ireland Assembly, rather than that of the UK Parliament at Westminster. That was no accident. The Northern Ireland Act was the culmination of multiparty talks and the Belfast agreement of 10 April 1998. Those who are legislating here were content, without question, to accept the result of these talks. I cannot help thinking that if the Government were still respecting that result, as I believe they should, we would not be here today.
The only reason we are faced with this legislation is the duty placed on the Secretary of State by Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. As we know, that Act was passed while the devolved institutions in Northern Ireland were suspended. As the noble and learned Lord, Lord Mackay of Clashfern, so correctly pointed out, the Long Title of that Act states that one of its purposes is
“to impose a duty on the Secretary of State … to make regulations changing the law of Northern Ireland on certain matters, subject to the formation of an Executive”.
I agree with the construction that the noble and learned Lord put upon those words. Northern Ireland now has a functioning Executive and the Assembly is now once again able to take these matters into its own hands and reform abortion law according to its own wishes—indeed, it has spoken, as the noble Lord, Lord Dodds, told us. So, we are not in the situation that the qualification in the Long Title contemplates. I agree with the conclusion that the noble and learned Lord has drawn and I suggest that we ought to have careful regard to it when considering the amendment of the noble Baroness, Lady O’Loan.
The Constitution Committee, of which I am a member, has raised a question as to the prospect and desirability of different laws on abortion operating in Northern Ireland. This is a very confusing and disturbing matter, because we are moving into very deep waters. I would be grateful if the Minister would respond as fully as he can to the question that the Constitution Committee has raised. One of the remarkable things about the Northern Ireland settlement is a unique provision in the devolution legislation which enables the Assembly to modify any provision made in or under an Act of the United Kingdom Parliament,
“in so far as it is part of the law of Northern Ireland”.
But it can do this only if it is within its legislative competence, having regard, among other things, to the convention rights. So, it is a complicated matter and I would be grateful for the Minister’s further observations on that awkward situation.
My Lords, I am thankful for the opportunity to speak on this unprecedented move to provide the Secretary of State for Northern Ireland with such expansive powers. I share the concerns of many across the House and will concentrate on this issue during this debate.
I am pro-life but, for me, the debate is not about the rights or wrongs of abortion; it goes to the heart of the devolved settlement—as the noble and learned Lord, Lord Hope of Craighead, has already articulated. Under the devolution settlement it is up to the Assembly to legislate exclusively in a wide range of matters, one of which is health, including women’s health and abortion. In this instance, I agree with the Motions before the House but disagree with the regulations.
If this proposed intervention by the Secretary of State for Northern Ireland is allowed through the approval of these regulations, a dangerous precedent will be set whereby the UK Government can legislate directly on devolved matters whenever they like. The Minister said that this power related exclusively to the issue of abortion; the House should take note of that.
I point out too that allowing the Secretary of State for Northern Ireland such expansive powers as are set out in these regulations not only is unprecedented but sets a dangerous precedent for the treatment of devolved powers in the UK, undermines the powers of our Assembly and would be in contempt of the Good Friday agreement. It is worth noting that the Assembly was restored in January last year. I believe firmly in devolution and am opposed to the principle of this legislation, without prejudice to my personal pro-life views on abortion.
In 2019, the previous Parliament voted to impose on Northern Ireland the extreme abortion recommendations of the United Nations CEDAW committee. This is a UN convention to which the British Government have signed up. I have been told, however, that CEDAW does not have any direct legal effect in Britain or Northern Ireland: it can report and recommend actions, but those are simply recommendations with no binding international human rights obligations. Moreover, it is not clear how these powers, conferred by the 2021 regulations, are admissible under the devolved settlement enacted by the 1998 Northern Ireland Act. It would appear that this is a constitutional overreach on a devolved matter. I ask the Minister to think carefully about this issue and to withdraw these regulations.
My Lords, as a Conservative and Unionist, I am acutely aware that the maintenance of our union does not depend on the imposition of uniformity. If the union is to survive, we must respect the key distinctions between its different parts. Northern Ireland’s long tradition of life-affirming laws may not be to everyone’s liking, but we must acknowledge their existence—not because of a stunted view of human rights but because of a wider vision in which the rights of both the mother and the unborn have to be taken into account.
