Skip to main content

Northern Ireland: Supreme Court Ruling

Volume 791: debated on Thursday 7 June 2018


My Lords, with the leave of the House, I will repeat the response to an Urgent Question given by my right honourable friend the Secretary of State for Northern Ireland in the other place:

“I thank the honourable Member for Walthamstow for this Question and want to pay tribute to and recognise all the honourable Members who contributed to the debate on these issues in this House on Tuesday. I recognise the strength of feeling and the personal stories that lie behind this issue, many of which we heard on Tuesday. This is the case regardless of where people’s views lie. As I have said in this House before, abortion is an extremely sensitive issue and there are many strongly held views across all sides of the debate for reform right across the UK, including in Northern Ireland.

Members will be aware that this morning the Supreme Court issued its judgment in this case. The Government are carefully considering the full judgment and its implications. No formal declaration has been made by the court and the appeal has been dismissed, but the analysis and comments of the court on the issue of incompatibility will be clearly heard by this House and politicians in Northern Ireland. While the court made no formal declaration, a majority of judges stated their view that the laws of abortion in Northern Ireland are incompatible with Article 8 of the European Convention on Human Rights on the right to respect for private and family life in cases of fatal foetal abnormality, rape and incest. This is clearly a complex area of law and an extremely sensitive subject that raises a number of different issues to consider. The judgment, at over 140 pages in length, will need further consideration.

I am continuing to engage with parties in Northern Ireland, where these issues are understandably being raised and discussed. It is therefore important for all of us, including the people of Northern Ireland, to consider the judgment and to approach ongoing debate on this issue with due care and sensitivity. My urgent priority is to continue to engage with the parties in Northern Ireland to re-establish devolved government in Northern Ireland so that decisions can be taken there”.

My Lords, I thank the Minister for repeating the response today. The case today was in effect dismissed on a technicality because the Northern Ireland Human Rights Commission is an organisation, not an affected individual, but we are all too familiar with the individual cases and the individual women who have faced restriction under the current law, in extremely distressing circumstances in some of the cases that we have heard about, which has been harrowing for them and their families.

As the Minister said, a majority of judges found that the laws covering abortion in Northern Ireland are incompatible with Article 8 of the convention. The noble and learned Lord, Lord Mance, stated:

“Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible”.

There is some urgency now to ensure that the law is fit for purpose, as well as to debate the wider issues around decriminalisation and the accessibility of services across the UK. The ideal scenario, and I know the Minister agrees with this, would be for a devolved Assembly to take hold of this moment and debate changes to the law at Stormont. However, there is no functioning devolved Government in Northern Ireland. In the absence of a functioning Executive and Assembly, will the Government set out a clear timetable saying that if local parties are not prepared to come back to an Assembly then Westminster will have an obligation to act, on the moral and legal basis that UK law must be compatible with our convention obligations?

The wider issue here is that this case vividly highlights the importance of having a functioning devolved Assembly and Executive in Northern Ireland. Could the Minister please update the House on the Government’s most recent actions to bring this about? I do not at all underestimate his commitment, but we need to know what actions are being taken rather than hearing warm words such as “the Government want” and “it is a priority”.

I thank the noble Baroness. I wish I could give more than warm words at this time. We have to consider the judgment very carefully; it is 140 pages long and came out only this morning. However, the early analysis suggests that the technicality that the noble Baroness and I have both touched upon will in due course be addressed by another case, and that technicality will be eliminated.

The issue is therefore how this matter shall be addressed in Northern Ireland. Clearly, as I have said on a number of occasions on a number of matters, we would prefer a devolved Administration—a devolved Executive—to take these issues forward. None the less, the last time that the Assembly in Northern Ireland debated this issue on a cross-party basis—on each occasion regarding each of the elements that were part of the judgment today: the fatal foetal abnormalities, rape and incest—the Assembly itself did not endorse progress on these matters. It is important that the issue is addressed with some urgency but also with some care, because there are a number of wide implications that we must take on board. That is why at this stage we will consider the judgment very carefully to ensure that we understand exactly what it is saying, so that we can appreciate how to take the next steps.