I am deeply concerned that, rather than respecting the traditions of Northern Ireland, some representatives of other parts of the union have actively sought to disinherit Northern Ireland of her traditions. We simply cannot do that if we want our union to survive. The vote that started this process in another place on 9 July 2019 resulted in all Northern Ireland MPs who took their seats in Westminster voting no, and yet this unwanted legislation was imposed on the Province by MPs from other parts of the union.
I cannot think of any example of this kind of case that ended well. There was the flooding of the valley in Wales and the destruction of the village of Capel Celyn, in the context of 35 of Wales’s 36 MPs voting no. That is a huge issue for many people in Wales more than 50 years later. The imposition of the poll tax on Scotland a year early, against the wishes of its elected representatives, provides another case in point. Both events have been the subject of public apologies and, sadly, both now inform the narrative of independence in Scotland and Wales.
It is no surprise that legislation resting on such troubled foundations should be less than straightforward. These regulations cannot be enforced—certainly not in the normal way. As the Government conceded to the Secondary Legislation Scrutiny Committee, the only way to enforce them would be to judicially review the decision of an actor to whom they are directed to ignore them. Given this difficulty, and the implications of the nature of the vote of 9 July 2019 on which the regulations rest, I suggest that, rather than continuing with these regulations, the Government give Parliament the option of considering the restoration of Stormont and repealing Section 9.
In making this point, I say to advocates of abortion liberalisation: “What are you scared of?” It is patently obvious to anyone who knows anything about the Northern Ireland Assembly that it is not going to move back to a pre-October 2019 position. Indeed, it is interesting that the only legislative steps that the restored Assembly has taken—
I am finishing. The only legislative steps that the restored Assembly has taken is to consider a Bill to prohibit abortion on the basis of non-fatal disability until birth, a measure that would prevent perhaps only one abortion a year. I will certainly support the Motion in the name of the noble Baroness, Lady O’Loan.
My Lords, the Government have said that they have no choice but to bring these regulations forward because of the obligations placed on the Secretary of State by Section 9 of the executive formation Act. We now know, having listened to and read many speeches, that this is just not credible. The noble and learned Lord, Lord Mackay of Clashfern, in particular, pointed this out so clearly. First, Section 9 was brought in in the context of legislation whose purpose was to help restore the Executive, along with maintaining abortion as a key part of the devolution settlement. The Executive has now been restored for 16 months and abortion remains in the devolution settlement. Secondly, the decision to introduce Section 9 was the decision of the previous Parliament, and no Parliament can bind its successor. Every Parliament must have the right to respond to changing circumstances.
The 2019 vote on which Section 9 rests saw 100% of Northern Ireland’s elected MPs opposing Section 9, but it was imposed by the other MPS, none of whom represented Northern Ireland. Surely the Government have learned from the lessons of the past when trying to impose legislation on other parts of the United Kingdom. As has been mentioned, the poll tax is a brilliant example of that—a terrible mistake by a Conservative Government, and subsequently apologised for by David Cameron in 2006. I would have hoped that riding roughshod over devolved Governments was a thing of the past. It seems to be a thing of the past for Wales and Scotland, but somehow Northern Ireland is once again treated differently.
When it suits Her Majesty’s Government, it is a devolved matter. Along with other Members, I tried very hard to get the definition of “victim” to be the same in Northern Ireland as in the rest of the United Kingdom. “Oh no”, I was told, “that’s a devolved matter”. There are so many other examples—look at the treatment of veterans. We now know that the international obligations on which Section 9 was argued for are not binding. These regulations are an assault on the constitutional dignity of Northern Ireland. With the current instability in Northern Ireland as a result of another government diktat of the protocol, this will cause even more instability and concern.
Noble Lords’ views on abortion are not the issue. Today’s debate is not about abortion: it is about allowing a devolved Government to make their own decision on a devolved matter. There is a need for a debate on this in Northern Ireland. Perhaps one way of getting agreement on such a controversial issue would be a referendum.
However, these regulations will—and I must put it in this strange way—put another nail in the coffin of devolution for Northern Ireland. We are being treated differently. People in Northern Ireland are getting fed up with being treated differently, and we can start today in this House by showing that we believe in devolution and in the Northern Ireland Assembly having a right. I ask noble Lords to vote for all these amendments. I congratulate the noble Lord, Lord Shinkwin, on an extremely moving speech and totally support him.
My Lords, the regulations proposed by the Government are deeply troubling for the devolution settlement in Northern Ireland and the lives of the unborn. There is a danger that this regulation will further the damage done by the Northern Ireland (Executive Formation etc) Act 2019 in that instant changes were made without the Executive’s approval because there was no Executive. However, now there is an Executive in Stormont exercising their constitutional right to govern. Do the Government no longer trust the institutions or leaders of Northern Ireland to govern? If the people and parties of Northern Ireland have a different view on abortion from that of this Government, should they not be allowed to form their own laws and regulations?
A Motion was passed by Stormont in June 2020 rejecting the changes that the Government made. At the very least, there is cross-party support for removing the right to abortion in cases of severe foetal impairments. This regulation takes no interest in the views of those representing the people of Northern Ireland. Instead, it assumes that the Secretary of State should be responsible for these decisions. This principle potentially threatens the union. I am sure that voters in Scotland will be taking note.
Furthermore, I have concerns about the implication of this regulation for the lives and rights of the disabled. Paragraph 85 of the report upon which the regulation is based states that severe foetal impairment should be considered grounds for an abortion. However, it goes on to say that this should be done
“without perpetuating stereotypes towards persons with disabilities”.
This is a clear contradiction. If we value the lives of the disabled, we should not also pass laws allowing for the abortion of disabled babies. What does it say to those in our country, and in Northern Ireland, who have a severe disability, as we have heard already? The Government seem to be saying that these lives are less valuable.
Finally, paragraph 86 of the report mentions protecting women
“from harassment by anti-abortion protesters by investigating complaints and prosecuting and punishing perpetrators.”
What forms of anti-abortion protest do the Government deem acceptable to take place in Northern Ireland? Will there still be space for peaceful exercise of free speech?
My Lords, a womb is not a tomb. In 1996 I presented the Bill which created the UK’s first DNA database. From the moment of conception, life begins, with unique DNA which no other human soul in the world has. Abortion, in the dictionary, means abandonment, death, destruction, expulsion, cancellation, rescission, revocation and feticide—cold, hard, final words which cannot be reversed.
I oppose these regulations. Abortion is a devolved issue. The Northern Ireland Assembly has now been sitting for over 15 months, so it is a serious violation of the devolution settlement for the Government to impose themselves further through the commissioning of abortion services—services which are already being provided. In the year since the abortion regulations were introduced, 1,345 lives have already been lost to abortion in Northern Ireland. There are now over 50 million abortions per year worldwide. That is more than one abortion per second. During the 90 minutes of this short debate, more than 5,400 babies worldwide will have been aborted.
Of the consultation responses, 79% registered general opposition, based on the historical and established position on abortion in Northern Ireland, yet these regulations ignore this clear opposition. These latest regulations go beyond what is available in the rest of the United Kingdom, against the wishes of the people of Northern Ireland and their politicians. For example, they permit gender-selective abortion and there is no requirement that a doctor be involved. There is a clear breach of Article 10 of the UN Convention on the Rights of Persons with Disabilities, which states that everyone has the right to life, whether able-bodied or disabled.
We start every day’s session in both Houses of Parliament with prayers. Surely God’s words in the Bible should not be ignored. Psalm 139, verses 13 and 16, emphasises how God views each and every life that He creates as ordained for a purpose and special:
“For you created my inmost being;
You knit me together in my mother’s womb …
Your eyes saw my unformed body;
All the days ordained for me were written in your book”.
We have a choice between man’s regulations and God’s words. Everyone who is for abortion has already been born. Unborn babies do not have voices, but they do have rights. A womb is not a tomb.
My Lords, these regulations present me with a quandary. I look at the abortion arrangements that they allow for women in Northern Ireland with some envy. The unconditional access to terminations pre 12 weeks, and a more liberal overall approach that effectively decriminalises abortion, go beyond the Abortion Act 1967, and many of us who have argued over the decades for full reproductive rights for women would want such arrangements extended to the whole of the UK. Conversely, the position for women in Northern Ireland previously, when abortion was legally permitted only in very limited circumstances, was highly proscriptive and led many women to fear stigmatisation and criminalisation for decisions made about their own body, a fundamental tenet of women’s freedom.
The recent problems created by a non-functioning Assembly, forcing women to travel for abortions or to see to term unwanted pregnancies, were intolerable. So I understand the justifiable argument for intervention while the power-sharing agreement was not functioning and women in Northern Ireland were left, in effect, without access to abortion services. But, and it is a big “but”, we now have a functioning Northern Ireland Assembly, and while abortion is a devolved matter, something which I prefer was not the case, the imposition of these regulations by Westminster decree without consent—indeed, in flagrant defiance of a rejection of these regulations by democratically elected Northern Ireland politicians—is an obvious flouting of democracy. Even amid concerns about delays in commissioning services by the Assembly, why does the Secretary of State have such sweeping powers? We do not even know when they will end.