My Lords, this is obviously a very charged and sensitive issue. As the Minister and the noble Baroness, Lady Smith, have said, the judgment will require a lot of detailed consideration. None the less, it is clear that there was a majority in the Supreme Court who, but for the fact that there was no legal standing on the part of the Northern Ireland Human Rights Commission, would have found a declaration of incompatibility. Given that under paragraph 3(c) of Schedule 2 to the Northern Ireland Act 1998 human rights and the observance and implementation of our international obligations, including human rights obligations, are an excepted matter and therefore fall within the responsibility of the Westminster Parliament, and given that both the relevant United Nations committee and now a majority in the Supreme Court have said that the current law of abortion in Northern Ireland is lacking with specific regard to Article 8 of the European convention, is there not some responsibility on the UK Government to address this matter with a degree of urgency, as the noble and learned Lord, Lord Mance, encouraged?

I certainly agree with those who have said that it would be far better if this were dealt with by the Northern Ireland Assembly. Indeed, my colleague in the Alliance Party of Northern Ireland, David Ford, had already brought in a Bill before Stormont was suspended with regard to addressing fatal foetal abnormality in relation to abortion. While that is obviously the best route to go down, as long as the Northern Ireland Assembly is not functioning there is within the current devolved settlement a responsibility on the UK Government to do something.

I thank the noble and learned Lord. He is absolutely right that the judgment itself, even on a cursory reading, does not allow us to escape the conclusions that have been drawn simply because there is a technical matter there. The obligation for us right now is to ensure that we are able to move forward on this matter. The challenge, however, is that we must ensure clarity from the parties and communities in Northern Ireland as to how. We do not wish to be seen as, in essence, trying to interfere from over the water deliberately to change what are clearly very deeply held views by a number of parties. None the less, the finding itself will need to be considered very carefully and we must do that in order to be clear that we are upholding our obligations, something that the Government will continue to do.

My Lords, this is a strange situation where the judgment is a non-judgment. Are the Government aware that the current situation on abortion in Northern Ireland is considered to be gender-based violence by the United Nations Committee on the Elimination of Discrimination against Women? In the face of that, while we have effective direct rule in Northern Ireland, could we not, if the Government are reluctant to do anything before the Assembly reconvenes, at least insist that a referendum is held on this issue in Northern Ireland?

I thank the noble Baroness. Abortion has been a devolved matter in Northern Ireland since long before the Executive. It is clear that the view across the communities in Northern Ireland when last tested in Stormont did not reach the position that she outlined. It is therefore important that we make progress in this matter on the basis of consent—that there is recognition within the communities of exactly what is going on. The idea that we would seek to act precipitately in this matter has wider constitutional implications. We need to spend a little more time considering the judgment, none the less recognising that elements within it need to be taken on board. I do not believe that a referendum is the way forward in this matter, particularly in the absence of the Stormont Executive and Assembly, but progress will need to be made. It is a question of how we do so.

My Lords, as the noble Baroness said, the judgment gives the appearance of being a non-judgment, but that is for a technical reason which is easily cured. There is no shortage of effective persons who could bring proceedings and, if they did, due to the way that judicial precedent works, the result would be perfectly obvious. Will the Government bear in mind very carefully the fact that the judgment is just a hair’s breadth away from a declaration of incompatibility at the instance of an effective person?

My Lords, human rights and our international obligations under human rights conventions are not a devolved issue. I therefore reiterate the point made by my noble friend Lady Smith of Basildon: it is imperative that the Government set out a timetable to re-establish devolved government. In the absence of meeting such a timetable, will the Government stop kicking the can of the human rights of women and others in Northern Ireland down the line in the hope that someone else will solve a problem that seems intractable?

The can cannot be kicked down the road for ever. A solution needs to be found. We desperately and dearly hope that that solution is found by a new Executive recognising their responsibilities to deliver for the women and girls of Northern Ireland.