This is made worse by the sensitivity of the issue. Votes on abortion are rightly recognised as a matter of freedom of conscience. I do not agree with the concerns raised by the noble Lord, Lord Shinkwin, that post-24 week terminations represent any threat to the rights of the disabled, but I defend his right to put these arguments, and acknowledge that this is a morally charged question. A tone-deaf breach of an already strained devolution agreement on this issue does nothing to win the argument for more liberal abortion arrangements in Northern Ireland or tackle the hard questions.
I urge women’s rights campaigners and the citizens of Northern Ireland to put their energies into winning public support in a popular mandate for changes in the law and in recognition of the importance of women’s bodily autonomy. For pro-choice campaigners to support a UK Government deploying procedural chicanery that gives the Secretary of State unprecedented powers to expand abortion services seems to be cheating politically, and to be counterproductive and antidemocratic. By the way, having 90 minutes to debate women’s rights or Northern Ireland devolution seems insulting to both.
My Lords, I have considerable sympathy with my noble friend on the Front Bench, because his entire legal case and the whole legal basis for his proposal collapsed within minutes of his sitting down after making his opening speech. In particular, as pointed out by a number of noble Lords but particularly the noble and learned Lords, Lord Mackay of Clashfern and Lord Hope of Craighead, he needs an international obligation to give him the statutory power to override the devolution settlement, but his own department and the Explanatory Memorandum admit—and our own Constitution Committee has indicated—that there is no international obligation present in the CEDAW documents.
What really interests me about this whole measure is not the assault it makes on devolution as an abstract concept but the direct assault it represents on the Good Friday agreement itself. Last year we discussed the Northern Ireland protocol—in my view a bad treaty that has brought disruption to businesses and consumers in Northern Ireland, irrespective of communal affiliation. Jovian thunderbolts flew around this House at the thought that the Government could modestly though unilaterally alleviate that disruption to the practical benefit of the people there. The rule of law reigned supreme.
When we come to the Good Friday agreement, Jupiter falls silent—but we would all agree that the Good Friday agreement is a good treaty. It has ended terrorist violence and given Northern Ireland democratic self-government, yet here we are messing about with it on highly dubious grounds and with cavalier high-handedness. As one noble Lord said earlier, it cannot end well.
Earlier today at the Dispatch Box, my very same noble friend Lord Younger spoke to your Lordships’ House of Her Majesty’s Government’s
“unwavering commitment to the Belfast/Good Friday agreement”.
That is not what we are seeing evidence of this afternoon. The weather has changed, with little explanation. It is yet possible that the Secretary of State and the Northern Ireland Executive will reach an accommodation on this, but to achieve that with a gun pointing at the heart of the Good Friday agreement is a price too high to pay. I urge my noble friend to withdraw these regulations and think again.
My Lords, as this debate has illustrated all too clearly, this subject provokes extremely strong emotions. I welcome these regulations from the Government but regret that they are necessary.
Contrary to many of the speeches we have heard this afternoon, there is in fact broad support in Northern Ireland and across party lines for the approach taken by the Northern Ireland Office in these regulations. Importantly, there is also a great deal of support for them from both the medical community and women’s rights organisations—points made extremely powerfully this afternoon by my noble friend Lady Barker. It is also worth noting that the regulations were adopted yesterday in the House of Commons by 431 votes to 89, a very substantial majority of 342 votes.
I pay tribute to the many dedicated healthcare professionals in Northern Ireland who have continued to support women and to provide reproductive healthcare in these most difficult of circumstances, made considerably more challenging by Covid-19.
Speaking to friends and colleagues in Northern Ireland, there is a deep sense of dismay at some of the political games being played here and much concern about some of the misinformation adding to the heat of this debate. The facts are that these regulations are concerned only with giving the Secretary of State for Northern Ireland powers to direct local health bodies and officeholders to commission abortion services. These regulations do not amend regulations and provisions for legal abortion care, which were supported overwhelmingly in Parliament last year.
As the report published last week by the House of Lords Constitution Committee sets out clearly, we should also recall that these regulations stem from the legislation passed during the period when the Northern Ireland Executive was suspended and before it was restored in January 2020. The 2020 regulations sought to bring Northern Ireland in line with the rest of the United Kingdom in reproductive rights and to ensure that the whole United Kingdom met its international requirements through CEDAW.
Of course, it would have been hugely preferable for the Northern Ireland Executive to have fulfilled their responsibility directly, but it is now more than a year since the Executive was restored and they have failed to do so. This seems unlikely to change in the near future so, faced with stalemate in the Executive on these matters, these regulations have become necessary. The debate this afternoon is really about ensuring the implementation of a law that has been in place for over a year now; it should not be about reopening or unpicking what should be a settled matter.
Debates about devolution and constitutional wrangling, as set out in several of the fatal amendments before us today, must not be allowed to hide the facts about what is happening now in Northern Ireland as regards access to vital reproductive healthcare and the impact this is having on women’s lives. Abortion in Northern Ireland is in a precarious position. Three local health trusts have stopped providing abortion services, with the consequence that once again women are being forced to travel to England for abortion services during a global pandemic or are purchasing unsafe abortion pills online. Despite the new legal framework coming into effect over a year ago, services remain unfunded and without commissioned support from the Northern Ireland Department of Health. It is surely unacceptable that reproductive rights vary across our United Kingdom.
I would like to reassure those colleagues who expressed concern about the potential impact of these regulations on the devolution settlement in Northern Ireland that—as my colleague in Northern Ireland, Alliance MP Stephen Farry, has said—these are an exceptional set of circumstances and should not create a wider precedent. As the Northern Ireland Office Minister Robin Walker put it so powerfully during the debate in the House of Commons earlier this week, and as the Minister repeated here this afternoon:
“At the heart of this matter are the women and girls in Northern Ireland who have been, and continue to be, denied the same reproductive rights as women in the rest of the UK”.—[Official Report, Commons, Delegated Legislation Committee, 26/4/21; col. 4.]
I therefore urge noble Lords to support these regulations and to reject all fatal amendments.
My Lords, just over nine months ago the Minister and I sat opposite each other at the Dispatch Box and the House debated the terms of the abortion provision in Northern Ireland, as set out in the 2020 regulations. Exactly a year before that, I sat opposite the noble Lord, Lord Duncan, while the House engaged in what was then a thoughtful and detailed debate on the Northern Ireland (Executive Formation etc) Act and the decriminalisation of abortion in line with the CEDAW recommendations, which we have heard about today.
This debate has been heard in your Lordships’ House on a number of occasions, and we know there are long and deeply held convictions across the House on both sides of the issue. That is evident today from the amendments we see, but I urge noble Lords to respect the views of other people in the language they use. Nobody has the moral high ground on this issue. One of the reasons I feel so strongly about the provision of abortion rights in Northern Ireland is that, as the noble Baroness, Lady Barker, pointed out, it is not compulsory but a provision of services.
Noble Lords may recall the reasons why the Republic of Ireland changed its law. In 2012 a 31 year-old woman was denied an abortion following an incomplete miscarriage because the law would not allow it, and she died as a result of being denied that abortion. I am sure no noble Lord in this House supports that happening to any woman, but the right of life is for women as well. That seems not to have been addressed in the debate we have had, and I am sorry for the tone of some of the comments that have been made.
It is now getting towards two years since the Northern Ireland (Executive Formation etc) Act was passed, and the Secretary of State has a statutory duty to ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented. The change in law then was in response to findings that the United Kingdom, as the state party, was responsible for
“grave and systematic violations of rights”.
It was then, as it is now, the duty of this Parliament and the UK Government to uphold the rights of their citizens at a UK-wide level.
Although the 2020 regulations provided a framework for service provision, we know that the proper funding and commissioning of those services is yet to take place. That leaves women and girls in Northern Ireland without the same access to reproductive rights and advice as their counterparts in every other part of the UK. The existing law is not being implemented, and that is the reason behind these specific and, as we have heard, limited regulations before us today.
Today’s order is supported by the Royal College of Obstetricians and Gynaecologists, the British Pregnancy Advisory Service, Amnesty International and Informing Choices NI. They report that: early abortion services are currently beset with uncertainty; they are being run by local health trusts without funding, which puts them at risk of temporary or permanent closure; and multiple heath trusts have stopped provision of services for periods of time. I have heard just this weekend that, in the Western Health and Social Care Trust, services were being provided by a single doctor without support until, unsurprisingly, that was no longer viable. On Friday, that trust suspended its early medical abortion service, effective immediately, and is refusing all referrals. Today’s order gives the Secretary of State the power to direct that necessary action be taken to provide safe abortion services in Northern Ireland, as the law requires. We support it.
I have a couple of questions for the Minister and one brief comment, if time allows. First, he said the Secretary of State does not intend to use his power to direct immediately, but he is seeking further action from the Department of Health before the Summer Recess. Can he give any more information on that? Largely, my issue is with the continuing uncertainty.
Secondly, it has to be recognised that abortion services are not a stand-alone provision. They are part of the wider landscape of reproductive sexual health services. Could the Minister give more details on what supportive work is being done to provide counselling, access to contraception and quality relationship and sex education alongside changes in healthcare provision? The two go hand in hand.
Finally, the noble Baroness, Lady Suttie, spoke about the vote in the House of Commons last night, when these regulations were supported by 431 votes to 89. When we had a debate on the 2020 regulations, I said:
“As an unelected House, our role on secondary legislation is limited and narrow.”—[Official Report, 15/6/20; col. 1995.]
I have said something similar in your Lordships’ House on a number of occasions. At times, we find that frustrating—nobody more so than me, I can say. It remains frustrating, but it also remains my view that that is our role with secondary legislation. It would be extraordinary if, having seen secondary legislation passed in the House of Commons by 431 to 89, this House would decide to take a different view and, in effect, pass fatal Motions. As I have indicated, I support the order and oppose all three amendments.
My Lords, first, I thank all speakers who contributed to this debate on the regulations on a subject matter which, as I said in my opening speech, I fully recognise is a sensitive and emotive issue. But can I start by saying how much I appreciated the remarks from the noble Baroness, Lady Suttie? Her speech was sensible and balanced in terms of where we are now. She used the word “regret,” and she is right, in terms of the position we find ourselves in.
I would also like to thank the noble Baroness, Lady Smith, for her remarks. I was grateful that she put, extremely eloquently, what we might both agree is the other side of the argument. I was very moved by the short story that she gave about the sad case of a particular girl.
I will directly answer one question the noble Baroness, Lady Smith, gave about the remarks that came from the Minister of State, Robin Walker, who said the plan is that the Department of Health in Northern Ireland will, hopefully, take heed of what we are doing and move quickly. However, he is happy to have what he has called a pause before the Summer Recess. That means he wants to allow further movement from the Department of Health so is prepared to allow a bit of leeway. I hope that provides some clarity, but if it does not, I will certainly write to the noble Baroness.
The noble Baroness’s second question, which I scribbled down, on the extent and quality of abortion services, is an extremely good point. I may be able to address that later, but if not, again, I shall write to the noble Baroness.
Of course. That is an extremely good point. I will pick up on that.
However, I recognise that several noble Lords—and many today—have registered their strong opposition to what we are doing. But we are under a clear statutory duty, and it is important that women and girls in Northern Ireland are afforded equal rights to those living across the rest of the UK.
Before turning to the substantive issues raised in today’s debate, since some noble Lords have questioned the extent of our legal powers, I would like the House to note that the JCSI has not drawn the instrument to the attention of both Houses for being ultra vires. But I will speak about constitutional matters later on, assuming that there is time.
I also note the amendments tabled by the noble Lord, Lord Morrow, the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin. I hope that the answers I give in relation to the issues raised will go a little way in explaining that these amendments, in our view and in my view, should not be supported.
My noble friend Lord Shinkwin raised issues about the potential for the framework set out in the March 2020 regulations to allow for discrimination against disability. I do, as he will know, respect my noble friend, and I am grateful to him for raising this important and sensitive issue once again. He should note that we are legally bound to implement the CEDAW recommendations, which include providing access to abortions in cases of severe foetal impairment, not only in cases of fatal foetal abnormalities. It is our firm view that the regulations properly comply with the statutory duty under Section 9 of the NIEF Act, which includes implementing all the recommendations in the CEDAW report. The regulations mirror the law in the rest of the UK, where abortions are permitted in cases of severe foetal impairment and fatal foetal abnormality, with no time limit.
The Government would never act to discriminate on the basis of disability. The regulations are consistent with the rights under the United Nations Convention on the Rights of Persons with Disabilities. Proper provision of information, clear medical advice and counselling and other supports are all key in allowing a woman or girl to make an informed decision in what are often difficult situations. I was grateful for the remarks made by the noble Baroness, Lady Barker, who spoke eloquently and passionately about this aspect. This ensures access without barriers for victims of sexual crime as well as other women seeking an abortion, supporting the rights of women and girls to make informed decisions about how they wish to proceed, based on their health and wider circumstances, within the health system, rather than looking to alternative, unsafe means. This provision was determined as the most appropriate way of meeting our statutory duty and what CEDAW requires by ensuring that women, including victims of sexual crime, access services without undue delay while avoiding anything that could lead to further trauma or act as a barrier to access.
I would like to pick up on a point raised by my noble friend Lord Shinkwin. I will not be addressing his very strong views that he raised, and, as he would expect, I disagree very strongly with much of what he said, I regret to have to say. Let me say this: given the often late diagnosis and the timing of follow-up scans and tests, women will need to be given time to understand the nature and severity of the condition that they find themselves in. It is only right that women have appropriate time to make individual, informed decisions based on their own health and wider circumstances, including support where they want to carry a pregnancy to term. I think this point was made by the noble Baroness, Lady Barker, as well. It is crucial that the Department of Health acts urgently to formally commission full services, consistent with the regulations we made, so that these support measures can be properly delivered.
As I mentioned in my opening speech, I remind noble Lords that the Assembly can consider and debate issues related to abortion. As I also said in my opening speech, any amendments must be compliant with convention rights, and the Secretary of State has an ongoing obligation to ensure ongoing consistency with the recommendations in the CEDAW report in Northern Ireland.
The noble Lord, Lord Morrow, said that abortion remains devolved, and that the Government should instead be asking Parliament to repeal Section 9; that was mentioned by a few other Peers as well. I remind noble Lords that, although the Executive was restored, the statutory duty in Section 9 of the Northern Ireland (Executive Formation etc) Act did not fall away with the restoration, nor with the making of the initial regulations that came into force on 31 March 2020. The devolution settlement does not absolve us of our responsibility to uphold the rights of women and girls in this context. The noble Lord may not agree, but I think this goes a little way towards answering the question raised by the noble and learned Lord, Lord Hope of Craighead. This is not about stepping in on a devolved matter, as the noble Baroness, Lady Hoey, suggested it was. This is about ensuring compliance with the statutory duties Parliament imposed on the Secretary of State for Northern Ireland in mid-2019.
One point that I wish to comment on—it was also raised by the noble Baroness, Lady Suttie—is that I do not believe that the noble Lord, Lord Morrow, is correct when he says that all Northern Ireland MPs oppose this. May I quote from Stephen Farry, who said:
“As an MP from Northern Ireland, I wish to stress my support for these regulations and the approach that is being adopted in this particular area by the Northern Ireland Office. There is a broad-based political support, and most importantly from the women’s sector, for these regulations.”
Here I echo the words of the noble Baroness, Lady Suttie. This should not be lost on the House.
We are in a unique position on this issue. As I said earlier, Parliament placed the Government under a very specific statutory duty with respect to access to abortion services in Northern Ireland. That is why we have had to deliver the regulations, and continue to have a role in this space. I must re-emphasise these points to many who have spoken today, including my noble friend Lady Eaton, and the noble Lord, Lord Taylor. Although we made the regulations last March providing the framework for access to abortions, and some service provision commenced, this has not discharged that statutory duty in full. We are not seeking to reopen the 2020 abortion regulations, which were approved by a significant majority of this House—by 332 votes to 99—last year.
I shall now quickly answer some of the points raised by the noble Baroness, Lady O’Loan, about the Secondary Legislation Scrutiny Committee’s report, which noted “complex legal and constitutional” issues. I agree that the issues raised are complex. I also agree with what the House of Lords Select Committee on the Constitution said; this was also raised by the noble and learned Lord, Lord Hope. It said that the UK Government and the Northern Ireland Executive should engage in a “constructive” manner.
I recognise that some noble Lords have concerns about the regulations providing unconditional access to abortions up to 12 weeks’ gestation. This provision was determined as the most appropriate way of meeting our statutory duty, and what CEDAW requires, by ensuring that women, including victims of sexual crime, can access services without undue delay while avoiding anything that could lead to further trauma or act as a barrier to access. Based on current public data, 86% of the abortions accessed by residents of Northern Ireland in England under the Abortion Act 1967 in 2018-19 took place prior to 12 weeks’ gestation and would be covered by this limit.
Before I finish winding up, I want to answer a point raised by my noble friend Lord Moylan and my noble and learned friend Lord Mackay on the international aspect of this obligation. It is true that the rules are domestic, so the duty to implement the CEDAW recommendations in this context is a matter of domestic law, which the Secretary of State is under a statutory duty to deliver, not a matter of international law. We recognise that Parliament has stepped in and imposed this duty on the Secretary of State for Northern Ireland on human rights grounds. I have addressed that directly.
In conclusion, we should bear in mind the fact that these further regulations are ultimately about ensuring that the regulations made in March 2020 are implemented. Essentially, they are about the rights of women and girls, and their being able to access medical treatment in distressing and difficult circumstances, where they have a right to choose what is right for them. We should act in a way to support them in these cases. That is why I commend the regulations to the House.
My Lords, I have listened carefully to this debate, and I would like to correct a couple of misapprehensions. Abortion services are available in Northern Ireland, and they are funded. There were 1,345 funded abortions in Northern Ireland, and there have been no instances in which people have been refused abortion in the way described by the Minister. More importantly, support services are also available. We do need more resources; we always need more resources.
Noble Lords have identified the important issues here as the protection of life and our constitutional settlement in Northern Ireland. To revert to the Minister’s last point, where Parliament has legislated, it can, using its sovereign powers, change the law. This matter of the CEDAW recommendations is not a matter of our international human rights obligations, and is therefore devolved. It is therefore a matter that the Northern Ireland Assembly can change.
I thank noble Lords for their thoughtful and considered contributions to the debate. I thank those who recognised the current situation and spoke to encourage the work of the Assembly. I also thank the noble and learned Lords, Lord Mackay and Lord Hope, and other noble Lords for their clear articulation of the nature of our constitutional devolution settlement, which is the product of the Good Friday agreement, which is under threat as we talk today. We have had people, particularly in the loyalist community, withdrawing their support from the Good Friday agreement.
Amendment to the Motion
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because (1) rather than expressing the reality of the union between the constituent parts of the United Kingdom, they place that union in jeopardy, depending as they do on the power in section 9 of the Northern Ireland (Executive Formation etc) Act 2019, which was passed despite all of the Members of Parliament representing seats in Northern Ireland who had taken their seats at Westminster voting against amending the Northern Ireland (Executive Formation etc) Bill on 9 July 2019 to require the Secretary of State to make regulations to give effect to the recommendations of the report of the Committee on the Elimination of all forms of Discrimination Against Women, published on 6 March 2018; (2) abortion remains devolved and the Northern Ireland Assembly and Executive have now been restored for more than a year; (3) rather than welcoming the restoration of devolution, the draft Regulations undermine it to a greater extent than the Abortion (Northern Ireland) (No. 2) Regulations 2020 as they address devolved policy competencies beyond abortion, including education and health; and (4) the remit of everything in the Northern Ireland (Executive Formation etc) Act 2019 is defined in terms of moving towards the restoration of the Executive which has taken place, so rather than making new regulations as if Stormont was still suspended, and asking Parliament to pass them, Her Majesty’s Government should instead be asking Parliament to repeal section 9.”
My Lords, before I move my amendment, perhaps I might make a point of clarification. I think the Minister misunderstood and misquoted what I said and I just want to clarify what I said, which was this. A vote took place on 9 July 2019 in which 100% of Northern Ireland MPs who take their seats in Northern Ireland voted no. I am sure that the House will have noted today that no Peers from Northern Ireland have voted in support of the regulations. I beg to test the opinion of the House.
Amendment to the Motion
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because they give the Secretary of State the power actively to commission discrimination in Northern Ireland by denying unborn human beings with disabilities the same protections afforded non-disabled human beings between 24 weeks gestation and full term; and because such commissioning would implicate the Secretary of State, and by extension Her Majesty’s Government, in the perpetuation of negative stereotypes towards people with disabilities, as it would provide that while unborn non-disabled human beings from 24 weeks’ gestation are worthy of protection from termination, those who might be born with disabilities are not.”
My Lords, I will keep my remarks very brief. I thank noble Lords who spoke in support of genuine equality. I am sure that that will be appreciated by disabled people and their families, whose voices are so often drowned out on this issue. They know, as I do, that the idea that these regulations are not discriminatory is absurd. I beg to test the opinion of the House.